Hanzic v Cabramatta Community Centre Inc

[1999] NSWSC 1205

CITATION:	Hanzic v. Cabramatta Community Centre Inc & Ors [1999] NSWSC 1205
CURRENT JURISDICTION:	civil
FILE NUMBER(S):	11310/89
HEARING DATE(S):	November 16, 17, 18, 19, 22 1999
JUDGMENT DATE:	15 December 1999
PARTIES :	Phyllis Hansic Cabramatta Community Centre Inc & Ors
JUDGMENT OF:	Wood CJatCL

COUNSEL :	P: P. Capelin QC/Mr. Carney 1st Def: D.R. Russell QC 2nd Def: Woods with T. Barrett
SOLICITORS:	P: Lewarne & Goldsmith 1 Def; Dunhill Madden Butler 2 Def: Brown Solicitors
CATCHWORDS:	personal injury; occupier's liability
DECISION:	Verdict for Plaintiff against first and second defendants.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 11310 of 1989

WOOD CJ at CL

WEDNESDAY 15 DECEMBER 1999

HANZIC v CABRAMATTA COMMUNITY CENTRE INC & ANOR

JUDGMENT

1   WOOD CJ at CL:

BACKGROUND

2   On 9 January 1986 the plaintiff was working as a child care supervisor at a vacation care programme conducted by the first defendant, the Cabramatta Community Centre, within the premises constituting the Villawood Public School. Those premises were owned by the second defendant, the State of New South Wales, and they were used in term time as a primary school. 3   During the vacation period, the second defendant permitted the first defendant to use the craft room, as it was described, as well as the toilet facilities and such portions of the schoolyard as were needed, for its vacational care programme. 4   The 9th January 1986 was a wet day. In order to keep the children occupied arrangements were made to show them some videos. For that purpose, chairs needed to be moved from an elevated stage area to the body of the room. In the course of setting up the room, the plaintiff and some other workers made their way up to and down from the stage, which stood at a height of 860mm above the floor of the hall, using a set of centrally located stairs. These stairs were somewhat primitive, comprising four open steps secured at the top to the stage, and at the bottom to the floor of the hall. They did not have any handrail. To their condition at the time of the accident I will return, as it is in relation to that issue that the plaintiff’s claim turns. 5   It was the plaintiff’s evidence that as she was going up the stairs, she noticed a box containing computer paper at the front of the stage to her right. Fearing that someone may trip over it, she reached over, picked it up, turned, and went to descend the stairs. As she did so she slipped. She fell to the ground, twisting her left ankle and striking her back. Her ankle quickly swelled up and she was taken to hospital. X-rays were taken, her ankle was strapped and she was advised to see her general practitioner. Later she was referred to an orthopaedic specialist. She was placed in a short leg plaster, and treated with physiotherapy and analgesics. 6   For some years afterwards she walked with the aid of a single crutch, two crutches, or a walking stick. As time passed she began to experience pain in the hip and lower back. It would seem that this aggravation became obvious in about mid 1988. Eventually she was referred to medical staff at the Royal North Shore Pain Management Centre for further treatment. From about 1990 she found that she was experiencing falls when the right leg collapsed from under her. These falls she attributed to pain in the back and hip occasioned by the change in posture caused by the use of walking aids, and by the steps that she had taken to reduce stress on her injured left ankle. Eventually, on 4 February 1993, while being treated at the North Shore Pain Management Centre, she suffered one such fall down some stairs, occurring, according to her when her right leg gave way. In this fall she suffered a fracture of the malleolus in the left ankle. 7   Upon the plaintiff’s case, she developed severe disabilities as a result of these events. They led to multiple attempts at treatment by a number of medical practitioners as well as numerous hospital admissions, culminating most recently in the implantation of a morphine pump, designed to reduce her pain, and thereby to take her off the considerable volume of medication that was being prescribed, and to increase her mobility. The outcome of that procedure so far has been favourable, in that the plaintiff has made considerable progress in reducing the vast amount of weight that she put on during the period of inactivity, in reducing her dependence on medication, and in improving her outlook on life. 8   It is her case that the somewhat dramatic and extensive sequelae of what, on face value, might have been regarded as a simple ankle strain, were all the direct consequence of the original accident, and are organically based. It is the case of the defendants, however, that the consequences outlined have been exaggerated. The plaintiff, they submit, has been less than genuine in her complaints. Alternatively, it is submitted, if her disabilities are genuine, then they are attributable to causes other than the original accident. It is the defendant’s case additionally, and independently of the medical issues, that the stairs were safe, that there was no breach of any duty of care on their part, and that if there was any such breach of duty of care, then the plaintiff was guilty of contributory negligence in not maintaining “a proper lookout”. 9   Both defendants conceded the existence of a general duty to exercise reasonable care for the safety of the plaintiff, on the part of the first defendant as an occupier and employer, and on the part of the second defendant as owner and joint occupier of the premises. The content of that duty of care in relation to the steps, the occurrence of any breach, and the presence of a causal connection between any breach and the fall are, however, very much in dispute.

LIABILITY

10   It was the plaintiff’s case that the stairs were unsafe in so far as they were worn and slippery, in so far as the width of the tread or going was too short, and in so far as the tread was warped. 11   The plaintiff gave evidence to the effect that she first conducted a vacation care programme at the school in August/September 1984. She was also involved in similar programmes at the school during the 1985 school holidays, leading up to the January 1986 programme. It was in those circumstances that she came to be aware of the state of the stairs which she described as having a surface that was “very shiny”, and wood that was “sort of pitted with wear”. She noticed that when walking upon them they “tended to be very slippery”. She gave the following evidence in this regard:

“Q. Prior to January 1986, what had you observed about those stairs? A. That the stairs were very shiny, very slippery. They were of a rough wood, a worn rough wood and I felt quite unsafe. They were dangerous.
Q. What did you notice about them in relation to the children? A. A number of children had slipped on the stairs while using the stairs.
Q. In 1985? A. yes.
Q. And did you do something about reporting the condition of the stairs? A. Yes.
Q. What did you do? A. I spoke to the principal of the school.”

The school principal she identified as Brian Chudleigh. That conversation was received into evidence in relation to the second defendant. The plaintiff placed the conversation as occurring in December 1984, when she went to the school to pick up the keys.

12   Additionally, she said that she mentioned the unsafe condition of the stairs in the written reports that she handed to the first defendant at the conclusion of the various programmes that she had supervised at the school. These reports dealt with matters such as the activities offered, visits of significance, and any problems that emerged, as well as matters of financial interest. 13   It was accepted that written reports of this kind were provided to the first defendant at the conclusion of the various programmes, but they were not produced in answer to a subpoena or calls for their production. Unfortunately it would appear, as Ms Collie explained, that they were destroyed in about 1993, when the Centre was relocated. In those circumstances, I allowed secondary evidence to be given of the reports, such evidence to be confined to the plaintiff’s case in relation to the first defendant. In this regard, the plaintiff said:

“Q. In those reports that went into those ladies did you make any reference to the condition of those stairs? A. Yes I did.
Q. What was that reference? A. I explained that the stairs were slippery, that they were shiny, that they were pitted and as a number of children had slipped on the stairs, that during the time that I was supposed to run a fire drill I could not do it because the only access was for the children to use the stairs and because of the dangerous condition of the stairs we would not run a fire drill and I had to verbally do one with one of them watching what the instructions were.
Q. Without using the Stairs? A. Without using the stairs, yes.”

14   So far as the other falls that were seen by the plaintiff were concerned, she said:

“A. the first school holidays that I was there, there were a number of children that fell down the stairs and one of the adults also slipped on the stairs and when I noticed how dangerous they were, that is when I made the decision that the stair area, the stage area, was out of bounds to the children.
Q. And the reason for that?
A. Because of the stairs being so slippery and shiny and I was frightened that someone would get seriously injured.”

The worker who fell, she said was a girl on work experience, who slipped on the stairs during the August/September 1984 programme. It was during this programme she said that she placed the stairs out of bounds for the children, other than some of the older children who were allowed on the stage for supervised activities.

15   Additionally to the written reports, which were included in an exercise book handed in at the conclusion of each programme, the plaintiff said that she spoke of her concerns to one of the social workers who came to the Centre. In this regard she said:

“Q. Where do you say you spoke to this person? A. This person was at the centre, because on this particular day they came down to the centre, for what I do not recall, but the oral conversation was to the effect that I was not running a fire drill with the children because of the nature of the stairs and that I had walked the kids through verbally a fire drill and this person was there in the room as I did it and the comment to me was that “That’s okay. That is satisfactory because I wouldn’t, she wouldn’t use the stairs either.”

16   The relevance of a fire drill, in relation to these stairs, concerned the circumstance that the windows to the room were barred, and that in the event of a fire commencing in the entrance area, escape could only be achieved by going up the stairs, over the stage and out to the playground via a storeroom. 17   The fall which the plaintiff experienced on 9th January, she described in the following terms:

“Q. What happened on one occasion when you were on the stairs? A. I had walked up and taken down one lot of chairs. I was walking up again and I thought I needed to remove that box of paper because it could cause someone to trip on it. So I was standing on the second step from the bottom. I leant over and picked up the box of paper in both hands. I turned around to go down the stairs and when I put my right foot forward my feet just slipped out from underneath me.
Q. Do you recall what sort of shoes you had on? A. I had a leather sandal on.
Q. When your feet slipped out from underneath you did you have any control at all? A. No, none whatsoever”.

18   In cross examination she gave the following evidence concerning this event:

“Q. As I understood you yesterday, you put your right foot forward? A. yes.
Q. As you put your right foot forward your feet slipped out from underneath you? A. yes.
Q. And you don’t tell his Honour that you have any recollection of your right foot actually touching the next stop down? A. yes, as I put my foot onto the bottom step, that is when it stepped on the bottom step, slipped out.
…
Q. So you are telling his Honour that you slowly and carefully picked up the box? A. Yes.
Q. And you slowly and carefully turned? A. yes.
Q. And you slowly and carefully took your right foot off the second step? A. yes.
Q. And started to place it down? A. yes.
Q. And you slowly and carefully put it on the next step down? A. I don’t recall. I can’t recall putting my full weight on the next step. As I went to put it onto the next step that’s when my foot slipped out from underneath.
Q. So your weight was still on the back foot? A. yes.
Q. You tell his Honour that the back foot slipped? A. I was saying that both slipped out. I cannot recall which of the feet that actually slipped. They both went out from underneath me. I can’t accurately say one (way) or the other.”

19 Dr. Olsen, an occupational health, safety and rehabilitation consultant, was called in the plaintiff’s case. No expert was called by either defendant in relation to the accident, in the case of the second defendant because of its failure to serve any expert reports, either in accordance with the Supreme Court Rules, or in accordance with directions given on 14 July 1998, 14 April 1999 and 26 August 1999. In circumstances where the matter was subject to Differential Case Management, this was an inexcusable omission on its part. 20 Dr. Olsen examined what were said to be the stairs on 21 April 1994. He described them as comprising a set of four steps set into the side rails, at an angle of 37 degrees to the horizontal and of irregular step height. He said that subjectively the steps seemed to be slippery, a conclusion that was confirmed, in his opinion, by a drag and slide test which he conducted and which produced a coefficient of dynamic friction across the grain of 0.28 and 0.32 along the grain. This his said was less than an acceptable standard of 0.4. He was cross examined in relation to whether his drag and slide test used conformed with the test proposed in the Australian Standard 366S.1 then in force. He agreed that it did not but said that he and other experts did not employ or agree with the method suggested in that Standard. 21 Additionally it was his evidence that the tread and going of the first and second steps were insufficient at 232mm, a distance that fell short of the minimum set down by the Building Code of Australia that was introduced in 1990, and that specified in Ordinance 70, of 250mm. The practical effect he described as follows:

“There is lesser room to place the foot and so there would be an increased risk of falling…”.

22   The first step he said was warped in a concave manner with a depth of 7mm in the middle of the step. The warp in the second step of about 2mm he described as involving a concavity over most of its area, so that it “curved from one edge downwards and then back up again on the other side”. Warping was not a “good effect”, which he explained thus:

“A. Depending on what part you step onto, so if you step on the part that slopes away, then the effect of coefficient of friction would be there, so it becomes more slippery. If you step on the other side, it goes up, then you may have a reverse effect”.

23   The steps he also said were worn with deep pitting and gouging of the front edge of each step. There were remnants of old paint on the inside of the side supports and the extremities where there had been little foot traffic. Their slipperiness he said could have been reduced by fitting them with a simple adhesive non slip strip such as that of a carborundum finish, at a cost not exceeding $100. 24   His evidence was of limited value so far as it was based on observations and tests made eight years after the event, at least in relation to the extent to which he judged the steps to have been worn or slippery, since he could not say whether they were in the same condition in 1986. His assessment in relation to the sufficiency of the width of the tread and going was of more significance, assuming that the stairs in place when he examined them, were the stairs on which the plaintiff fell. The second defendant raised this squarely as an issue, suggesting that the 1986 stairs were damaged by fire in 1988 and replaced with a new set of stairs. This had a relevance both for Dr. Olsen’s opinion, and also for the general credibility and reliability of those witnesses called by the second defendant who floated, with varying degrees of confidence, the proposition that the stairs had been relaced and that those seen by Dr. Olsen were not the original stairs. 25   It so happened that three sets of photographs of the stage and stair area were tendered. They comprised a set of three polaroid photographs taken by the plaintiff immediately after the accident; two photographs taken after the 1988 fire, and four photographs taken by Dr. Olsen on 21 April 1994. 26   To the naked eye, these photographs appear to depict the same set of stairs, being a basic unit comprising four steps with open risers, without any handrails, and located in the same position. The 1998 photos do not suggest any evidence of damage to them. It is quite impossible to detect any difference between the photographs, let alone to conceive of any reason why a set of stairs, apparently undamaged in the fire, would have been replaced by a virtually identical unit. 27   Although not calling any expert witness, the second defendant did call two senior staff members of the Cabramatta Community Centre, and two former principals of the school. The first was Ms Bamforth, who commenced work as a Community Development Worker located in the portable building at the school, in October 1985. The first vacation care program she witnessed was that which commenced in January 1986. Her position she described as the first line supervisor for the project. 28   Although she said that no complaint had been made to her about the stairs, her evidence was almost valueless in that regard since she had not been on the site during any of the vacation periods prior to the one in which the plaintiff was injured. She had no recollection of reading the reports that admittedly were prepared in relation to the vacation care programme. Although she had an impression that the stairs in the craft room were renewed, she accepted that she had not seen any new stairs being installed. She agreed in cross examination that she could not be positive that this did occur, and she said that she had no recollection of ever walking upon the stairs in this room. 29   Ms Collie held the position of Co-ordinator with the Cabramatta Community Centre from February 1985. Although she had no recollection of seeing any complaint concerning the stairs in a report from the plaintiff, her evidence tended to assist the plaintiff’s case so far as she recalled her “raising the issue of the stage” in May or October 1985. The evidence she gave in this regard was as follows:

“Q. What was the problem there? A. Well, that she considered it dangerous for the children so they were not permitted to go up on the stage.
Q. Did she tell you why she considered it dangerous? A. I can’t remember to be honest. I know that I heartedly concurred with what she said, but whether I was because --
Q. Don’t speculate? A. No I don’t remember, sorry.”
…
“Q. I want to ask you, specifically, on a certain topic. I want you to pause before you answer the question. Have you ever, prior to Mrs. Hanzic being injured, ever had any complaints made to you about the state of the stairs in the room at the vacation care programme conducted at the Villawood Public School? A. I don’t think so.”

30   This latter answer she explained, in cross examination, meant that she “did not remember”, an answer that fell far short of a denial of the making of a complaint concerning the stairs. The earlier part of the answer however tends to fit in with the plaintiff’s version of events. This witness did acknowledge that the plaintiff wrote up reports concerning the programme and also an accident book. She described her as a “good reporter” and an excellent co-ordinator. She had no recollection of the contents of the reports, and was not in a position to deny that there had been a mention of falls on the stairs. She did not think that she had used the stairs herself. In those circumstances, her evidence does not advance the defendants’ case at all. 31   Mr. Charlton was the principal of the school from late January 1986 until the end of 1989. He was accordingly not in any position to give evidence as to events or conversations prior to the plaintiff’s fall. He did, however, give evidence as to the use of the room, and of the stage, in the years following the event. He was unaware of any accident over that period, involving the stairs, that became the subject of the accident reporting procedure that was in place. 32   He said that he had not experienced any difficulty himself when using the stairs, and did not consider them to have been slippery. He was no longer the principal when the fire damage to the craft room was repaired, and he was therefore not in a position to say whether the stairs were later replaced. He agreed that he was the person depicted in the post fire photographs standing on the steps, and also agreed that they had not been damaged in a way preventing him from doing that. 33   In these circumstances he does not assist the defendants’ case in relation to the replacement of the stairs, or in relation to any matters that preceded the plaintiff’s fall. 34   Mr. Chudleigh was the principal between 1982 and 1985. The stairs in the room before the plaintiff’s fall he described as made of “weathered timber”, and as being “pretty rough in nature”. Before the erection of a partition in 1985 the hall was used for assemblies, dance and music and for classes. He had no recollection of any accidents, in this area, of a serious nature. He had not experienced any problem himself with the stairs and had not found them slippery. 35   He had no specific recollection of meeting the plaintiff, or of any conversation with her concerning the facilities used by the vacation car programme. When shown the photograph taken in 1994 of the stairs and stage, he suggested that they differed from the condition which he recollected in his time as principal. He said that they were then untreated and were the colour of a weathered paling fence. He also thought that there were only three steps. 36   He acknowledged that he did not become aware of the plaintiff’s accident until he was spoken to, in 1990 or 1991, by the solicitors for the second defendant. 37   In my view, his evidence was found wanting in so far as he had no recollection of any work being undertaken, in his time, to repair the stairs, in so far as he recalled the stairs to have originally comprised three steps, and in so far as he suggested that the stairs in the photographs differed in appearance from those that he recalled. So far as I can see, the photographs which I find were taken in 1986, 1988 and 1994, show no such difference. No other witness suggested that the stairs were originally of three steps - a matter that would have involved a substantial increase in step height from that measured which varied between 162mm and 170mm, to one in the order of 215mm. 38   I do not accept him as a reliable witness, and prefer the evidence of the plaintiff to his wherever they are in conflict. The impression which he left upon me was of a dogmatic and defensive person who was not prepared to concede any possibility of fault on his part, and whose recollection of the events was less than accurate. 39   In the circumstances, I am satisfied, upon a balance of probabilities, that the stairs seen by Dr. Olsen were those on which the plaintiff fell, that the tread and going were as he described, and that the width of the tread was inadequate. I accept the plaintiff’s evidence that the steps were slippery, that prior to her accident, several children and other workers had slipped on them, and that she drew their condition to the attention of Mr. Chudleigh, and to the attention of employees of the first defendant, in the manner she described. 40   Her evidence in this regard was challenged so far as a statement taken by a loss investigator attributed to her the observation that:

“A number of children have slipped on the stairs prior to my accident. As a result of this I prevented the kids from using the staircase. I did not report these incidents to the Cabramatta Community Centre Management because they were not serious.”

The plaintiff denied making any such comment, and it is in any event equivocal. Even if made, it is equally capable of being understood as a reference to not reporting or recording in the Accident Book, individual minor accidents which did not involve any injury to a child.

41   In accepting the plaintiff’s evidence, I state that she impressed me generally as a witness of the truth, who had been an active and responsible member of the community, and not a person whose credit was otherwise dented. 42   In coming to this conclusion I was also impressed by the evidence of her co-workers, Ms Woolcock and Ms Jamieson, to the effect that each had seen children fall on the stairs before the plaintiff’s accident. 43   Ms Woolcock said that she had a fall herself while going up them, during 1985. She gave evidence of this in the following terms:

“Q. When you walked up and down them, what did you notice about them? A. Well, I actually did fall up them myself once but they are very old stairs. They are worn, they are slippery. They appeared at the time to have some sort of lacquer on them that had worn away in parts. There was no railing and they are not the - the tread is not an exact width of your foot. Like, it is very difficult, worse coming down than going up because they overlap the other one at the back.
Q. What was the effect of coming down when you put your foot forward? A. You couldn’t really put your whole foot - you had to put your foot sideways to get down the stairs.”

To her knowledge, three children fell. It was as a result of this she recalled, that the plaintiff banned their use by the children.

44   Mrs. Jamieson similarly said she saw children fall up and down the stairs on a number of occasions during 1985. She confirmed that as a consequence they were banned by the plaintiff from using them. She described the stairs in the following terms:

“Q. What did you notice about the stairs? A. The stairs were very worn. The tread was very short.
Q. The tread being? A. The width, the width of the step was very short; worn in a smooth manner that they were very slippery.”

45   Her evidence was not challenged in cross examination, nor, to any significant extent was that of Ms. Woolcock. Each had the advantage of working inside the room where the plaintiff fell, and of gaining a particular familiarity with the state of the stairs. Neither had an interest to serve, and their credit was not diminished in cross examination, either generally or by reference to the statements they made at the time of the plaintiff’s fall. 46   It was submitted that the mere fact of prior falls was not of itself probative of the stairs being slippery, or of the existence of any causal relationship between their condition and the plaintiff’s fall. In a general way there is a logical attraction to such a proposition, since the other falls may theoretically have resulted from carelessness or skylarking on the part of the plaintiff or the children, or the workers involved. There was, however, no suggestion that there was any conduct of this sort involved - a matter as to which the defendants bore, at least, an evidentiary onus if they were to rely upon it as an explanation for proven falls. 47   So far as the plaintiff is concerned, her evidence is that she was acting carefully, being aware of the problem which had caused her to place a ban upon the children using the stairs. That she was a careful person is indicated by the circumstance that the very activity she was undertaking, at the time of the accident, was to remove a potential cause for injury. There is no reason to suppose that she overbalanced as the result of turning quickly with the box in her hands, or was otherwise inattentive for her own safety. 48   In all these circumstances I am satisfied that the stairs were in an unsafe state and had been so for a considerable time before the plaintiff’s fall. I am also satisfied that the fall occurred without any fault or lack of care on the plaintiff’s part, while she was in the course of moving from the second step to the first step. The direct cause of the fall, I find, was the worn and slippery state of the steps, compounded by the narrow tread width and the absence of any protective rails by means of which she could have broken her fall. 49   The defence of contributory negligence, based upon an alleged failure on the plaintiff’s part “to keep a proper lookout” fails. I turn then to the question whether the defendants or either of them are liable in law for this event. 50   It is beyond argument that the first defendant was the occupier of the craft room at the relevant time, and also the employer of the plaintiff. As such it owed a duty to exercise reasonable care for her safety - as an occupier, in accordance with the principles discussed in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479; and as an employer in accordance with the principles discussed in Kondis v State Transport Authority 154 CLR 672 at 687 and 689. Its duty of care as an employer extended to the provision of a safe place of work. The plaintiff’s duties required her to use the stage and to access it by means of a set of stairs which were unsafe. They formed part of her place of work. 51 Not only were the stairs unsafe upon reasonable inspection, but their unsafeness and the occurrence of prior falls had been reported to the first defendant but ignored. In those circumstances the plaintiff has established negligence on its part both as an occupier and as her employer. 52 So far as the second defendant is concerned there was no issue as to its ownership and control of the premises, or of the fact that it was a dual occupier. Counsel for this party expressly eschewed reliance upon any principle involving a special immunity from liability in tort for personal injury, caused by the condition of leased premises, that may have been approved in Cavalier v Pope (1910) AC 428, a decision not followed in Parker v South Australian Housing Trust (1986) 41 SASR 493. Its inconsistency with the modern law of negligence has been accepted by the High Court in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. The concession was accordingly well made. 53 As a dual occupier, with the degree of control over the premises which the second defendant had, namely a right to determine which portion of the premises the first defendant could use, its use of them during term time, and the acceptance of an obligation to maintain security in relation to them, this defendant had an independent duty to use care towards persons coming lawfully onto the premises. The persons within the umbrella of that duty of care must be taken to have included the staff of the vacation care centre which was permitted to use the premises, as well as the children who attended its programmes. The existence and extent of its duty as a dual occupier is as described in Wheat v E Lacon & Co Ltd (1966) AC 552, applied in Hanson v Mathews Bros Contractors Ltd (1990) 55 SASR 183 and followed in Hawkins Construction Co Ltd v Everson Swindel (1968) NZLR 306. 54 The second defendant placed some reliance on the decisions of the Court of Appeal in Stannus v Graham (1994) ATR 81-293 and Morgan v Sherton (1999) 46 NSWLR 141. 55 The first is a decision on its own facts so far as it turned upon the liability of an owner/occupier for a condition of which it was unaware, and it is distinguishable in view of my finding that the unsafe condition of the stairs was brought to the attention of the school principal before the fall, and also upon the basis that these stairs were so constructed as to be unsafe. 56 The present is not a case of an unsuspected or unknown defect, tortious liability for which would depend upon the existence of a duty to inspect, of the kind rejected in Aslandis v Atsikados and the other decisions referred to in Stannus. 57   The second decision is concerned with the proposition that while a duty of care is owed by an occupier not merely to those who are reasonable and careful, but also to those who might fail to take proper care for their own safety, that duty will not necessarily extend to protect an entrant from the risk of injury that comes with foolhardy or reckless conduct. The present is not such a case. The plaintiff’s conduct could not by any stretch of imagination be described as foolhardy or reckless. 58   The risk of a fall was, in the present case, both obvious and foreseeable. The problem of slipperiness could have been addressed simply and cheaply by the provision of an adhesive strip, or by the provision of a new set of stairs which could have accommodated a wider tread, consistent step heights, handrails, and steps that were not worn, warped or slippery. The failure of the second defendant to address the problem once brought to the attention of the school principal, and its actions otherwise in providing a set of stairs that were unsafe, constituted a breach of its duty of care. 59   Since I am not persuaded that the fall occurred through any fault on the part of the plaintiff, or by overbalancing on her part, I am satisfied that a causal connection has been established. She is entitled to a verdict against each defendant. Contributory negligence has not been established, and no occasion arises for any apportionment of liability. As between the defendants, agreement has been reached as to the manner in which they will apportion liability between themselves. Accordingly there is no need for me to address the cross claims.

DAMAGES

60   In a case involving such a dramatic development from a relatively minor ligamentous ankle strain to an apparent condition of substantial disability, it is necessary to subject the plaintiff’s evidence, as well as that of the treating or assessing medical practitioners, to a very close examination. 61   That evidence needs to be considered in the light of the following background:

(i) On 10 February 1951 the plaintiff was born
(ii) On 31 March 1973 the plaintiff was married
(iii) On 29 March 1974 her first child, Bianca, was born
(iv) On 21 October 1975 her second child, Michelle, was born
(v) On 13 October 1977 her third child, Faith, was born
(vi) On 7 March 1980 her twins Alison and Karen were born
(vii) On 6 January 1983 her fifth child, Edouard, was born.

(viii) On 9 December 1984, the plaintiff began work as a permanent part time pharmacy assistant, at Liverpool;

(ix) On 9 January 1986, the fall in the craft room occurred, leading to the plaintiff being admitted to the Auburn District Hospital for x-rays and strapping and follow up by her general practitioner, Dr. Zaman, who treated her between 14 January 1986 and 1991.

The Medical Evidence

62   The evidence revealed that:

(i) On 29 January 1986 the plaintiff saw Dr. Trevitt, an orthopaedic surgeon who reported that:

“ her symptoms are consistent with a diagnosis of sprain over the lateral ligament of her left ankle but the situation is now complicated by stiffness in the muscles and other ligaments causing a fixed equinus deformity of the left ankle because of the pain. I have arranged some physiotherapy in an effort to improve the position of the left ankle and to try and get the patient weight bearing so that she can start to walk.”

(ii) On 13 February 1986 Dr. Trevitt reported:

“This patient’s left ankle is certainly improving a great deal with physiotherapy and she is now almost to the neutral position when weight bearing. However, her progress is becoming complicated by the severe pain and swelling she has experienced over the last few days with weight bearing.
I feel that she needs a below knee walking plaster in order to let the situation settle down now and would plan on removing this in a fortnight and continuing with further physiotherapy subsequently.”


(iii) On 27 February 1986 Dr. Trevitt reported that he had removed the patient’s plaster and noted that her left ankle was in the plantigrade position.

(iv) On 26 June 1986, Dr. Trevitt reviewed the plaintiff. Clinical examination showed a stiff ankle gait on the left and pain at all extremes of movement. He noted that he had advised the plaintiff that he did not believe that further physiotherapy or external treatment would help the situation. He expected further improvement over time provided that she resumed her normal life style and increased her daily activities.

(v) On 30 June 1986 the plaintiff saw Dr. Deter Giblin , an orthopaedic surgeon, on referral from Dr. Zaman. At that time she was complaining of pain ‘all around the ankle’ and was using a single crutch.

(vi) On 8 July, 22 July and 12 August 1986, the plaintiff was again seen by Dr. Giblin who noted that while blood tests were clear, as was the stress x-ray, which he carried out on 8 July, the bone scan showed increased uptake in the left ankle suggestive of arthritis.

(vii) On 7 September 1987, she was reported by Dr. Giblin as still having persisting symptoms.

(viii) On 15 December 1987, tomograms were performed and reported as normal.

(ix) On 14 January 1988, Dr. Giblin reported that her left ankle was still sore, and he noted that she was on a crutch. She was found to be tender in the antero-lateral aspect of the ankle joint which was stable; there was no obvious muscle wasting. Dr. Giblin opined:

“I feel that she has genuine soft tissue symptoms in her ankle reasonably causally related to the alleged accident.
Her symptoms will probably persist for an indeterminate period of time, she will be unfit for her pre-injury job during this period which may last for a year or more.
She would be fit for a sedentary sit down position where she did not have to stand or walk. The longer term outlook is unclear although she would probably be more prone to arthritic changes in the ankle.”


(x) During the period 1986 to 1988, the plaintiff underwent various courses of physiotherapy and acupuncture, with little relief from the former but with some relief from the latter.

(xi) On 6 September 1988, the plaintiff was seen by Dr. Graham Mahony, who reported:

“The above patient gave a history of sustaining an injury to the left ankle and from the records available it appears she could have sustained an injury to the lateral ligament of her left ankle. It is consistent that the fall she described could have produced such a lesion.
She subsequently has complained of back pain and pain in the right hip and the pain could be associated with a low lumbar back strain as well as generalised strain on the right hip which could be related to altered posture. There does appear to be some over reaction, however in regard to the left ankle although it is reasonable that she does have some persisting discomfort. I do feel she could benefit from further investigations and treatment and I would consider her fit for activities not involving significant weight bearing.”


This appears to have been the first medical record taken of hip and back pain; it fits in with the evidence of the emergence of significant back symptoms by about 1988.

(xii) On 9 September 1998, the plaintiff was seen by Dr. Grady for assessment of her mental and emotional state. At that stage he was unable to reach a firm psychiatric diagnosis upon the information available, and without an orthopaedic opinion that showed her complaints and disability to be commensurate with the injury suffered. He did, however, record a history of pain in the right hip, and of strained marital relationships attributable to her problems and her difficulties with sexual intercourse due to pain.

(xiii) Dr. Cunningham saw the plaintiff on 17 November, 1998, and similarly recorded a history of pain in the left ankle, right hip and lumbar spine. He was of the opinion:

“This patient has sustained a severe strain of the left ankle as a result of a fall at work nearly three years ago. A reflex sympathetic dystrophy has developed effecting (sic) this ankle.
This condition is very difficult to treat and shows a very poor response to any type of treatment.
The patient remains unfit to return to work and is only fit for a sedentary job where transport is not a problem.
The long term prognosis must be guarded.”


(xiv) On 5 January 1990, the plaintiff also saw Dr. Slater, an ankle specialist, upon referral from Dr. Cross. He referred her to Dr. Ted Morgan, apparently with a diagnosis of sympathetic reflex dystrophy in the ankle.

(xv) On 24 January 1990, the plaintiff saw Dr. Ted Morgan, a pain management consultant, for the first time at the Royal North Shore Pain Management Centre (‘the Pain Clinic’). His impression was one of:

“right L5/S1 facet joint derangement consequent upon the basic leg limp inequality and the effect of bearing weight preferentially on the right leg when there was pain in the left ankle. The impression therefore is of:
(1) Chronic entrapment of perforating cutaneous branches of the sural communicating nerve above the right lateral malleolus.
(2) Mild sympathetic dystrophy
(3) L5/S1 facet joint dysfunction causing right leg pain.”

(xvi) Over the ensuing year Dr. Morgan injected the right L5/S1 facet joint and the sural communicating nerve entrapment sites, with temporary relief.

63   (xvii) On 18 January 1991, the plaintiff was first seen by Professor Michael Cousins, the head of the Department of Anaesthesia and Pain Management at Royal North Shore Hospital, when she was admitted to that hospital with a two week history of severe pain in the low back. A diagnosis of myofacial pain with acute muscle spasms of the lumbar paravertebral muscles was made, and treatment was provided by placement of an epidural catheter through which epidural fentanyl and marcaine were administered. Physiotherapy was also provided.

(xviii) The plaintiff’s history thereafter, as Professor Cousins noted in his report of 17 August 1994, was one of repeated admissions to the North Shore Hospital or the Pain Clinic, following acute episodes of pain, back spasm, and falls, of review by a number of specialists for investigation of possible organic causes for her complaints, and of adjustment of her medication.

(xix) On 15 February 1991, the plaintiff was first seen by Dr. Dallas, who thereafter assumed responsibility to “top up various medications prescribed by the Pain Clinic, and to co-ordinate management external to the hospital system”. In his first report he noted that the prognosis was very difficult to assess, and that the various treatment groups in the Centre were unsure of the final outcome. In his subsequent report, dated 15 November 1999, he confirmed that the plaintiff had been consistently on “high doses of anti-depressants, anti-inflammatory medication and analgesics” for the persistent pain for which she had been treated. The left ankle sprain and subsequent fracture, he said, caused a sympathetic dystrophy to develop. The long term results he again noted were “hard to predict.”

64   (xx) On 17 February 1991, the plaintiff was admitted to the Pain Clinic under the care of Dr. Schwarzer. During this admission a history was taken of severe exacerbation of back pain, as well as of pain in the right leg, left ankle and right hip, of spasms, and of falls. The plaintiff undertook the pain management programme as an in-patient until 16 March 1991, with some progress being reported both in terms of pain reduction and increased activity level. Advice was given to her regarding posture, relaxation, management of household duties, restrictions on manual work, exercise, the need to pace herself and to pass on some of her domestic responsibility to others, and the like. She was supplied with a TENS machine for her lower back. She was reported as having participated well in the programme and to have displayed a “very determined attitude”. At the time of her admission she had presented as a “very depressed, very anxious and overweight woman who was very tearful”, but by the time of her discharge she was assessed as falling within the normal range on the depression scales.

(xxi) Dr. Zaman reported, consistently with the position recorded so far, that by 1991, the plaintiff had changed from the “very pleasant, happy, outgoing person” he had previously known, to a “tense, edgy, aggressive and impatient person”. These changes he said were noticeable from August 1987, by which time she was beginning to have problems with her marriage. Again, this accords with her evidence as to her frustration with the pain and inability to do the things expected of a wife.

(xxii) In November 1991, the plaintiff was readmitted to Royal North Shore Hospital, for administration of intramuscular morphine, following an acute episode.

(xxiii) On 26 February 1992, the plaintiff was reviewed at the Pain Clinic, it being noted that she had been experiencing further acute episodes of muscle spasm that had required hospitalisation, and that she was still suffering episodes of the right leg ‘giving way’ when the pain became severe. The problem was assessed to be one of continuing muscle spasm.

(xxiv) In May and August 1992 the plaintiff was referred for urological and gastro-enterological investigation following the report of symptoms in these areas.

(xxc) From August 1992 she resumed physiotherapy as an out patient at the Pain Clinic, attending twice weekly.

(xxvi) In December 1992, she was hospitalised for sixteen days for further treatment, after a severe episode of back pain, during which period she received an epidural morphine infusion.

(xxvii) On 17 January 1993, she was readmitted to the Pain Clinic, where she remained until 13 February 1993, for a further attempt to control her pain. Unfortunately during this admission, on 4 February 1993, she fell down some stairs when her leg gave way. As a result of this fall she suffered a crack fracture of the tip of the lateral malleolus and an avulsion fracture of the tip of the medial malleolus, again in the left ankle.

(xxvii) The return to the use of crutches, as a consequence of this fall, was reported as having aggravated her posture and worsened her back pain. She was eventually discharged with advice as to weight reduction, and marital counselling, and on a variety of medications including Tegretol, Adolat, Tryptanol, Panadol and Pepcidine. She was reported as presenting initially as “a very angry middle aged woman whose daily functioning had suffered as a result of her chronic pain”, and as being discharged in a state of disappointment for the reason that, as the result of her further fall and ankle injury, she had not made the gains hoped for.

(xxix) On 22 March 1993, the plaster fitted to her lower left leg was removed. When reviewed on the next day at the Clinic it was noted that she had made little progress, and that her back pain had been aggravated by poor posture and an inability to do her exercises as a consequence of the leg plaster. She was noted to be displaying ‘signs of stress and depression’ which were ‘known amplifiers of pain’.

(xxx) As a result of the further fall, the plaintiff was referred to Dr. Sears for neurological testing without any abnormality being found. She was also reviewed by Dr. Wegman for gastric reflux and dyspepsia, in case they were a product of her medication.

(xxxi) On 13 October 1993, the plaintiff was readmitted to Royal North Shore Hospital with several muscle spasms in the low back which were relieved by intravenous Diazapam. Mexilthene treatment was also begun.

(xxxii) Dr. Jane Trinca, who treated her on this occasion, noted the presence of marked spinal muscle spasm, and of some sensory disturbances.

(xxxiv) Because of her complaints of pain in the right hip she was referred, at the time, to Dr. Ruff, for orthopaedic opinion. Xrays were normal.

(xxxiii) On 18 November 1993, panendoscopy was carried out which revealed minor gastritis to be present, along with a small hiatus hernia, and an area of superficial ulceration in the oesophagus. This was treated with Losec.

(xxxv) On 9 December 1993, the plaintiff reported problems of palpitation and dizziness with the mexilthene, and it was progressively replaced with increased doses of Epilim.

(xxxvi) On 3 January 1994, the plaintiff was readmitted to Royal North Shore Hospital because of further episodes of pain and giving way of her legs. An MRI of her brain and cervical region were carried out and found to be normal. Dr. Williamson, a consultant neurologist, examined her and reported that her signs and symptoms were not consistent with organic neurological disease.

65   By August/September 1994, at which time it appears to have to have been assumed that her claim for damages might be ready for trial, several of the treating doctors reviewed the plaintiff and crystallised their opinions in various reports that were tendered. 66   So it was that, on 1 September 1994, Dr. Slater provided a diagnosis of “chronic left ankle and foot pain (post traumatic) complicated by pain dysfunction syndrome”. He did not think the prognosis for improvement to be good, and thought that she would be likely to have “ongoing intermittent symptoms”. 67   Dr. Mahoney, in a report dated 2 September 1994, stated:

“Mrs Hanzic does appear to have developed symptoms referable to a cervical strain, a low lumbar back strain as well as a generalised strain of the right hip, although a degree of right hip pain could be referred from her back. She also has had symptoms referable to a generalised strain of the left ankle and has sustained a further injury which has involved an avulsion fracture of the tip of the medial malleolus and an undisplaced transverse fracture of the lateral malleolus.
She has developed arthritic changes in her left ankle which appear to be post traumatic, and I would consider in view of the history to be influenced by the initial incident in January 1986, and the subsequent incident in January 1993.
She will require further treatment and I would consider that the arthritic changes in the left ankle will accelerate and it is very likely that surgical treatment will ultimately be indicated.
As far as her neck, back and right hip is concerned, I would consider that the pain be associated with altered posture and she will require further treatment in the form of physiotherapy to these regions.”

68   Dr. Giblin, in a report also dated 2 September 1994, opined:

“This lady’s condition has now stabilised.
She has developed sympathetic reflex dystrophy affecting her left lower limb.
The pain in the back and the pain in the interscapular area, is an age related phenomenon which is being materially aggravated by her altered gait pattern.
It is my opinion that surgical intervention would not be beneficial on her spine or her leg or ankle.
It is my opinion that she remains permanently incapacitated for her pre injury job. As such, it is my opinion that she has fifteen per cent permanent impairment of her back, and 20 per cent permanent loss of efficient use of her right leg below the knee and 5 per cent permanent loss of efficient of her right leg at or above the knee.
Anxiety, apprehension, and depression, are supra imposed additive inorganic factors.”

69   Professor Cousins in a report dated 17 August 1994, provided the following summary of the plaintiff’s condition:

“It appears that Mrs. Hanzic initially suffered a sprained left ankle and subsequently developed postural abnormalities in the low back region which resulted in a recurrent ‘myofacial’ pain syndrome in the low back region which eventually extended into the scapular region. This condition has been associated with depression and substantial anxiety which appear to have contributed to her recurrent episodes of severe muscle spasm necessitating hospital admission. No organic basis has been found for her episodes of falling and dropping things. Care has been taken to modify her dosages of medication and if she has adhered to these regimens, this would not appear to be a cause of her tendency to suffer episodes of falling. Her prognosis must be somewhat clouded in view of the continuing episodes of admission to hospital and the tendency to episodes of falling. However, the natural history of myofacial pain syndromes is a tendency to recurrent episodes, while at the same time being responsive to reasonable conservative measures, as was demonstrated by her response to the Inpatient North Shore Pain Programme.”

70   The treatment of the plaintiff at the Pain Clinic, and her progress were amplified by the various further reports from Professor Cousins directed to Dr. Dallas, between February 1992 and July 1994, which were tendered by the second defendant. They do little more than show a continuing pattern of muscle spasm and pain that was treated with injections, stretching exercises, physiotherapy, the provision of a brace, and medication, which was from time to time changed because of concerns in relation to hyperacidity, gastroenterological and urological problems and possible liver damage. The regime of medication noted included i/v Diazepam, Baclofren, Tryptanol, Cisapride, Tegretol, Prothiaden, Endone, Rivotril, Mexitill, Epilin, Losec, Adalat, Natrilix, and Panadol. 71   These reports also revealed that the falls were investigated by repeat MRI examination and neurological study, without any abnormality being detected, raising for consideration the possibility of the medication being a factor. Other aspects under consideration related to anxiety and behavioural factors which led to a review by a psychiatrist, Dr. Malcolm Dent, which was not placed into evidence. 72   The final document in this line of correspondence was a letter of 14 July 1994, to Dr. Dallas, in which Professor Cousins advised that he did not have any other avenue to suggest, and that as a consequence he did not think it beneficial for the plaintiff to continue to visit the Clinic. In none of these letters, however, did Professor Cousins, a leading expert in the field of pain management, suggest that the plaintiff was manufacturing her symptoms, or that she was anything other than a genuine patient. 73   Dr. Morgan, in a report dated 16 September 1994, noted that using the Waddell Disability system, based on activities of daily living, the plaintiff ranked as 8/9. He confirmed the presence of restrictions of active and passive movements in the left ankle, as well as tenderness in the ligaments around the lateral and medial malleolus, and swelling above the line of the ankle joint. In the back, he confirmed that CT scans showed some bulging discs, facet joint hypertrophy, and osteoarthritis at L5/S1. The symptom of sharp pain going down the leg with the onset of weakness and falling he said was a fairly typical syndrome of the posterial root ganglion compression which he believed was present in this case. The aching pain down the front of the right thigh he said appeared to be referred from the bulging L3/L4 disc. 74   At the same time Dr. Wegman reported that the plaintiff’s symptoms of reflux oesophagitis and ulceration may have been accentuated with her increase in weight, together with the use of tryptanol. 75   In a report of 22 September 1994, Dr. Grady reviewed the progress of the plaintiff in the light of his own re-examination of her, and his reading of some of the reports from the North Shore Pain Centre. In this report he stated:

“I do not now think there is a great deal of evidence for a neurotic reaction, hysterical or other. Her motivation to co-operate with treatment which has been described in reports from North Shore Hospital and the Northside Pain Clinic and her readiness to acknowledge improvement are also against a psychoneurotic reaction.
The cheerfulness, albeit superficial, could be simply from her personality style and her decision to take a positive attitude to her condition.
She remains disabled for domestic duties and employment to a very large extent, but on the evidence available I don’t think this can be attributed mainly to her emotional condition, less to a psychiatric disorder.
As to prognosis for future mental health and well being, it seems likely she will go on as she is with the ups and downs in her physical condition and using the coping mechanisms which she has been using. I do not think there is any indication for direct psychiatric treatment.

Although tendered by the second defendant, I do not see how this report assists its case.

76   Following these assessments, the plaintiff came under the care of Dr. Sundaraj, to whom she was referred for chronic pain management by the Director of Accident and Emergency at Fairfield Public Hospital. He first saw her on 14 February 1995 in the orthopaedic ward, to which she had been admitted with severe low back pain radiating to both legs, and severe left ankle pain. 77   By this stage she was on a veritable cocktail of medication, comprising Tryptanol, Tofranil, Epilin, Endone, Valium and Panadeine Forte. She was using a Tens machine and was on intermittent pethidine/morphine injections for severe breakthrough pain. Despite all of this treatment, she was still complaining of continuing back pain and bilateral lower limb pain. Her weight at this stage had gone out from about 90 kgs to 130 kgs, and she was assessed as being in obvious pain and quite depressed. Dr. Sundaraj noted that “quite severe lumbar sacral muscular spasm was present”, that straight leg raising was no more than 20 degrees, and that swelling and tenderness was present around the left ankle and the whole of the left foot. It was his opinion that:

“Mrs. Hanzic sustained a work related injury resulting from a fall that occurred in January of 1986. She subsequently developed Complex Regional Pain Syndrome (Reflex Sympathetic Dystrophy) Stage 1. In view of continuation of painful symptoms in her left lower limb, she began developing severe low back pain. This would have resulted from abnormal posture, gait and difficulty with weight bearing. Reduced physical activity and consumption of large quantities of different types of medications, would have given rise to overweight problems. This once again compounding overall pathology. In her lower back, she was in fact suffering from a fibromyalgia syndrome (Myofascial). She has been developing periodic acute painful episodes within the muscular skeletal system.”

78   Treatment was initiated by him and progressed as follows:

(i) pethidine injections were continued, as was the prescription of Rivotril, Endone and Tryptanol. All other medications were withheld.

(ii) On 16 February 1995 a left lumbar sympathetic block and an epidural at L3/4 were carried out which led to some reduction of the painful symptoms for about 1 week.

(iii) On 12 April 1995 she was admitted to Fairfield Heights Private Hospital for a 5 level radiofrequency denervation of the L4/S1 facet joints - with no benefit.

(iv) On 14 July 1995 she was readmitted to Fairfield Heights Hospital for a trial of intrathecal Morphine, in the course of which all other analgesics were withdrawn. There was significant relief.

(v) On 1 August 1995, a Sychromed Morphine implant was inserted, leading to excellent pain relief. This procedure involved the implantation of a battery operated pump under the plaintiff’s skin, programmed by computer to deliver controlled amounts of morphine.

79   As a result of this success, the plaintiff was referred to the physiotherapist for a mobilising exercise program and for weight reduction. She was reported as responding extremely well, with a reduced pain level, and with a much brighter and more positive outlook. With her increased physical activity, the morphine dosage was increased, but she managed to go off most of the other medication other than the occasional Panadol or sleeping pill. 80   Her pain was significantly reduced but she continued to have exacerbations which, if not brought quickly under control, led to spasms and further hospitalisations. The development of these exacerbations, Dr. Sundaraj explained, was not to be unexpected, but they could be “quite easily controlled” by increasing the morphine dosing. 81   The subsequent progress, as recorded in Dr. Sundaraj’s report of 13 September 1999, has been in accordance with these predictions. In summary, it appears from the Plaintiff’s evidence or his report that:

(i) As of April 1996, there was very mild base line pain with which the plaintiff could cope, a resumption of more of her household activities, an improvement in her exercise profile, a loss of weight and improvement in her confidence and self esteem;

(ii) On 26 June 1996, after she complained of increased pain in the right lower back, Dr. Sundaraj carried out medial branch radio frequency denervation therapy to the left L4-S1 facet joints;

(iii) In April 1997 she developed an acute exacerbation of her low back pain, associated with difficulty walking and weight bearing. She was admitted to Fairfield Hospital and then transferred to Westside Private Hospital on 2 May where she remained as an inpatient for six days. During this period she was reviewed by the physiotherapists, commenced on an exercise programme, prescribed with a variety of medications including Amitriptyline, Mersyndol, Oxycodone, Parenteral Opioids, and Subcutaneous Ketamine.

(iv) Subsequently she increased her social and physical activities, resuming cycling, walking, knitting and sewing, and also taking on a part time sales representative job selling aroma therapy products on a party plan. She also enrolled in the Chronic Pain Support Association, and began a Bible study course.

(v) In April 1998, she again developed an acute exacerbation of low back pain which led to a readmission to Westside Private Hospital. Intensive conservative treatment was recommended with increased medication, physiotherapy, mobilising exercises and encouragement.

(vi) In April 1999 there was another recurrence and admission to hospital, in the course of which a local anaesthetic in combination with Clonidine was infused via an epidural catheter left in place for three days. Intensive physiotherapy was recommended.

82   The hospital admissions noted above are those referred to by Dr. Sundaraj in his reports. The plaintiff’s own records would suggest some additional admissions over this period but in the absence of specific mention in the reports, or in any supporting hospital admission files, I am unable to determine whether there were in fact further occasions on which she was admitted to hospital. The admissions noted do, however, show a continuing pattern of periods of relief and resumption of a degree of normal activity followed by periods of exacerbation leading to hospitalisations and follow up treatment. 83   In his final report of 13 September 1999,Dr. Sundaraj said:

“In summary, Phyllis Hansic’s primary pathology appears to be one of deep muscle spasm. This seems to involve the paraspinal muscle, the gluteus medius and to some extent the sacraltuberous and the sacrospinalis group of muscles. This is a localised ‘Myofascial syndrome’ which seems to be exacerbated periodically for no apparent reason. It is possible that she may be increasing her physical activity level thereby triggering the muscle spasm. The right lower limb pain extension could be arising from this site. She complains of periodic ‘giving way’ of the lower limb. This too would be of a soft tissue involvement. There is no abnormal neurological findings on clinical examination. Lower limb reflexes, sensory findings are intact. No obvious muscle wasting present.
She continues to maintain a stable weight of around 85-90kgs. Uses a walking stick occasionally as her confidence and/or support. There is no evidence of clinical depression, increased anxiety or any other ‘abnormal illness behaviour’. Self confidence and self esteem continues to be preserved.
Prognosis: It would appear that she will always continue to complain of some degree of baseline pain and disability in her low back and lower limbs. From her history thus far, presumably once a year, she seems to develop the acute exacerbation of low back muscle spasm and pain. She is requiring hospitalisation, since she is unable to manage at home. During this period, intensive physiotherapy, increased medications and psychological support seem to be required.
I have suggested ongoing counselling sessions for relaxation therapy. Phyllis Hanzic is reluctant with this, since she has had stress counselling on a number of occasions previously and she reports practicing relaxation and other stress management on her own using music tapes, reading and other techniques. There is an underlining component of psycho social issues which would be playing a role in her pain and disability presentation . In comparison to clinical condition and her general well being in the late 80s and early 90s she has made a significant progress and advancement. From that point of view, her prognosis though guarded seems optimistic.
She will be unable to return to her pre-injury duty as a supervisor in child care centre on a full time employment. However, she may be able to resume very light and selected duties for about 15-20 hours stretched over 3-4 days per week.
Her lifting capacity, to be limited to about 5kgs, on an average and occasionally able to lift to 10 kgs. To minimise unnecessary bending or extension of her lumbar spine.”

84   In relation to the cost of maintaining the morphine implant, Dr. Sundaraj said in his report of 27 March 1996:

“The morphine reservoir has a battery with a battery life between 5-8 years. At the end of this, she will require a replacement unit. The cost of the replacement unit would be similar to the original cost, i.e. around ($10-12,000) ten to twelve thousand dollars. Once again she will require about 5 days of hospital stay. In the meantime, she will require 3 monthly admission into hospital and as a day patient, requires refill of morphine reservoir. The cost of this is around ($500.00) five hundred dollars at each visit.

In his more recent report, he said:

“This implant has in built battery, which generally lasts for about 4-6 years. It is about this time that she will require a replacement unit. Instead of the computer controlled Synchromed implant, if and when the battery gets low, I will replace it with a gas driven Isomed system. This costs about $7500 - $8000, Additional costs will include 2 days stay in hospital, theatre fees, my professional fees, anaesthetic and radiology costs. The additional cost will be around $4000 - $5000. The gas driven Isomed does not require replacement, since there is no battery within the system. She will require 2 monthly morphine refill. This is due to the limit of the reservoir volume and as per the recommendation of the manufacturer. The cost of each refill and consultation will be identical to the Syncromed refill cost.”
Dr. Sundaraj said, in this report, that he expected the plaintiff to require periodic physiotherapy on an ongoing basis, requiring “about 20-30 consultations per year”. He also said that it was possible” that she would require hospitalisation for acute exacerbation management for “a few days each year”.

85   None of the treating doctors was required for cross examination. Their evidence stood unchallenged save so far as it was questioned by the medical practitioners qualified by the defendants, whose reports were tendered. Of those only Dr. Burke, a surgeon, who had examined the plaintiff on various occasions between December 1988 and November 1996, was required for cross examination. 86   In the series of reports tendered Dr. Burke stated that he saw no signs of sympathetic nerve dystrophy. The symptoms of which the plaintiff complained he thought to be of a bizarre pattern, and not capable of explanation in rational anatomical terms. He thought that he detected evidence of exaggeration of the signs that she displayed, on examination, suggesting, on one occasion, that she had “voluntarily” induced a bout of leg twitching. The original ankle injury he expected would have resolved completely within two to four months. 87   The wider and progressive symptoms Dr. Burke considered to be unrelated to the original fall. His view in this regard was expressed in a report of 20 November 1991 as follows:

“It would seem that her symptom complexes and her pessimistic view of recovery are being encouraged by enthusiastic attention from her various medical advisers. It is disappointing to note that her weight has further increased. There may well be degenerative changes in the lumbar area and there may be intermittent embarrassment of lumbo-sacral nerve roots. However, no muscle wasting or limp is involved, and the degree of abnormality is obviously fairly slight. I would not agree with their diagnosis of sympathetic dystrophy in the left ankle region. There are no signs to support such a diagnosis, nor were there when I examined this woman in 1988.
It appears that there is a significant emotional element involved.

88   When he reviewed the plaintiff in July 1993 following the fall at the Pain Clinic, he found some “possible slight tenderness and restrictive movement” in the left ankle, but the signs elicited upon examination he considered to be “deliberately exaggerated”. Again he observed that “non organic factors continue to overshadow her medical condition”, a view repeated in his report of 29 November 1995. 89   On 19 March 1996 he confirmed that his previous findings and opinion remained unchanged, observing:

“There is no residuum of any work injury. No sequel of such need be expected. The incident in 1986 does not adversely affect her current fitness for work. Her fitness for work is diminished by her obesity and general lack of fitness. She is probably unfit for work because of the therapeutic agents that have been prescribed.”

90   In his final report of 29 November 1996 Dr. Burke opined:

“This woman apparently has mild old Scheuermann’s disease of the thoraco-lumbar region. There is associated scoliosis. There are minimal degenerative changes. There is particular degenerative change at the L4/5 disc where there has been some loss of disc height. However, there is no radiological evidence of thecal or nerve root embarrassment. There is osteoarthritis of the weight-bearing joints, and particularly at the right hip. There is osteoarthritis of the left ankle, and there was a fracture of the left lateral malleolus in February 1993.
These studies did not show comparison view of the left hip and of the right ankle.
She has complained of knee symptoms, but no x-rays of the knees have been presented. Ideally, x-rays of the hips, knees and ankles should be taken for comparison purposes. It is possible that the osteoarthritic change at the left ankle has been caused or aggravated by trauma. It would appear that the other spinal and joint changes are present on a degenerative change, undoubtedly abetted by gross obesity.
It appears that her current lower limb symptoms are not easily explained on rational physiological terms. Perhaps assessment by a neurologist would be helpful.
Her inability to stand on one foot today was inconsistent with the manner in which she was able to walk today.”

91   While he did not agree with the diagnosis that had been reached by the treating doctors of sympathetic dystrophy in the left ankle region, or find any organic cause of continuing relevance for the plaintiff’s symptoms, he did not suggest that the treatment provided by the Pain Management Centre or its rehabilitation regime had been inappropriate. 92   He appeared to discount entirely the opinion offered by almost all of the treating medical practitioners, that the extended use of crutches could have brought about postural changes and been the occasion for placing extra strain on her right hip and back. He also appeared reluctant to accept that the arthritic changes evident on X-ray of the left ankle, taken six days after the 1993 fall, were an aftermath of the 1986 accident, although he conceded the possibility of it having been the cause or an aggravating cause of that condition. 93   He also conceded that it was possible for a fall to stir up a degenerative but symptomless back condition of the kind that was indicated by a L4-5 disk bulge, although he said that he would have expected those symptoms to emerge within a couple of weeks of the fall. Otherwise he appeared to have placed a good deal of emphasis on his conclusion that the plaintiff, at the times when he saw her, had a problem of obesity which may have explained her gait and restricted movements. In this regard he did concede that where an overweight person falls, that factor of obesity was likely to cause an increased injury or to compound its seriousness. 94   He seems to have seen little of significance in the progress made by the plaintiff under Dr. Sundaraj, and in particular her weight loss and increased mobility. 95   In the result, it seems to me that Dr. Burke’s opinions attract very much less weight than those of the treating physicians and surgeons who have uniformly accepted the genuineness of the plaintiff’s complaints, and who have attributed the symptom complex including the Myofascial syndrome diagnosed by Dr. Sundaraj, to the original ankle sprain, the changes in posture, and uneven loading of the hips and back that followed upon that injury, the later ankle fracture, and the effects these all had in aggravating degenerative changes in the hip and back. Those experts have had the advantage of working closely with the plaintiff, and of observing the extent to which she had made an effort during intensive treatment regimes, of seeing her when in episodes of acute pain, and of seeing her response when treated for those episodes. 96   The remaining reports tendered by the defendants add little to the case. Dr. McInerney’s report became irrelevant because no claim was pursued attributing the plaintiff’s miscarriage, which occurred a few days after the accident, to that event. Dr. Barr, who saw the plaintiff in September 1994, and assumed the correctness of the history provided concerning the symptoms of gastro-oesophageal reflux, epigastric discomfort, and of constipation, reported:

“She already demonstrated a predisposition to reflux before her accident. I think it is likely that her weight-gain has been a provoking factor for the recent reactivation of her reflux. I would not think that the brief period on anti-inflammatories was a factor. She is taking Tryptanol in high doses at night and the anti-cholinergic side-effect of this can aggravate reflux, however. Her codeine-containing analgesics are almost certainly the reason for the development of constipation.
From the GIT standpoint, I can see no limitation to her work capacity. I don’t believe that any further treatment is necessary. Her gastrointestinal conditions are not severe, and with regard to them, her prognosis would seem to be very good.”


The case for the plaintiff does not offer any different conclusion, and this report only tends to confirm the likely linkage of the weight gain consequent upon medication, and the use of Tryptanol, to the relatively mild gastroenterological problems that have emerged.

97   Dr. Boyd-Leigh, who saw the plaintiff on 1 May 1986, 28 August 1986 and again on 3 December 1987, reported on the first occasion that the ankle injury involved quite a severe strain which had left her with some deformity which was still present. He expected that she would make a complete recovery within three months, provided that she continued with the exercises that had been prescribed to overcome the flexion deformity that had developed. 98   His clinical findings were largely the same at the time of the second examination. He still expected that with suitable active exercise, and staying away from passive manipulation of the kind that had been used, (by Dr. Giblin) she would make a good recovery. The duration of the incapacity he said “must be uncertain”. His final report was more dismissive of the plaintiff in so far as he reported:

“Actual tests, in my opinion, are all normal and the responses are all contrived. I believe that there is still nothing wrong with this lady. She shows no sign of wasting, no neurological defect as far as I can assess and she refuses in many ways to co-operate with examination.”

99   The value of these reports of Dr. Boyd-Leigh is diminished by the circumstance that they were not updated, and they preceded the aggravation of which the plaintiff complained as time passed, particularly after the 1993 ankle fracture. 100   Dr. Rob McMurdo, a psychiatrist, saw the plaintiff on 29 September 1988, 6 October 1993 and 15 January 1996. At the first consultation Dr. McMurdo reported:

“It certainly is difficult to understand why a soft tissue injury should cause such prolonged and severe disability and one would wonder whether her complaints are consistent with the physical pathology. Only observation over a very long period would help to elaborate whether she is magnifying her complaints. It is possible that she has developed a sick role pattern of behaviour. It is understandable that someone who has been very active, and who has had many difficulties in their life with responsibilities and worries about the children, but then who has an injury during the course of her employment that they should become distressed because of the pain and interference with the quality of life. However, I do not think that Mrs. Hanzic has a formal psychiatric illness as defined in the Diagnostic and Statistical Manual of Mental Disorders. If it can be shown that there is no physical pathology in the ankle, or the hip, then it is possible that she has the somatoform pain disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition Revised). However, it is generally found that this condition does not respond favourably to formal medical treatment but rather to rehabilitation. It is also difficult to differentiate how much of the condition is magnified by conscious processes.
On her presentation today, the probability of her re-entering the workforce in the near future seems very remote. It seems advisable that litigation be finalised as soon as possible. Whether or not she has any significant organic pathology, she firmly believes that she has major damage in her foot and hip, and from the comments she made to me, this could be partly iatrogenic in origin from the statements which have been made to her by treating doctors.”

101   At the time of the second examination, Dr. McMurdo reported that the plaintiff “was not exaggerating, nor dramatising her problems and admitted to improvements where this had occurred … she was not overtly depressed nor anxious.” His opinion was as follows:

“From my further examination of the claimant she does appear to have adapted quite well emotionally to her physical problems. The ongoing pain and disturbance of sensation are certainly a problem to her but the ongoing management of the pain clinic and her change of philosophy towards her difficulty do seem to have helped her to a considerable degree. She is more bodily aware but not truly hypochondriacal. She lives a day to day existence and although there is a marked interference with the quality of her life, she does not have a specific psychiatric disorder as defined in the SSM-III-R classification of mental disorders. From the purely psychological point of view she would be fit for employment but the physical conditions prevent this and I will leave other specialists to comment thereon. The prognosis rests with her physical state rather than her psychological condition at this point in time”.

102   By the time of the final examination, which occurred after the morphine pump implant, Dr. McMurdo noted:

“During the course of the interview the applicant was quite relaxed, composed, and overtly quite positive with no evidence of anxiety or depression.”

His opinion was as follows:

“From my further examination of the plaintiff I can find no evidence of any psychiatric disorder. There is no doubt that she has suffered a considerable interference with the quality of her life and there is not likely to be any remarkable improvement in the future. She certainly is better for having much less medication. Prior to the insertion of the morphine pump she was needing fairly high does of analgesics, sedatives and antidepressants. These are no longer necessary except in emergencies so that she is much more alert, has better memory, and is more agile, within the restrictions placed on her by her back. She has lost some weight which is beneficial for her and this is probably due to the combined effects of ceasing the antidepressants which frequently cause weight gain, and being more active physically.
Although the question of work is really academic given her physical disability, from the purely psychological point of view she could cope with employment if any were possible for her. The prognosis rests with the orthopaedic surgeons and she is not in need of any psychiatric treatment.”

103   These reports tend, if anything, to assist the plaintiff’s case, so far as Dr. McMurdo does not suggest her to have been malingering. Otherwise they raise the possibility that the progression of the symptoms can be attributed to iatrogenic factors or to the development of somatoform pain disorder, neither of which involves any voluntary choice or intervention on the patient’s part.

Resolution of the medical issues

104   In my view far greater weight should be placed upon the opinions of the treating medical practitioners and upon the explanations they have offered, for the progressive deterioration in the plaintiff’s condition prior to the implantation of the morphine pump. The immediate relative success of this procedure tends to suggest that there has been a genuine and continuing organic cause for at least a portion of the plaintiff’s symptoms, as well as a degree of positive motivation on her part since that time. 105   So far as the defence sought to rely upon video surveillance of the plaintiff over a couple of days in May 1992, I am quite unimpressed by the suggestion that it showed her to be coping with physical activity or to be free in her movements. For the most part it shows her walking about slowly with a distinct limp, and bending occasionally in an unremarkable and unhurried way. True it is that she can be seen to have been standing for extended periods while watching a netball game, but she can also be seen to be moving about and leaning forwards from the hips from time to time, in a manner that was consistent with the techniques which she explained she had adopted for the purpose of maintaining some degree of physical mobility. At no point can she be seen to move quickly or to engage in some form of activity that required any degree of exertion. 106   Upon my assessment of the whole of the evidence, after a close examination of that given by the plaintiff, by her daughter Michelle, by Ms Woolcock, and by the medical experts, I accept that the plaintiff has suffered from the symptoms of which she complained, and from the progression in those symptoms that she described. I do not consider her to have been malingering or to have voluntarily behaved in such a way as to feign signs or symptoms for the examining doctors. The evidence of continuing falls, of apparent continuing distress and pain, and the presence of objective signs of muscular spasm would be difficult to manufacture. Moreover, it is extremely unlikely that anyone who had been as active as the plaintiff had been before the first fall, and who was bringing up six children, would undergo the rigorous, extensive and uncomfortable series of hospital admissions, rehabilitation programmes, medication and the like for monetary gain alone, or without genuine cause. 107   The symptoms and progression described by the plaintiff of pain and swelling in the ankle after the initial injury which was treated with strapping, a leg plaster, analgesia, acupuncture, physiotherapy and the use of crutches for an extensive period, followed by the onset of pain in the right hip and back extending down the legs, and of falls commencing in early 1991 and associated with spasm, is consistent with an aetiology involving uneven loading and stressing of the back and hip following an alteration in posture and gait associated with the use of walking aids or crutches, as described by the treating doctors. So is the history that the plaintiff gave in evidence, of a deterioration in these symptoms as she tried to push through the problems with extra activity, as encouraged by the Pain Clinic, and of further complications after the ankle fracture. The fall occasioning that fracture can, in my view, be causally related to the original fall, in that it was the sequelae of the original injury which caused her leg to give way from time to time, as I find occurred on this occasion. There is no suggestion, let alone any evidence, of the fall down the Pain Clinic stairs as occurring otherwise than as the plaintiff described. 108   I am satisfied that this further injury tended only to aggravate the ankle disability, to compound the arthritic changes that I am satisfied, on a balance of probabilities, are attributable to the original ligamentous strain, and to occasion a further period of uneven loading of the back and hips when the plaintiff returned to the use of crutches. These problems I am satisfied were also compounded by the weight gain which, upon the basis of the medical evidence summarised above, should properly be attributed to the reduction in physical activities enforced on the plaintiff, and to the multiple medications prescribed. The weight gain, and the further falls, were each contributing factors, I am satisfied, in conjunction with the uneven loading, to a process which rendered symptomatic the previously asymptomatic degenerative changes that were emerging in the plaintiff’s back and hips. 109   So far as the plaintiff has experienced gastric symptoms, they can also be properly considered to be causally connected with the original injury, in so far as there is evidence that medication of the kind taken by the plaintiff and weight gain are known to bring them on. 110   The position in summary is a complex one of compounding causes all attributable, I am satisfied, to the original ankle injury and to the regime for treatment which followed. 111   By reference to these matters, I find the plaintiff has had and continues to have, significant disabilities related to her ankle, hip and back which are causally related to the fall on the stairs of 9 January 1986, and which to a significant degree have the organic basis described. I am also satisfied that, to a degree, these symptoms are iatrogenic in nature and that there is an emotional component attributable to the quite exceptional medical and pharmacological intervention that has taken place, the sick role associated with that intervention, the resulting anxiety, anger and distress engendered by the very intensity of that treatment, the inevitable preoccupation with it, and the apparent failure to achieve a beneficial result. I would expect there to be some, although not complete, resolution once these proceedings are finalised, particularly in view of the more positive outcome offered by the procedures undertaken by Dr. Sundaraj. I note that there is some support for the presence of an emotional or iatrogenic component in the reports of Dr. Mahoney, Giblin and Sundaraj, and to a lesser extent in the reports of Doctors Burke and McMurdo, and also in the report of Professor Cousins of 23 March 1993.

Heads of Damages

112   There was agreement for arithmetic purposes, in respect of the components going to make up the heads of damages claimed, although not as to the plaintiff’s entitlement to their recovery. 113   It was the plaintiff’s case, in broad terms, that she has been substantially disabled since the accident, and that such position will continue for the remainder of her life. Upon that basis, she claimed virtual destruction of her earning capacity subject only to an ability to work in a limited part time capacity, upon her own terms, in the party plan venture in which she has been involved in recent times, or in some similar activity. In addition, she claimed significant damages for domestic services, past and ongoing medical and hospital treatment, and general damages. 114   It was the case for the defendants, however, that she has been nowhere near as disabled as she claims, or alternatively, that her disabilities are unrelated to the accident. Upon that basis, it was their submission that she was entitled to recover damages for economic and related financial losses for a relatively brief closed period, and to limited general damages. In the event of this submission not receiving favour, it was put, in the alternative, that her claims for domestic services, and for continuing losses, should be confined to very modest amounts.

Past Out of Pocket Expenses

115   The amount which was agreed to be recoverable, as particularised in Ex F, was $4,592.2 (item (a)). This includes various sums expended in the immediate aftermath of the January 1986 fall, ie for the treatment of the ankle sprain. 116   Agreement was reached as to the components of two other categories of expenditure for which accounts were sighted, again as particularised in Exhibit F. 117   The first category (item (b)) related to the investigation and treatment concerning the progression of symptoms from about 1990, at or through the North Shore Pain Centre, or subsequently under the care of Dr.Sundaraj, in the sum of $118,294.15. These amounts the defendants accepted as recoverable only if the progression of symptoms was found to be causally related to the fall and original injury. 118   The second category (item (c)) related to expenses submitted to be unrelated to the original injury, or to the progression of symptoms, but referable to other causes, including cardiovascular investigation, and the provision of items such as a travel cushion, a flotation/electric lift-up chair, a back brace, orthopaedic shoes and surgical stockings, in the sum of $4,108.50. 119   Having regard to my finding that the progression of the plaintiff’s symptoms was causally related to the original accident and fall, having been brought on by the uneven loading and stress occasioned to the plaintiff’s back and hips by the prolonged use of walking aids, rendering symptomatic degenerative changes in the back; by the explosion in the plaintiff’s weight from 90kgs to 130kgs. (20 stone) due to the medication which was prescribed, and to the enforced inactivity that resulted from the original fall; by the onset of back/hip pain; and by the further falls with their sequelae attributable to the resulting deterioration in the plaintiff’s condition, I am satisfied that the amounts contained in the further two categories are recoverable, with the exception of the sum of $540 for cardiovascular services. 120   The plaintiff gave evidence of receiving relief by the use of the back brace, orthopaedic shoes, surgical stockings, lambswool blanket, ankle brace and lift up chair. She said that these items facilitated her in remaining mobile and in driving a car, and were of value in limiting the occasions of flare up. While the need for the lift-up chair was not all that clear, in the absence of evidence from the defendants challenging its utility, I am left only with the plaintiff’s evidence that it was beneficial and was recommended by the Pain Clinic. I accept that evidence. I am not, however, persuaded, in the absence of any evidence as to why they were needed, that the cardiovascular diagnostic services were related to the accident. I disallow this item. In the result, the damages under this head I assess as follows:

Item (a) $4,592.20
(b) $118,294.15
(c) $ 4,108.50 $126,994.85
- 540,000 (disallowed)
$126,454.85

Future out of pocket expenses

121   These claims were related to the replacement of the morphine implant pump either in its present form (every 6.5 years), or by the new type of gas driven Isomed system mentioned by Dr. Sundaraj (once only), in each case for a present cost of $15,000 (a sum which is somewhat higher than the range of $11,500 to $13,000 specified by Dr. Sundaraj in his report of 13 September 1999); Pump refills (every 8 weeks) at a current agreed cost of $731 each refill; visits to Dr. Sundaraj eight times a year at an agreed cost of $10.77 per week; physiotherapy, acupuncture, and hydro therapy at a current weekly cost of $133 per week; and recurring hospitalisations at a cost of $4,600 per annum (or $88.46 per week). 122   So far as the pump was concerned, the calculation for replacement of the existing unit, allowing for deferral, upon an annual present cost of $15,000, was agreed between the parties as follows:

First replacement at age 50 $14,576

Second replacement at age 56.5 $11,844

Third replacement at age 63 $9,638

Fourth replacement at 70.5 $8,307

Fifth replacement at 77 $ 6,365
$50,730

123   This cost could be reduced, upon this basis, to $14,576 if, at the first replacement, the newly available Isomed unit was used. I see no reason why this alternative should not be the preferred choice. Upon the basis, as I find it to be the case, that the plaintiff will need to continue with a morphine pump implant for some time into the future, although not necessarily for the remainder of her agreed anticipated life expectancy of 35.82 years, I am satisfied that damages should be provided for a single replacement. Although the starting point of $15,000 before deferral is somewhat higher than the sum of $13,000, which was the upper amount nominated by Dr. Sundaraj, I see no reason to make allowance other than for the agreed sum. 124   An agreed multiplier of 1137.9 was adopted, allowing for deferral, for the recurrence of the other relevant expenses over the remaining anticipated life expectancy of the plaintiff. Where life tables are used for the purposes of calculations such as those required under the present head, there is a built-in discount for contingencies, and no further allowance is required for the ordinary vicissitudes of life. However, in the present case, I am of the view that once this case is behind the plaintiff, some of the emotional and iatrogenic effects, which I find to be involved, are likely to retreat, with a corresponding opportunity for some further resolution of her condition. 125   There can be no certainty in that regard, and the prospects of improvement which I find to be realistic, are best allowed for in my view by a discount of 15%. The discount contended for by the Second Defendant on this account, I note was in the order of 50%, a percentage which I regard as both unreasonable and unrealistic. 126   Otherwise, it does appear that eight weekly refills and reviews by Dr. Sundaraj would be appropriate, and that, in accordance with past experience and Dr. Sundaraj’s report of September 1999, hospital admissions are likely to be required for several days each year, for occasions of “acute exacerbation management”, as described by Dr. Sundaraj, for the immediately foreseeable future, but not necessarily for the remainder of the Plaintiff’s life. 127   The sum of $4,600 per annum suggested by the plaintiff seems to reflect considerably more than the “hospitalisation for ‘acute exacerbation management’ for a few days each year” mentioned by Dr. Sundaraj. The precise basis for the calculation of the sum of $4,600 was not shown, but it apparently reflected an averaging of the hospital costs incurred over recent years. 128   The plaintiff bears the onus of proving the quantification of this component. However, since it appears from the submissions that the sum has been agreed, there is no reason why I should depart from it. For the reasons earlier mentioned, I propose similarly to apply a discount of 15% for the contingency of some further resolution of the plaintiff’s condition, and for consequent lessening in the frequency of the hospital admissions . 129   The requirement for physiotherapy, acupuncture and hydro therapy has not been shown to my satisfaction, to be anywhere near the sum of $133 per week claimed. The evidence does not supply any such claim. The plaintiff gave no evidence of currently being on a weekly regime of hydrotherapy or of regular acupuncture or physiotherapy, and the schedule of expenses does not support a current annual claim in any way approximating the sum of $6,916 which was initially pressed upon me, in respect of this component. The plaintiff’s acupuncturist died some years ago and no evidence was given of any other practitioner in this field having been consulted by her. The claim for hydrotherapy, it was conceded, should be compressed into the physiotherapy claim. 130   Dr. Sundaraj in his September 1999 report, estimated the need for periodic consultation of a physiotherapist to be of the order of twenty to thirty consultations per year , ie approximately one such treatment each fortnight. I accept that at times of acute exacerbation, some more intensive treatment, involving several courses of physiotherapy, may be required and that during times of quiescence there may be no need for it. Absent more specific evidence on this aspect of the claim, I propose to allow an amount for all forms of physiotherapy necessary to meet the reasonable needs of the plaintiff, calculated at the rate of $40 per week. I will apply the chosen multiplier, and the same discount of 15% for contingencies referable to the possibility that the need for such treatment will abate over time. 131   Upon this basis, I assess the future loss in accordance with the agreed figures as follows:

Replacement pump at age 50

Cost deferred $14,576
Future visits to Dr. Sundaraj
$10.77 pw x 1137 .9 x .85 $10,417

Pump refills
$91.38 pw x 1137.9 x .85 $88,384
Physiotherapy
$40 pw x 1137.9 x .85 $38,689
Recurring Hospitalisation
$88.46p.w. x $1137.9 x .85 $85,560
$237,626

132   In case there be any doubt about it, I specify that the above findings are based upon my conclusion that the plaintiff’s current disabilities are genuine and are causally related to the 1986 fall and injury. The assessment has, however, been significantly reduced from that. I am of the view that with the resolution of these proceedings, and with the lifting of some of the emotional and iatrogenic components, there is a realistic prospect of the plaintiff experiencing some improvement in her condition in the future, or at least of not having to resort to the extraordinarily heavy reliance upon medical assistance that has characterised the past.

Past diminution of Economic Capacity

133   For arithmetic purposes, and subject to certain critical assumptions, the past economic loss was agreed in a net sum of $172,839.21. This calculation assumed that:

(i) the plaintiff would have continued in the casual part time work in the pharmacy, where she was working at the time of the fall, or in an equivalent position;

(ii) she would have been remunerated in accordance with the award rates ($151 per week net at the time of the accident, rising to $362.40 per week net at the present time);

(iii) she would have worked in the job twenty hours per week from the time the January 1996 vacation care programme ceased until 5 February 1988; 25 hours per week between that date and 22 September 1988; 30 hours per week from that date until 22 March 1989, 35 hours per week from that date until 3 August 1990; and thereafter full time.

(iv) From 2 September 1997 until the present time, she has been earning $70 per week net in her party plan position.

134   This claim was pursued upon the basis that the plaintiff would have increased her hours of work to take on two and possibly three extra evening shifts, (the evidence being not entirely clear as to the number) in accordance with an offer which had been extended to her before the fall, and that she would have progressively extended these hours, as the children became older, rising to a full 40 hours per week after the youngest child, Edouard, became old enouogh to go to school in 1990. 135   While there is no distinction in principle in assessing damages for past and future diminution in earning capacity, it is convenient and possible to deal with this head separately, and to examine it against known past facts, with a little more certainty than is available where the assessment is for a future loss. 136   It was the submission of the First Defendant that the plaintiff should be regarded as having made a full recovery from the initial fall within twelve months or so, and that any ongoing diminution in her earning capacity was related to other factors. It accordingly submitted that this head of damage should be confined to a closed period of one year or thereabouts, at a rate of $195.09 net per week, (a sum averaged out upon a basis of eight weeks for the remainder of the Vacation Care Program at the rate of $248.10 per week net, and of 48 weeks employment with the pharmacy at a rate of $170 per week net) i.e. in the sum of $9,949.59. 137   The second defendant submitted that in the absence of evidence as to the manner in which the plaintiff would or could have restructured her household to accommodate full time work, and in the absence of evidence from the manager of the pharmacy to corroborate the availability of increased hours and eventually of full time work, the wider claims could not be substantiated. It also submitted that the plaintiff should have been able to work through much of the period since the accident, and that she had not made any reasonable attempt to mitigate her loss by seeking vocational advice or retraining for alternative avenues of employment. Taking into account the circumstance that she has now recently been engaged in an economic endeavour, selling aromatherapy products via a party plan, the submission of this defendant was that, subject to proof of causation and mitigation arguments, the plaintiff’s loss since the accident (720 weeks) had not exceeded upon average $100 per week net, sounding in a maximum recoverable sum in the order of $72,000. 138   The plaintiff gave evidence to the effect that, apart from working four hourly shifts (extending occasionally to six hours) in the pharmacy on Tuesday and Friday evenings, and on Saturdays and Sundays during the day, averaging about 20 hours per week (a figure slightly in excess of the 15 hours noted in Exhibit 8), she had been involved in the Vacational Care Program since May 1984. She had an arrangement to take on extra evening shifts on Mondays and Wednesdays as the girl doing those shifts was leaving the pharmacy. She had not returned to any of this work in the pharmacy or in the Vacational Care Program after the accident, because her injury and the progression of symptoms rendered her incapable of doing so. 139   The evidence she gave concerning her past and future capacity to work is encapsulated in the following passages:

“Q. What about your capacity to work? Since the fall at school in January 1986 up until now do you feel that you have had any capacity to work? A. No I haven’t been able to have the capacity to work.
Q. If you had not been injured, what was your intention as to work? A. My intention was I was really enjoying the work at the pharmacy, because I worked in a pharmacy when I first left school, so I enjoyed pharmacy work greatly. And it was - the job was really great because I worked in the evenings on weekends, which meant my husband was with the children and I wasn’t having to leave them. I was picking up extra hours, and the following year I was looking at going into full time work because my son would have been in preschool.
Q. Would you have continued through - A. Yes.
Q. --- up to the present time and into the future? A. yes, I would have. I like being busy.
Q. How old are you now? A. 48.
Q. Up until the present time, you haven’t been able to do that? A. I haven’t been able to do that.
Q. Or do any work? A. No.
Q. What about the future? How do you se the future? A. I’ve got - as to going out and working for a job, I can’t see that happening.
Q. Why not? A. Because I am very unreliable because I don’t know from one day to the next what I’m going to be able to cope with.
Q. Do you think you couldn’t hold down a 9 to 5 job? No, no way.
Q. Do you think you could get any work, cope with any work, on a regular basis? A. I don’t think so.
Q. Is that for the reason that you just gave? A. yeah.
Q. I mean that you don’t know - A. The pain that’s with me all the time, I don’t like actually to have - I wouldn’t like to do something with responsibility because sometimes the pain clouds my mind even still, but not to the extent that it used to before. And even if I do an activity one day or the next day, I have to have a rest day, so I can’t do something that’s repetitious, day after day.”

140   Her evidence in relation to the party plan was as follows:

“Q. Can you tell us a bit about what you have done to that end? A. Okay. Just on two years ago when I started feeling a lot better, and getting my life back in order, I started selling aromatherapy products, a diversional therapy. I was using the products myself.
Q. Tell us about that? A. That is through a company called Lereve. It is a party plan thing where I go to a person’s house once, maybe twice, a week, demonstrate, tell them how to use the aromatherapy oils etc and it might be two to three hours once a week or twice a week. They order the products. I order them from the company. Then a couple of the children also help with that as well. And sometimes if I’m not well enough to go and do it myself, one of my daughters will also go and do it.
Q. Who pays you? A. It is commission. I buy the products at a lesser price to what I sell them.
Q. And how long have you been doing this? A. I started - it will be two years in December.
Q. And how did you find that, what effect? A. I find that it is really a diversional therapy because it gets me thinking about something else. I’ve enjoyed learning about the products, the oils and how to use them in relationship to my own pain and my own health and reading a lot in that, so I have enjoyed doing that part of it. Even on bad days I’ll get someone to drive me there and it will keep my mind off it, and if I’m having a bad day, there has been a couple of times where I have actually been at the stage of using a walker, and when I’ve got to the person’s place I’ve got the lady to hide that in the bedroom so the people don’t know that I’ve got it. I’m away from the house and it helps keep my mind keep off the pain.
Q. About how much would you say that you have earned over the last two years? A. When I worked it out, it worked out, because I don’t do it every week and each time it is a different amount, but over the twelve months I earned about $70 a week.
Q. That you have collected from it? A. Yes.
Q. Do you propose to keep going at that? A. Yes.”

141   Accepting, as I do, the plaintiff’s history of her symptoms and their progression, and in the light of the quite exceptional medical regime into which she has been received, I find that she has been prevented from working during the period to date, subject only to the more recent capacity to work, at her own pace, and under her own direction, in the party plan enterprise. In this regard I accept that she would have found any job involving prolonged standing and physical activity of any magnitude or continuity out of the question. More significantly, however, I find that she needed all her energy to push through the programs of rehabilitation activity recommended to her by the treating doctors, and that it would have been necessary for her to take regular breaks from any work position for rest and for in-patient treatment. In those circumstances she simply could not have held down any full time or part time permanent position. 142   That disposes of most of the defendants’ arguments. There remains, however, the question whether she could and would have taken up the longer hours assumed, or whether she would have exercised to the full her undoubted economic capacity, absent the accident, over the entire period to date. 143   This question needs to be considered in the light of the evidence concerning her family. She was married to a man engaged in the accounting profession, and she had six children, all of whom lived at home until Bianca left in 1994, at the age of 20 years. At the time of the January 1986 fall the eldest child was 11 years old and the youngest was three years old. Apart from the usual domestic duties, and part time pharmacy and vacation care work, the plaintiff was a Brownie leader and was involved in taking the children to dancing and singing lessons and sporting activities, helping with their school work, and engaging in some recreational interests of her own, including those within her Church. By reason of the “old fashioned view” which the plaintiff agreed her husband had in relation to “women’s work”, which she attributed to his cultural background, the running of the domestic household was largely her responsibility. It had also been her intention to have additional children beyond the six who had already been born. Her earnings, she acknowledged, were used for “extras” and were not essential for the family support. 144   In all these circumstances, taking into account her husband’s attitude, and the heavy demands made upon a mother in a family including six children, all born within a period of nine years, I am not persuaded that the plaintiff would necessarily have taken on all of the extra hours with the pharmacy posited, or had she done so that such an increase would have occurred as early as the calculation assumes. 145   In coming to this conclusion I do take into account that the plaintiff was obviously an extremely active and enthusiastic person and that she liked the work in the pharmacy. It is more likely, I believe, that she would have taken on some extra shifts, increasing her hours to something in the order of twenty-five hours per week, and that from time to time she would have taken on further work relieving other employees on a temporary basis, even up to the full hours suggested, on occasions. 146   Subject to the usual contingencies of life, it may have been the case that in more recent years, e.g. from 1994 (when the oldest child was twenty years and the youngest child was eleven years) the plaintiff would have taken on full time employment. It might also have been the case that after a lengthy period of employment, e.g. ten years or so by 1993, she would have gone out of the work force for a time, so as to indulge in other interests. Much would have depended on family demands, and competing interests. 147   For these reasons, there is in my view a need to make some adjustment to the loss calculated by the plaintiff. This is not an easy task, nor one that permits of a precise calculation. Doing the best I can to ensure that the plaintiff receives damages reasonably commensurate to her loss, I consider it appropriate to discount the full claim as calculated by her by a factor of 25%. The loss so calculated is $172,839 x 0.75 = $129,629. 148   For greater certainty, I confirm that I have rejected the defendants’ submission that the plaintiff had an exercisable capacity to work over the full period, and that she failed to mitigate her loss by not seeking alternative employment or retraining. She participated fully, and cooperatively, upon the face of the medical evidence tendered, in the various rehabilitation and treatment programmes, yet her problems remained. Absent an ability to report for work daily, without breaks for rest and treatment, and with the cocktail of medication and aids that have been provided for her, it is unrealistic to expect that she could have obtained employment in any other position, or to have engaged in any form of activity other than one of the kind available through the party plan.

Fox v Wood

149   This was agreed at $3,653.

Past Superannuation

150   An agreed calculation was made, working on the assumed wage figures in full time employment since 1 July 1993, at the statutory rates, less 20% for tax, in the sum of $4,512.00. No specific submission was directed, in respect of this head of loss, but it may be assumed that the same arguments apply as to causation, mitigation and the like. Subject to some adjustment to take into account my concerns as to the improbability of the plaintiff having worked to the level assumed in her calculation, I consider it reasonable to make allowance for this claim in a sum I round off at $3,400.

Future Economic Loss

151   The plaintiff claimed damages for impairment of her future earning capacity for seventeen years to age sixty-five, subject to a discount of 15% for vicissitudes. The calculation which the plaintiff advanced was based upon an assumed continuing loss of capacity to earn sounding in a sum of $290 per week net, to which was applied a multiplier of 697.3, and a discount of 15% for contingencies, sounding in a sum of $171,884.45. The base figure of $290 took into account an allowance of $70 per week for the Party Plan activities. Although there was some confusion in the plaintiff’s submission as to the net weekly award figure, it appears to have been ultimately agreed at $362.40. I accept it as the base line upon which the plaintiff seeks damages for this head of loss. From it must be deducted an amount representing the residual working capacity of the plaintiff, through the Party Plan of $70 per week. 152   The defendants did not accept any entitlement to recovery on this account. In the alternative, the second defendant submitted, subject to causation and the other issues as to the genuineness of the plaintiff’s injuries being resolved adversely to it, that the plaintiff retained a capacity to perform light work for at least fifteen to twenty hours per week, spread over three to four days, sounding upon its submission in a loss calculated as not exceeding $50 per week x 697.3 x .85 = $29,635. 153   Some support for that proposition was derived from the most recent report of Dr. Sundaraj, although the fifteen to twenty hours he had in mind was qualified in so far as it was expressed in terms of a “possibility”; in so far as it was directed to “very light and selected duties … stretched over 3 - 4 days per week” and in so far as it excluded all but the very lightest lifting, and “minimised unnecessary bending and extension of the lumbar spine.” So qualified, the prospects of the plaintiff securing such a position, at her age, and in the open labour market, must be regarded as relatively remote. 154   The future remains uncertain. It is subject to the morphine implant and conservative management limiting the frequency of exacerbations, and to the possibility previously mentioned of there being some improvement of the plaintiff’s condition once these proceedings are resolved. It is also subject to preoccupation and anxiety levels abating if the likely iatrogenic and emotional components are allowed to retreat. 155   The plaintiff’s claim is subject to the assumption, which I consider dubious, that, irrespective of the usual contingencies, she would have wished to work in a full time capacity without interruption, to the age of 65 years. It is also subject to the contingency that she would have gone on to develop symptomatic degenerative changes even without the intervention of the accident, given the evidence of their presence and the fact that she always had a potential weight problem, being 90 kgs. or thereabouts at the time of the fall. 156   Doing the best I can, taking into account all these features and the expert evidence concerning her current prognosis, I propose to assess damages, for this head, upon the basis of an ongoing diminution in earning capacity reflected by a net weekly loss of $170 per week. So calculated, this head of damages is assessed, with a discount of 15% for contingencies, as follows:

$170 per week x 697.3 x 0.85 = $100,760
Future Superannuation

157   There was agreement for arithmetic purposes, based upon a weekly gross wage of $464.90, at rates of 7% for 1.5 years, at 8% for 1 year, and at 9% for the future, less tax, that the value of the contributions lost would be $15,929. This sum should be reduced to reflect some allowance for the usual contingencies, and for the improbability of the plaintiff having elected to work in a full time capacity to age sixty-five, to a sum I round off at $9,500.

General Damages

158   It was the plaintiff’s submission that these should be awarded within a range of $250,000 to $300,000. This may be compared with the sum of $40,000 which the first defendant submitted was appropriate, and a sum within a range of $60,000 to $80,000 suggested by the second defendant (apportioned as to one half for the past). 159   Without restating my findings, and the reasons therefor, I am satisfied that the fall in 1986 has had disastrous effects for the plaintiff, and converted what was an extremely active and productive life into one that has been fraught with pain and difficulties, and into one that has required almost endless medical investigation, medication and treatment in one form or another. During the most intense period of treatment, her weight blew out to gross limits, and generally her family and social life were seriously disrupted. From the happy and active person she once was she changed for a significant time between about 1989/1990 and 1995 to an angry, impatient and anxious person afflicted with a sick role. 160   It is only in relatively recent years that she has been able to emerge to some extent from that situation and to regain some semblance of her former life. She is now less dependent on medication. She has some capacity to resume her social activities and to work in a limited capacity. During the period of her most serious disability, from 1988/89 to late 1995, her relationship with her family was strained, and her marriage broke down, leading to a separation from her husband in 1994. The difficulties within the marriage I am satisfied are related to the disabilities flowing from the original fall and the sequelae of its progress and treatment. At the present time, she has limited capacity for physical activity beyond the exercise regime recommended to her. There are, however, some hobbies and activities which she can undertake, and which she should be able to continue. 161   These are serious matters for an active person who had the pleasure of a large family. I would assess the general damages in the sum of $200,000 of which I would apportion one half to the past.

Past Griffiths v Kerkemeyer

162   This head of damages was the subject of considerable dispute, as was the claim in respect of the corresponding future loss. 163   The plaintiff’s submissions in this regard were summarised in a schedule as follows: · Barbara Woolcock

240 hours per annum. x 10 years x $12.50 per hour,

(i.e. about 4.65 hours/week) (calculated by error
in the schedule to be $24,015) $30,000

· Marie Roberts

120 hours overall x $12.50 per hour $1,500

· Trish McGrath

36 hours overall x $12.50 per hour $450

· Donna Cordina

36 hours overall x $12.50 per hour $450

· Edward Hanzic

728 hours per annum. x 8 yrs x $12.50 per hour

(i.e. 14 hours per week) $72,800

· Bianca Hanzic

520 hours per annum. x 8.5 yrs x $12.50 per hour

(i.e. 10 hours per week) $55,250

· Michelle Hanzic

364 hours per annum. x 10 yrs x $12.50 per hour

(i.e. 7 hours per week from age 10)

$45,500

· Faith Hanzic

208 hours per annum x 5 years x $12.50 per hour

(i.e. 4 hours per week from age 9) $13,000

520 hours per annum x 4.5 years x $12.50 per hour

(i.e. 10 hours per week) $29,250

· Alison and Karen Hanzic

156 hours per annum x 6 years x $12.50 per hour
(i.e. 3 hours per week from age 6) $11,700
520 hours per annum x 8 years x $12.50 per hour
(i.e. 10 hours per week) $52,000

· Eduard Hanzic

364 hours per annum x 6 years x $12.50 per hour
(i.e. 7 hours per week) $27,300

· Julie Paino

36 weeks x 2 hours per week x $12.50 per hour $900

· Therese Johnson

32 weeks x 2 hours per week x $12.50 per hour $800

$340,900

164   In her evidence in chief, the plaintiff agreed with questions put to her by her Counsel producing somewhat higher estimates than those in the Schedule - e.g. 14 hours per week for 8.5 years in the case of Bianca; 14 hours per week for Michelle; 7 hours per week to December 1990 and 14 hours per week between January 1991 and June 1995 for Faith; 14 hours per week until December 1991 and 28 hours per week thereafter for the twins. Additionally the figure of 240 hours in the schedule for Ms. Woolcock grew to 320 (8 hours per week for 40 weeks of the year) on the plaintiff’s evidence in chief, and to 416 hours per year in Mr. Capelin’s closing address. 165   It was the submission of the defendants that the fall did not give rise to any, or to any significant, need for domestic assistance. It was further submitted that the claim, as calculated upon the plaintiff’s behalf, and as summarised above, is grossly exaggerated and fundamentally flawed because:

(a) the proper measure of damages is the commercial cost of replacing the services performed by a person qualified to meet the needs, not by a simple multiplication out of the hours during which the children for example, may have carried out domestic tasks over the period in question;

(b) due allowance must be made for the tasks the children would normally have carried out, as an inevitable component in their progression from infancy to maturity, and

(c) the incapacity claimed by the plaintiff to carry out domestic tasks was not in accordance with the medical evidence, or with the answers to the self assessment questionnaires or history provided by her to the Pain Clinic.

166   If the fall has given rise to a claim under this head of loss then, it was submitted by the second defendant, the best measure was provided by reference to the work performed by Ms. Woolcock, of 240 hours per year (4.6 hours per week). Extended over approximately fourteen years since 6 January 1986, the loss would be 240 hours x 14 years x $12.5 = $42,000. The first defendant, however, submitted that, subject to the causation issue, allowance should be made at the rate of 14 hours per week over the period, i.e. 728 hours x 14 years x $12.5 = $127,400. 167   There is considerable force in the defendants’ submission concerning this head of claim. I am satisfied that it is excessive to a considerable degree and fails to take into account the extent to which the plaintiff’s children, in particular, would have undertaken activities about the house whether or not the plaintiff was injured. It also appears to me to overstate the period during which the children became significantly involved. 168   The claim can be tested by reference to a calculation of the amount of hours per week which the total claim of $340,900 (as presented in the Schedule) represents. Extended over a period of fourteen years in round terms since the accident, the calculation is $340,900 (14x52 weeks) $12.5 per hour = 37.46 hours per week. This is, in my view, a considerable overstatement of the plaintiff’s needs, even allowing for the demands of a large family. The reasons for that conclusion, so far as they are based on principle and fact, follow. 169   The plaintiff is entitled to damages for accident connected needs relating both to herself, and to the other members of her family for whom she would otherwise have performed domestic services: Sullivan v Gordon (1999) NSWCA 338. However, I am of the view that no loss is occasioned where chores performed or services provided by a parent, at the time of the injury, for a child or children, would in the ordinary currency of family life and obligation, have been passed on to those children as they matured, and as they were properly encouraged in their own interests, to assume some responsibility for their own care. Activities undertaken, for example, in looking after their own bedrooms, clothes, attending to their own toiletry, preparing their own snacks, looking after school related tasks, and the like, fall into this category. 170 The law has seen some shift in this respect since the decision in Kovac v Kovac (1982) 1 NSWLR 656 where Samuels JA said:

“If the principle confirmed in Griffiths is to be regarded as informed by considerations of policy, as I think it must … I do not believe that any head of policy … requires the ordinary currency of family life and obligation to be wholly ignored; or the inclusion in the area of compensation of the support commonly expected and received amongst the members of a family group…”.

Although Kovac was applied in a large number of cases, e.g. Burnicle v Cutelli (1982) 2 NSWLR 26; Hood v GIO (14 December 1988 - Sharpe M, as he then was); Mitchell v McDonald (21 April; 1988 Studdert J at 20); Attard v Fel (1 June 1990 - Abadee AJ); Rosniak v GIO (14 December 1990 - Badgery-Parker J); Lynch v GIO (1 August 1991 - Grove J), it was not always viewed favourably. In GIO v Planas (NSWCA 14 November 1984 at 12-14), the Court doubted the extent of the so-called Kovac ‘gloss’ but declined to reconsider what was said there. See also Haines v Bendall (NSWCA 22 February 1990 at 20) for the expression of a similar sentiment. Later, in Trevali v Haddad (NSWCA 16 November 1989), Meagher JA (with whom Priestley and Mahoney JJA agreed) commented that Kovac had no ratio, and establishes if anything only that there can be no compensation if domestic services would have been furnished in any event by their provider.

171   In 1992, the High Court in Van Gervan v Fenton (1992) 175 CLR 327 expressed its disapproval of Kovac and similar decisions. That case concerned an injured plaintiff who was receiving full-time care from his wife, who gave up her job following the accident. Mason CJ, Toohey and McHugh JJ said:

“It does not seem reasonable that the defendant’s liability to pay damages should be reduced at the indirect expense of the provider by invoking notions of marital or family obligation to provide the services free of charge or at less than market rates.” (at 335)

“In this case, the appellant’s need is essentially for constant care and attention. No doubt some of the services which are now needed by the appellant were provided for him by his wife before the accident. But with great respect to those judges who have taken the contrary view [referring to Kovac and other cases], no allowance in favour of the respondent can be made for such matters…If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously.” (at 338)

But cf Brennan J at 340-341:

“I am in general agreement with what Mason CJ, Toohey and McHugh JJ have written, subject to one qualifying factor that arises when an injured plaintiff and the person who provides care for him or her are living together as husband and wife or in some other personal and permanent relationship…it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care giver in return.”

172   The NSW Court of Appeal has since acknowledged that Kovac is no longer good law. See for example Maley v Milne (NSWCA, 10 October 1994) and Mitchell v GIO (NSWCA, 19 February 1993). 173   In Kealy v Fairfield Hospital (Supreme Court of New South Wales, 18 April 1997) a case where the plaintiff’s husband took care of her and her two daughters, who were aged 16 and 13 years at the time of the hearing (11 and 8 years at the time of the injury), Dunford J observed (at 11), in a passage that has some relevance to the present case:

“The ordinary incidents of family life in this community are that the mother commonly ensures the cleanliness of the children’s rooms with such assistance as she can muster from the children and does their laundry and ironing…It is impossible to divide some functions, such as cooking meals and grocery shopping…between the needs of the injured plaintiff and the needs of the whole family; but such activities do not include the making of beds of teenagers and would not in the future include doing laundry or ironing for children who had left school.

174   So far as this observation rested upon Burnicle v Cutelli, it would no longer be good law. However, as an observation that recognises that older children would, in the ordinary course, look after themselves, it is consistent with the view that no relevant need exists as a result of the accident that should now attract damages.

175   Similarly, in Nguyen v Nguyen (1990) 169 CLR 245, a claim under the Queensland equivalent of Lord Campbell’s Act was made for loss of domestic services. The court acknowledged that a Griffiths v Kerkemeyer assessment is different from a Lord Campbell’s Act assessment in that the former is based on need (at 264). Nevertheless the following passage in the judgment of Dawson, Toohey and McHugh JJ (at 266) in relation to recovery principles under the Act, is of some relevance:

“In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household.”

176   The plaintiff gave evidence to the effect that Ms Woolcock had provided assistance for ten to eleven years, in relation to heavy housework like vacuuming, washing floors, cleaning bathrooms and ironing, and taking her to medical appointments. This work, it would appear from the evidence of the plaintiff and Ms. Woolcock, began in 1987 and continued until about 1998, and occupied about eight hours per week. Ms. Woolcock was remunerated at one stage, for about three months, for three hours per week. Otherwise she was unpaid. 177   The plaintiff said that Mrs. Roberts also assisted with ironing, particularly after her periods of hospitalisation, over a period of two years. Further assistance, she said, was provided by Mrs. McGrath and Mrs. Cordina, in relation to ironing and heavy housework that was beyond her. Mr. Hanzic she said helped with some of the things that the friends mentioned had not finished. Bianca she said did a lot of supervision in getting the other children up and about, in cutting lunches, and cooking, a role that Michelle later took over. A roster was established under which they shared chores - a procedure which is hardly unknown within most families of any size. 178   Julie Paino, she said, was now paid to give the house a “thorough go-through” for two to three hours per week, at a rate of $12.50 per hour. 179   The plaintiff said that all she could manage was light dusting, organising, sorting washed clothes and the like, shopping for groceries, driving the children around, and similar activities which she could take her time to complete. She also acknowledged that between 1986 and 1989, i.e. before the symptoms began to progress to the serious extent that was evident from 1991 onwards, she was doing some of the work about the home, and even in 1991 she was “still reasonably active”. 180   It was from this time, upon advice of the Pain Clinic, that she began to pace herself and arrange for the rest of the family to take on more responsibilities. Even so, as the self assessment sheets show, the plaintiff was still doing a good deal of the vacuuming, sweeping, bathroom cleaning, driving and other activities, at least until the end of 1991. 181   Michelle Hanzic gave evidence that before the plaintiff’s fall the other children were expected to do some chores, including vacuuming part of the house, making their own beds, assisting with the shopping and doing a small amount of light ironing. After the fall, they had to take over some of the heavier work that their mother had previously done for them, including washing, and ironing at least those items for which there was a special need by one of the children, and finishing off the vacuuming of the house. She confirmed that the position with her mother was one of a slow decline, with her being on occasions in obvious pain and distress and unable to complete what she was trying to do. She also confirmed that her mother appeared to improve once she received the morphine pump, and that thereafter she was able to do more things around the house. 182   In accordance with the line of authority previously mentioned, what is to be determined is the need of the plaintiff attributable to the accident, excluding the household services which the remaining members of the household might reasonably have been expected to provide, had the accident not occurred. A good deal of the contributions provided by the husband and children, in the present case appear to fall within this category. Moreover, if it is to be compensated at an hourly rate, then it would seem inappropriate to provide a full hourly rate for services that were performed slowly by the children because of their inexperience or youth. Adjustment needs to be made for these matters, as well as for the circumstance that the older children (Bianca, Faith and Michelle) had all left home by the beginning of 1996; for the circumstance that the plaintiff has effectively been separated from her husband since about 1994, and for the further circumstance that she is now more mobile. 183   I propose to approach this part of the plaintiff’s claim upon the basis that the assistance provided by Ms Woolcock, and the three other friends (for limited periods) represent a minimum guide for a determination of the plaintiff’s needs, which should be supplemented, to a reasonable extent, by the additional contribution of the plaintiff’s husband and her children. The need I accept was not insignificant, particularly in the years between 1991 and 1995, having regard to the size of the family. I assess damages under this head, accordingly, upon the basis of an average need, over the period, of 15 hours per week. So calculated, the loss is $12.50 x 15 hours per week x 720 (13 years 11 months) = $135,000.

Future Griffiths v Kirkemeyer

184   Somewhat inconsistently with its submission concerning the past need, which the second defendant confined to the services provided by Ms Woolcock, it submitted that the future loss should be calculated upon the basis of eight hours per week, reduced by 50% for the contingencies of further improvement in the plaintiff’s condition, and the uncertainty as to her future needs. Extended over a life expectancy of 35 years, the claim so calculated would sound in a loss of $68,274 ($15 per hour x 8 hours x 1137.9) x 0.50 = $68,274. The first defendant, in a similar submission, invited assessment at the rate of 7 hours per week, subject, however to a discount of only 15%, i.e. ($15 per hour x 7 hours x 1137.9) x 0.85 = $101,558. 185   The plaintiff, however, submitted that the loss should be calculated upon the basis set out as follows (subject to correction for what appear to me to be some incorrect multiplication in the schedule):

Alison and Karen Hanzic

1137.9 x 7 hours per week x $15 per hour = $119,479

Eduard Hanzic

1137.9 x 7 hours per week x $15 per hour = $119,479

Julie Paino

1137.9 x 2 hours per week x $12.50 per hour = $28,447

Therese Johnson

1137.9 x 2 hours per week x $12.50 per hour = $28,447

$295,852

186   It is not readily apparent why different hourly rates were suggested in the calculation. This would seem to be an error, in view of the agreement between the parties that for the future a rate of $15 per hour was reasonable. Nor is it the case that the children could be expected to provide the services indefinitely. It may be assumed, however, that the hours suggested, and the rates, were selected as a likely indicator of what would be required for the future, by whomsoever it was provided. Upon that basis, the plaintiff’s claim assumes a continuing weekly need equivalent to 18 hours, or just over 2.5 hours per day. I am satisfied that this is well beyond what is required, in view of the plaintiff’s present state, the change in her family circumstances and the absence of any more precise evidence as to the services presently needed. 187   In my assessment, an ongoing need of eight hours per week is reasonable, which should not be subject to any further discount for contingencies. Those relevant to age and usual vicissitudes are taken up in the life tables. Otherwise, it is reasonable to expect that even though the plaintiff may continue to improve, she will need to take some care for herself, and avoid heavy work, lest her problems be aggravated. An ongoing cost of $15 per hour would not be unreasonable. 188   Upon that basis I propose to allow eight hours per week for the future, sounding in a loss of 1137.9 x 8 hours x $15 per week = $136,548. 189   Subject to adjustments for interest and for workers’ compensation receipts (for which the first defendant, but not the second defendant, is entitled to an offset) the heads of damage I assess as follows:

Past out of pocket expenses $126,455

Future out of pocket expenses $237,626

Past Diminution of Earning Capacity ` $129,629

Fox v Wood $3,653

Past Superannuation $3,400

Diminution of Future Earning Capacity $100,760

Future Superannuation $9,500

General Damages $200,000

Past Griffiths v Kirkemeyer $135,000

Future Griffiths v Kirkemeyer $136,548

$1,082,571

190   It was agreed that the plaintiff was entitled to interest on the past losses as follows:

Griffiths v Kirkemeyer 2% per annum

Past General Damages ($100,000) 2% per annum

Past diminution of earning capacity 5% per annum

191   I require the parties to bring in short minutes to reflect the necessary interest calculations, after any offset for the workers’ compensation receipts, and to give effect to the terms upon which the cross claims have been settled. I stand over any argument as to costs until such time as that has been done.

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Last Modified: 12/20/1999