| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HOUSTON -v- MDL CORPORATION PTY LTD [2006] WADC 156 CORAM : COMMISSIONER POWER HEARD : 1416 MARCH & 34 AUGUST 2005 DELIVERED : 28 SEPTEMBER 2006 FILE NO/S : CIV 1212 of 2002 BETWEEN : JANINE MARGARET HOUSTON Plaintiff
AND
MDL CORPORATION PTY LTD
Defendant
Catchwords: Occupier's liability - Damages - Laceration of right hand and tendon - Breach of duty - Causation - Past economic loss Legislation: Evidence Act 1906
Occupiers Liability Act 1985 Result: Judgment for the plaintiff in the amount of $25,080.40
(Page 2)
Representation: Counsel:
Plaintiff : Mr J R Criddle
Defendant : Ms B A Mangan
Solicitors:
Plaintiff : Bradford & Co
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Davies v Delta Corporation Ltd [2001] WADC 190
Lamb v Cotogno (1987) 164 CLR 2
Spautz v Butterworth (1996) 41 NSWLR 1
Triggell v Pheeney (1951) 82 CLR 497
Westralian Caterers Pty Ltd v Eastment Limited (1992) 8 WAR 139
Case(s) also cited:
Nil
(Page 3)
Introduction 1 The plaintiff was born on 9 January 1968 and is now 38 years of age. In this action, she claims damages for personal injuries, which she alleges she suffered on 6 June 2001 at a hairdressing and beauty salon, which was operated and occupied by the defendant, located at 91 Birdwood Avenue, Como ("the premises") and known by the name: "Flare Today Hair & Beauty". 2 The plaintiff alleges that she injured her right hand, when she turned over on a treatment table ("the treatment table") (exhibit D9) in a beauty treatment room ("the beauty room"), from a position where she was lying on her back to one in which she was lying on her stomach. In the process of doing so, she alleges that the back of her right hand came into contact with a mural ("the mural"). 3 The mural (exhibit D10) was hanging on a wall to her left ("the mural wall") as she was lying on her back. The mural consisted of two triangular sections. They were suspended one from the other and from the mural wall by metal chains at the time of the alleged accident. The mural is depicted in eight photographs, which were taken some time after 6 June 2001 and which show the beauty room and the mural hanging on the mural wall (exhibits D1-D8). As the photographs show, the lower of the two triangular sections of the mural was partly comprised of broken pieces of mirror or glass ("the broken glass"), which had been affixed to the exposed and outward facing surface of the mural. 4 The edge of the treatment table closest to the mural wall was between 45 and 50 centimetres from that wall. The vertical distance between the uppermost surface of the treatment table and the lowest part of the mural, when suspended on the mural wall, was 50 centimetres (exhibit D13). 5 Specifically, the plaintiff alleges that the back of her right hand struck a sharp edge on one or more of the pieces of the broken glass on the lower triangle of the mural with sufficient force to lacerate the skin and divide a tendon known as the extensor digitorum communis ("the plaintiff's injury"). 6 There is no real dispute that the extensor digitorum communis tendon in the plaintiff's right hand was examined and found to be divided on 6 June 2001 and repaired the following day in surgery. (Page 4)
7 As a result of her injury, the plaintiff claims she suffered loss and damage, was physically disabled, and as a result suffered a loss of earnings, a loss of opportunity and required gratuitous services by reason of not being able to care for herself in certain respects.
The issues 8 The pleaded defence was further amended by the defendant on the first day of the trial, when it became apparent that it was alleging that the plaintiff's injury was self-inflicted (see par 4.11A of the amended substituted defence dated 14 March 2005 ("the defence")). This amendment resulted in a reply being filed by the plaintiff on the following day of the trial which, other than joining issue on the allegations in the defence, specifically denied the allegations in par 4.11 and par 4.11A of the defence and claimed aggravated damages for the anxiety, stress and embarrassment caused by the manner in which the defendant had conducted its defence, and in particular, the allegation that the plaintiff had deliberately injured herself. 9 The issues for determination at trial were as follows: 1. what duty, if any, did the defendant owe towards persons such as the plaintiff; 2. did the broken glass on the mural have any edges sharp enough to cause the plaintiff's injury and if so, was sufficient force generated for it to occur and did the plaintiff's injury occur in the way she alleges it did; 3. if the plaintiff's injury was caused by contact with a sharp edge on the broken glass on the mural ("the contact"), was the contact deliberate or accidental; 4. were there any reasonable precautions which could have been taken by the defendant to minimise or avoid the risk of injury and if so, what could have been done; 5. was the defendant, in all of the circumstances, in breach of its duty under the Occupiers Liability Act 1985 ("the Act"); 6. what was the nature and extent of the plaintiff's injury and any resulting disability, loss and damage; 7. more specifically, did the plaintiff: (i) suffer any economic loss, and if so, what did she lose; (Page 5)
8. was any loss or damage suffered by the plaintiff caused or contributed to by an unrelated mental illness, psychological problems, addiction to alcohol or abuse of prescribed and illicit drugs; and 9. did the defendant conduct the defence in such a way as to entitle the plaintiff to aggravated damages for anxiety, stress and embarrassment and if so, what is the nature and extent of any such entitlement to damages? 10 It is important to observe at the outset that the amendment to the defence, pleaded in par 4.11A, confined the allegation of deliberate self-harm to the plaintiff's account of the facts that she suffered the injury as a result of the contact with the mural. The defendant contended the contact was deliberate, not accidental. It was not the defendant's case, either on the pleadings or in the course of conducting the trial, that the plaintiff's injury had been deliberately self-inflicted in some other way or at some other time.
Duty of care 11 The defendant was, by its own admission, the occupier of the premises on 6 June 2001. As the occupier, it owed a duty of care under the Act to persons, such as the plaintiff, who were entering the premises as customers. The duty was in respect of dangers due to the state of the premises or to anything done or omitted to be done on the premises and for which the defendant was by law responsible. The care which the defendant was required to show towards persons such as the plaintiff was such care as in all the circumstances of the case was reasonable to see that that person would not suffer injury or damage by reason of any such danger (s 5(1) of the Act). 12 Without restricting the generality of s 5(1) of the Act, in determining whether a defendant has discharged its duty of care, it is necessary to consider a number of matters, including: (Page 6)
(c) the nature of the premises; (d) the knowledge which the defendant had or ought to have had of the likelihood of persons such as the plaintiff or property being on the premises; (e) the age of the person entering the premises; (f) the ability of that person to appreciate the danger; and
13 In this case, the plaintiff contends that: (a) The location of the mural:
(i) with a sharp edge on one or more of the pieces of the broken glass on the lower part of the mural; (ii) in close proximity to the treatment table; (iii) which persons such as the plaintiff would be required to turn over on when lying on the treatment table in the course of receiving treatment such as leg waxing, with the risk that contact may be made with one or more of those edges;
(b) the ability of those employed by the defendant to appreciate the danger that posed; and (c) the ability for the defendant to remove that danger by either moving the mural or the treatment table or by giving a warning to persons such as the plaintiff when turning over on the treatment table, all amount to a breach of the defendant's duty of care under the Act.
Evidence of Janine Margaret Houston 14 The plaintiff gave evidence to the following effect at trial and was cross-examined at length. (Page 7)
15 The plaintiff was born in India on 9 January 1968. She emigrated with her family to Australia in 1975. She attended Como Primary School and Como Senior High School. After completing her secondary education she did some training with the Department of Employment. 16 The plaintiff then worked in a variety of primarily clerical and administrative positions from about 1987 until 1991. Between 1991 and 1992, the plaintiff completed a certificate in travel consulting at the Perth College of TAFE. Between 1992 and 1994 she had a variety of casual jobs, before commencing work for Ansett Australia. She worked for Ansett Australia for three years. She then travelled to London and worked for Singapore Airlines for four months, before returning to Australia in 1998. In 1998 she decided that she no longer wanted to work in an office environment. She returned to TAFE and studied municipal law enforcement. She then worked as a ranger with a number of municipal councils. At the date of trial, she was not working as a ranger, but as a security officer. Immediately prior to 6 June 2001, the plaintiff had worked for Chubb Protective Services as a revenue protection officer on the urban rail system. She finished that employment in April 2001. 17 Since 1999, the plaintiff has worked in a number of jobs, which were obtained for her by Logo Appointments. It is apparent from the letterhead of Logo Appointments, which appears to be a business name used by Venus Corporation Pty Ltd, that it is a recruitment agency specialising in Local Government appointments. 18 In June 2001, the plaintiff was notified of and accepted an assignment to work as a ranger for the Shire of East Pilbara at Newman in the north-west of Western Australia for a period commencing 7 June 2001 and ending 20 June 2001. The hours described in the details of assignment were Monday to Friday from 8.30 am to 5.00 pm (subject to change and possibly including some weekend and call-out hours). The plaintiff was to be paid a flat hourly rate of $19. In addition, she was to receive 8 per cent superannuation, workers' compensation and public liability cover. The assignment was accepted by the plaintiff, signed and dated 1 June 2001 (exhibit P1). 19 The plaintiff was looking forward to beginning work as a ranger in Newman. Indeed, she said she could not wait to go. (Page 8)
20 It was the plaintiff's case that she had been in regular employment from the time when she left school until 6 June 2001. She accepted that she had a number of different jobs during that time, but did not accept that there had been any significant periods of unemployment since leaving school. 21 On 6 June 2001, the plaintiff attended the defendant's premises to have her legs waxed. She had been to the premises previously for similar waxing treatments, facials and hairdressing. 22 The business conducted at the premises was managed by Giuseppe Franco and his wife, Jane Anita Franco, who were both directors of the defendant at the time. Mr Franco was a hairdresser who managed the hairdressing aspect of the business, whereas Ms Franco was a beautician who appears to have managed, or was at least involved in, the beauty treatment aspect of the business. 23 On arrival at the premises, the plaintiff was shown to the waiting room. She was then collected from the waiting room and taken by Ms Franco into the beauty room. The beauty room was part of a partitioned area at the back of the hair salon. The plaintiff described the beauty room as a small room measuring about four metres long by about two to three metres wide. 24 On entering the beauty room, the plaintiff removed the clothing from the lower part of her body, but kept her underpants on. She then lay on her back on the treatment table. Her head rested on a pillow. The pillow was covered with a pillow case. The treatment table was covered with butcher paper. 25 The waxing treatment was carried out using hot wax and a spatula. The hot wax was put on the plaintiff's legs and then pulled off after it had cooled and hardened, stripping the hairs from her legs. Ms Franco waxed the front of the plaintiff's legs first as she lay on her back. It took about 15-20 minutes. After that was done, the plaintiff was asked by Ms Franco to turn over on the treatment table, so that Ms Franco could wax the backs of her legs. 26 The plaintiff gave the following account of how she turned over on the bed and injured her right hand: "I was lying on my back and I'm up high on a narrow bed. So I lifted myself with my left hand, elbow and moved over and in the process hit - came into contact with the mural on the wall, (Page 9)
hit my hand and followed my turning over, and when I hit my hand on the thing on the wall I felt like a bruising sensation and when I looked at my hand I realised that my hand had been cut open, so I brought it to Jane's attention." (T57-58) 27 In the course of giving that evidence, the plaintiff also described her movements physically in the witness box. It was apparent from her description that she elevated herself on her left arm on the treatment table and then rotated her body from right to left in a raised position with her right arm outstretched, but not completely straight, before bringing her right arm underneath her body with her body then face down on the table (T59). In describing the movement of her right arm, the plaintiff traced a fairly wide arc from right to left. 28 The plaintiff then went on to give the following account of what occurred after she had brought the cut to Ms Franco's attention: "I must - might have said, 'Oh my God, that look's pretty bad'. There was more than just a bruised sensation. It was actually cut. That's what the first feeling was. It was a bruised sensation, like I'd hit something hard. When I saw it, my hand was open. It was all – the inside of my hand – I could see the inside. It was yellow-looking. Did Jane do something at that point?---She had a look at my hand and she said, 'I might go and' – I think she said, 'I'll go and see if there is a nurse' in the hair salon part and she went out and came back with a lady." (T62) 29 While Ms Franco was out of the room, the plaintiff continued to examine her wound and started to become concerned and upset. She was aware that she had to fly out later that day to Newman. As she put it, she was hoping that everything would be fine. 30 When Ms Franco returned to the waxing room, she returned with another woman, who the plaintiff did not know. This other woman, who appears to be a Ms Joy Noel Selman, re-assured the plaintiff about her injury and told her she would need a couple of stitches in the laceration. The plaintiff recalls another female employee of the defendant entering the beauty room at some stage during that period, but she appeared to be unsure of precisely when that happened. She was asked if she wanted a Panadol or something. (Page 10)
31 In any event, a decision was made (it is not clear by whom it was made) that the plaintiff should be taken to a doctor, so that her laceration could be examined. Ms Franco wrapped the plaintiff's right hand in a hand towel. She then took the plaintiff to Dr Alexandra Newfield's surgery. 32 Before leaving the premises, the plaintiff had the waxing treatment on the backs of her legs completed. The plaintiff wanted the treatment completed, because she had an interview for another job as a ranger at the Town of East Fremantle at noon and was then going to travel to Newman. Time was at a premium. Her intention was to have the waxing treatment completed, have her laceration sutured and then travel to Newman. 33 On arrival at Dr Newfield's rooms at the Southern Clinic, the plaintiff was immediately examined. According to the plaintiff, Dr Newfield told her that she (Dr Newfield) was concerned that the plaintiff might have tendon damage and told her that she wanted her to see a specialist, hand surgeon or plastic surgeon at Royal Perth Hospital. By this stage, the plaintiff was emotional and tearful. She was getting concerned about time, because she knew that she had a job interview to attend and was to travel to Newman later that day. 34 The plaintiff was then driven from Dr Newfield's surgery to Royal Perth Hospital by the husband of another employee of the defendant. 35 At Royal Perth Hospital, the plaintiff was seen by two doctors and told that she had severed the tendon in her right index finger. She asked if it could be sutured there and then, so that she could return for further treatment after she had completed her assignment in Newman. She was told that her finger would not work very well and that she would need to have it operated on immediately. Arrangements were then made for her to return for surgery on the following day. 36 In the meantime, she had re-scheduled her interview for the position at the Town of East Fremantle and informed Logo Appointments that she would not be able to travel to Newman to undertake that assignment. 37 On the following day, the plaintiff attended Royal Perth Hospital, was given a general anaesthetic and her right hand was operated on. The surgery took place in the morning. She was discharged later that afternoon. (Page 11)
38 After the operation, the plaintiff's hand was put in a splint and bandaged. She could not use it. She stayed at her house that night and attended the re-scheduled interview at the Town of East Fremantle the next day. It appears that on or about that day, the plaintiff then moved in to live with her mother at her house. 39 While she was wearing the splint, the plaintiff's mother cooked for her, washed her hair, helped her dress and shower, washed her clothes and did other things which she could not do for herself, because of her inability to use her right hand. The plaintiff was and is right handed. She estimates that her mother spent about two hours a day assisting her with the various tasks that she was otherwise unable to perform for herself. 40 The plaintiff's mother continued to assist her until the splint was removed and she was allowed to use her right hand. She believed the splint was removed about half-way through July 2001. Until then, she could not do anything with her right hand. 41 Initially, the plaintiff's right hand was bandaged and in a splint until the stitches were removed. Her right hand was then put in a different type of splint, a plastic splint with Velcro, which she could remove. She still was not at that stage allowed to use her hand. 42 While wearing a splint, the plaintiff had no treatment on her hand. After the splint was removed, the plaintiff had some occupational therapy. She cannot remember how many sessions of occupational therapy she had, but she believed that she had quite a few. 43 Even after the plaintiff was no longer required to wear a splint on her hand during the day, it was still necessary for her to wear a splint at night. 44 The plaintiff was given a final clearance from her injury, with a full range of movement, on or about 3 August 2001. 45 Even after the final clearance was given to the plaintiff, she noticed that there was a knot in the top of the flesh on the back of her right hand, where the tendon was repaired. She described a sensation of impaired movement. She had ultrasound, massage and some exercises to get rid of the knot and return full movement. She estimates the knot was present for about a year. 46 The plaintiff still experiences a few sharp and tingly pains in her right hand during winter. (Page 12)
47 The plaintiff's injury was painful at the time it was sustained and for a few days after the tendon had been repaired. She took Panadeine Forte for a couple of days after the repair of the tendon. She did not have any pain while undergoing occupational therapy, just stiffness. 48 After being given the medical clearance for her right hand, the plaintiff then sought clerical employment through Logo. 49 In cross-examination, the plaintiff was questioned at length about prior incidents in which she had allegedly injured herself deliberately. She readily admitted to most of these incidents, but made it clear that each incident occurred when she was depressed, intoxicated and emotional. They were usually accompanied by feelings of anger, guilt, pain, frustration, hopelessness, betrayal and distrust. 50 In cross-examination, the plaintiff also confirmed that the bottom of the mural was higher than the upper surface of the treatment table, but could not remember how much higher it was. 51 The plaintiff also stated in cross-examination that when she was turning over on the treatment table, she was not intending to strike the mural wall, it was just in the way. 52 In cross-examination, the plaintiff also confirmed that when she hit her hand she was not aware of any noise, like a jangling of chains or a banging on the gyprock of the room. It was very quick. The plaintiff looked at her hand seconds after she felt the bruising sensation and noticed it was bleeding. 53 In cross-examination, the plaintiff also confirmed that the two hours per day, which her mother spent caring for her, while she was living at her mother's house, were also spent by her mother in doing things for herself. Not all of that time was spent caring for the plaintiff. 54 In re-examination, the plaintiff said she was shocked, distressed, upset and angry about the allegation in the amended defence that she had deliberately injured herself. She could not believe that someone would make such an allegation. 55 In relation to the cross-examination about her past history of previous self-harm, the plaintiff made it clear in re-examination, that she suspected it would be raised, but regarded it as horrible that the defendant would use her medical history to try to make it look like she was a "… crazed person …" who would go to the defendant's place of (Page 13)
business and deliberately injure herself. She made it clear that she was not depressed, drunk or in an emotional crisis at the time. On the contrary, she said she was happy, going to get beautified and was, consequently, very angry about the allegation. 56 In re-examination, the plaintiff also explained that the reason why she had a tendency to self-harm was because she was sexually abused by someone in her family when she was a child of 9 years of age. She realised what had happened when she reached her early 20's. At the time, she could not understand her emotions and feelings and was very angry with herself, felt very guilty and ashamed and got drunk to feel better. She believes she injured herself in the past, because she was angry with herself. 57 I have carefully considered the plaintiff's evidence. She gave her evidence in a clear and forthright manner. She made appropriate concessions in cross-examination and was, on the whole, a co-operative witness. I am prepared to accept her as a truthful and reliable witness.
Evidence of Alexandra Newfield 58 Dr Newfield was called by the plaintiff and gave evidence to the following effect. 59 Dr Newfield was and is a general practitioner. She examined the plaintiff on 6 June 2001 at her surgery at the Southern Clinic in South Perth. She subsequently prepared a medical report on that consultation, which is dated 3 December 2001 (exhibit P2). 60 When Dr Newfield examined the plaintiff, she observed a deep laceration across the dorsum of her right hand. She believed the plaintiff may have damaged a tendon. Consequently, she referred her to the plastic surgery registrar at Royal Perth Hospital for exploration of the wound and suturing. She has not seen the plaintiff since. 61 Dr Newfield recorded the plaintiff's history of how she sustained the injury and expressed the opinion that the plaintiff's description of how the accident occurred was consistent with the wound she observed. She described the laceration as deep, because it went through the full thickness of the skin and she could see the tendons underneath. 62 Dr Newfield had not seen the plaintiff prior to that consultation, although the plaintiff had been a patient of the Southern Clinic and had seen other doctors at that clinic on previous occasions. (Page 14)
63 Dr Newfield did not read the clinical notes on the plaintiff's medical file until after the consultation on 6 June 2001. 64 In cross-examination, Dr Newfield denied asking the plaintiff the question: "Have you been making bracelets again?" She also denied that she was aware on 6 June 2001 that the plaintiff had a history of cutting her wrists.
Evidence of Grant David Booth 65 Dr Booth was also called by the plaintiff and gave evidence to the following effect. 66 Dr Booth was employed at Royal Perth Hospital as the plastic surgical resident on 6 June 2001, when the plaintiff was referred to the plastics dressings clinic. He examined her, noted a laceration to the dorsum of her right wrist and that one of the extensor tendons to her right finger was divided. 67 Dr Booth operated on the plaintiff's injury on 7 June 2001, with Dr Vijayasekaran, who was the registrar at that time. Dr Booth excised the edges of the wound and repaired one of the two tendons to the right index finger. The tendon was completely divided. The wound was then closed. His notes confirmed that the edges of the wound were debrided, which may have been because the edges of the wound were not perfectly straight. The tendon was repaired using a non-dissolvable suture. 68 The Centrelink Victoria Park medical certificate dated 11 June 2001, the operation check and consent form for Royal Perth Hospital dated 6 June 2001 and the Royal Perth Hospital final discharge summary form dated 18 June 2001 were all tendered through Dr Booth (exhibits P3 to P5). 69 In cross-examination, Dr Booth confirmed that the tendon which was damaged and required repair was the extensor digitorum communis. He described the tendon as very firm and about two to three millimetres wide. He agreed that they were strong in tension, with an enormous breaking strain, but noted that if a sharp edge was put to it, it would cut through it very easily. He confirmed that anything with a sharp edge would cut through the tendon. He emphasised that if the edge was sharp enough it would easily cut through and divide the tendon. (Page 15)
70 In the Centrelink medical certificate signed by Dr Booth, he certified the plaintiff unfit to do her usual work and expressed the opinion that she would be unfit for work until 19 July 2001 inclusive (exhibit P3).
Evidence of Andrew David Crocker 71 Mr Crocker was not called to give evidence at trial, but his evidence was tendered by the plaintiff. 72 A report from Mr Crocker dated 1 June 2006 and his curriculum vitae, apparently current as at that date, were tendered in evidence (exhibit P9) without objection and without the need for Mr Crocker to be called for cross-examination. Mr Crocker was and is a specialist in plastic and reconstructive surgery, microsurgery and hand surgery. It is apparent from his report that he reviewed the plaintiff on 24 May 2005. 73 Mr Crocker's diagnosis of the plaintiff's injury was a complete division of the extensor digital and communus (sic) tendon. He considered the history and clinical findings to be consistent with the plaintiff's account of having struck the back of her right hand forcefully against a sharp edge. He expressed the opinion that, given the mechanism of the accident described by the plaintiff, it would be possible to divide the extensor tendon. He went on to add that it is relatively easy to divide an extensor tendon, because of its predominantly superficial location, namely, just two millimetres below the skin surface, and the lack of any surrounding padding, as well as the fact that extensor tendons are less substantial than flexor tendons. 74 Mr Crocker found it difficult to determine the force required to divide an extensor tendon in measurable terms. However, he did add that any significant sharp contact to the dorsum of a hand, particularly over any bony prominence, has the risk of dividing an extensor tendon. He concurred with Dr Booth's comment that as the extensor tendons are not very substantial structures and are much less substantial than flexor tendons, they tend to be flatter and narrower and they are at risk of being lacerated by sharp objects. He noted that if the tendon is under some degree of tension and is lacerated, the ends can pop apart, whereas if the tendons are under no tension there is some degree of protection provided by that condition. He likened it to cutting a piece of string that is held taut, as opposed to a piece of string that is slack. 75 In summary, he considered the plaintiff's injury consistent with the stated cause. (Page 16)
76 It is apparent from a careful examination of Mr Crocker's curriculum vitae that he has a considerable amount of relevant experience on which to base the opinions which he expressed. 77 Mr Crocker's evidence was tendered in rebuttal to the evidence of Professor Jelinek, to demonstrate that the way in which the plaintiff said she cut the back of her right hand was consistent with the injury diagnosed and operated on by Dr Booth.
Evidence of Albert Sou Cheak Quo 78 Dr Quo was called by the plaintiff and gave evidence to the following effect. 79 Dr Quo was and is a general practitioner, having obtained his bachelor of medicine and surgery at the University of Western Australia in 1983. In the course of his practice, he had treated the plaintiff as a patient. 80 Dr Quo prepared a report dated 10 March 2005, which was tendered as part of his evidence (exhibit P10). The report was provided to rebut the evidence of Professor Jelinek. 81 Dr Quo confirmed that the plaintiff had been a patient of his for a number of years and confirmed the opinions expressed in his report. 82 Dr Quo's report is particularly relevant to the plaintiff's allegation that the plaintiff's injury was self-inflicted. Accordingly, I propose to review its contents in some detail. 83 Dr Quo confirmed, in his report, that he had been consulted by and treated the plaintiff for over a decade on a regular basis in his capacity as her general practitioner. In that time he had treated her for physical illness and injury and had addressed her psychological issues. He believed he understood her well as a person, having spent a lot of time counselling her. He confirmed that she had given him a personal history of sexual abuse as a child. It was his view that this, among other things, had led to intermittent self-injury occurring in the context of inappropriate self-guilt/punishment and a cry for help. He had seen her professionally in relation to these injuries, having treated her physical injuries and attempted to help her overcome her internal turmoil. He considered her psychological strength and insight had increased over the years, with counselling from himself and others, and that this had resulted in less alcohol intoxication and self-harm occurring. (Page 17)
84 Dr Quo then went on to describe the typical circumstances in which the plaintiff injured herself. He noted it often occurred when the plaintiff had lost a job or broken up with a partner. An event of that kind would be followed by the plaintiff consuming alcohol alone and at home as a means to lessen her internal pain. When intoxicated, she would descend into self-pity and reminisce about her unhappy past. In this state, she would then find some sharp implement and make small cuts on herself using her right hand to inflict those cuts on her left forearm. Cuts on her right hand were usually accidental, whilst cuts on her left arm were usually deliberate. She would then typically call her relatives or friends and tell them what she had done and ask for help. The next day she had little recollection of her behaviour due to her previous alcohol intoxication. The action was always followed by self-regret, when she recovered from the effects of the alcohol. 85 Dr Quo then set out the reasons why he did not believe that the plaintiff's injury was self-inflicted. 86 First, Dr Quo was unable to identify any immediately preceding stressor in her life at that time. On the contrary, he noted she was happily looking forward to a new job, which she was about to go to in the north of the state. 87 Secondly, the plaintiff was not intoxicated at the time of the incident. He confirmed that her self-harming behaviour usually occurred in the context of heavy intoxication, being alone and the immediately preceding stressors. He noted that none of these conditions were present on 6 June 2001. 88 Thirdly, Dr Quo noted that the plaintiff normally cut herself out of guilt, a need to punish herself and a need to distract herself from her mental anguish. She then called for help. He noted that there was no malice in her actions, no external blame, nor any intent to financially benefit from her actions. On the contrary, he noted that she was usually regretful after the event and tried to forget about the inappropriate act. For these reasons as well, he did not believe that the plaintiff's injury was self-inflicted. 89 Fourthly, Dr Quo noted that the plaintiff is right handed and had previously used her right hand to hold implements to cut her left forearm. Previous cuts to the right upper limb have been accidental. Moreover, he (Page 18)
noted that her cuts were always multiple. A single neat laceration to the right hand consistent with a single swipe past a sharp object was not consistent with these observations. 90 Finally, Dr Quo expressed the opinion that the swinging of her right hand while turning over, such that her outstretched right hand made contact with the broken glass could, as he put it, easily explain her injury. 91 Dr Quo went on to add that it was not uncommon to cut tendons on glass. He used, by way of example, persons walking through glass doors or accidentally putting their hands through glass. 92 In cross-examination, Dr Quo confirmed that, in the course of his consultations with the plaintiff, he was aware that she sometimes expressed her opinions too freely at work and that that tendency sometimes caused problems with her workmates or superiors at work. 93 Dr Quo was cross-examined at length about the prior incidents of self-harm involving the plaintiff. In answering those questions, Dr Quo readily and appropriately conceded that his understanding of the circumstances surrounding the plaintiff's incidents of self-harm were based on histories that she had provided to him and others.
Evidence of Guiseppe Franco 94 Mr Franco was called to give evidence by the defendant. He gave the following evidence. 95 Mr Franco was and is a ladies' hairdresser. He was at all relevant times a director of the defendant. At the time of the accident the subject of the plaintiff's claim, he was also an amateur artist who created murals for display in, among other places, the premises. He made the mural. He said he filed down the edges of the broken glass when making the mural, because they would have been sharp. He maintained that he ran his finger around the edges after filing them down. Presumably, he did so to ensure that no sharp edges remained. He hung the mural in the beauty room about a year and a half before 6 June 2001. He said that no-one else had injured themselves on the mural. 96 Mr Franco was not present at the premises on 6 June 2001. 97 Mr Franco said he checked the mural after he heard the plaintiff had hurt herself on it. He agreed that he had the opportunity, after the accident, to file down any sharp edges on the mural, but it was not put to (Page 19)
Mr Franco that he had filed down any sharp edges on the mural after 6 June 2001. 98 In the course of his cross-examination, Mr Franco was asked to examine the mural and to confirm that there were at least two sharp edges remaining on the broken glass on the bottom of the mural. He refused to confirm the assertion. 99 In re-examination, Mr Franco said that he did not in any way alter the edges of any of the broken glass on the mural after the accident. 100 I was not impressed by Mr Franco's evidence. He struck me as evasive and unco-operative in cross-examination. Accordingly, I am not prepared to rely on his evidence where it materially differs from the plaintiff's evidence.
Evidence of Jane Anita Franco 101 Ms Franco also gave evidence for the defendant at trial. Her evidence was as follows. 102 Ms Franco was and is a beauty therapist and a director of the defendant. She was working at the premises on 6 June 2001 and had known the plaintiff as a client for about 15 years. 103 Ms Franco said she got to know the plaintiff reasonably well and sometimes discussed the plaintiff's personal problems with her. She said that on a couple of occasions the plaintiff had told her that she suffered from stress and that she had a history of depression and attempted suicides. 104 Ms Franco confirmed that there were three beauty treatment rooms at the premises, each operated and laid out by the beautician who normally operated from that room. She confirmed that the photographs (exhibits D1 to D7) depicted her usual beauty treatment room, which was the beauty room in which the plaintiff alleged she was injured on 6 June 2001. She also confirmed that some of the photographs (exhibits D1, D3 and D4) depicted the room as it was set up on 6 June 2001, including the location of the mural on that day. 105 According to Ms Franco, the plaintiff asked her if anyone had ever knocked themselves on the mural. According to Ms Franco, the plaintiff also commented on the distance between the mural and the treatment table. Ms Franco said the treatment table was one metre from the mural wall. This contradicts the admission on the pleadings. By way of (Page 20)
explanation, Ms Franco said that she would sometimes need to position herself between the mural wall and the treatment table to finish off waxing treatments. Hence, her estimate of the distance. She denied ever hitting the mural or the mural wall or brushing against it when positioned between the mural wall and the treatment table. She then went on to say that she would know if she knocked it, because she would feel it and would hear it against the gyprock wall. 106 Ms Franco said she discussed the plaintiff's impending employment in Newman with her during the course of her waxing treatment. She said the plaintiff told her that she had applied for a job in Newman as a ranger and was going up there for a trial. She claims the plaintiff also told her she did not really want to go up there. She described the plaintiff's mood as quite sombre. 107 Ms Franco's description of how the plaintiff injured herself was not too dissimilar to the plaintiff's. She said she had just finished waxing the fronts of the plaintiff's legs and asked her to roll over, so she could then do the backs of her legs. Within seconds of rolling over, Ms Franco said the plaintiff told her she had knocked her hand on the mural. It is clear from Ms Franco's evidence that she did not witness the whole of the plaintiff's manoeuvre when rolling over from her back onto her front. She was at the time pre-occupied with preparing the materials to do the backs of the plaintiff's legs. She said she did not hear the plaintiff knock the mural wall. She says the plaintiff told her that her hand was bleeding. She was surprised that the plaintiff had cut herself, because she did not hear the plaintiff knock the mural wall. When she asked the plaintiff how she injured herself, she was told by the plaintiff that she knocked her hand as she rolled over. At this time, Ms Franco was still at the foot of the treatment table. She denied anyone else having hit the mural wall when turning over on the treatment table. 108 After Ms Franco had asked the plaintiff how her hand was and was told that it was bleeding, she noticed the plaintiff was getting a little nervous and panicky. She asked the plaintiff if she could go and get her a band aid. At the time, the plaintiff was on her front with her hands leaning up on the pillow. Ms Franco did not see where the plaintiff had injured herself. 109 Ms Franco then left the room to go to the office and obtain a band aid. There were none available. She then asked Penny Hajigabriel, another hairdresser on duty at the time, if she could obtain a wet towel. She did so because she said she was a bit squeamish about blood. (Page 21)
According to Ms Franco, Ms Hajigabriel went back into the room where the plaintiff was and put the towel on the wound. Ms Franco confirmed that she did not see the cut at any time. She did see some blood, being two spots on the pillow. However, that was about all she saw. 110 Ms Franco also confirmed that she asked Joy Selman, another customer, who she thought was a nurse, to come in and have a look at the wound. Ms Selman did so. According to Ms Franco, Ms Selman and Ms Hajigabriel came in together. At the time, Ms Franco noted that the plaintiff was sobbing and complaining that her hand was hurting. Ms Franco then corrected herself and said that Ms Hajigabriel came in after Ms Selman had come in. 111 According to Ms Franco, Ms Selman and Ms Hajigabriel told Ms Franco that she should take the plaintiff to a doctor. According to Ms Franco, the plaintiff asked her to finish waxing the back of her right leg. The plaintiff insisted she wanted it done before going away. Consequently, Ms Franco quickly completed the waxing and then drove the plaintiff to Dr Newfield. She said the plaintiff was crying a lot and holding the towel on her right hand during the drive. According to Ms Franco, the plaintiff said that she was concerned about the job up at Newman. 112 After Dr Newfield told the plaintiff that she should go down to Royal Perth Hospital, Ms Franco rang a good friend of hers, Greg Field, to take the plaintiff to Royal Perth Hospital. She then returned to work. On her return to the premises, she went back into the beauty room, removed the pillowcase, changed the towels and then, not wanting to go back to work in that room, went to work in one of the other rooms. When tidying up the room, she noticed two drops of blood on the pillowcase, but denied noticing any other blood in the room. She also said she looked at the mural, but did not see anything on it. 113 Later in the cross-examination, Ms Franco confirmed that the plaintiff told her that she had cut her hand after turning over. She denied that the plaintiff showed her the cut on her hand. She accepted that she had an opportunity to tell the plaintiff that she was surprised that she could cut her hand, but did not take that opportunity. 114 She also confirmed that she may have been mistaken about only doing the back of the right leg, rather than the backs of both legs, after she had asked the plaintiff to turn over. (Page 22)
115 Later in cross-examination, Ms Franco was asked about exhibit D13, a single page with three diagrams, apparently depicting the layout of the beauty room. She denied that she had prepared or been involved in the preparation of the diagrams. Notwithstanding the depiction of the distance between the closest side of the treatment table and the mural wall as 50 metres on the diagram, Ms Franco maintained the distance was one metre. She accepted that if it was one metre rather than 50 centimetres, it would support her contention that the accident could not have occurred in the manner alleged by the plaintiff. She agreed that she had seen the diagram previously and had not complained that it was wrong. 116 Ms Franco also gave evidence that when attending with the plaintiff at Dr Newfield's surgery, Dr Newfield had said to the plaintiff: "Have you been trying to make the bracelets again?" When Dr Newfield's denial of that statement was put to her, she maintained that the statement was made by Dr Newfield. 117 Ms Franco also confirmed having told counsel for the defendant that the cut to the plaintiff's hand on 6 June 2001 was very small and almost the size of a pinhead, despite not having seen the cut. She explained that apparent inconsistency by saying that she was standing behind Ms Hajigabriel at the time and was told it would be advisable for a band aid to be used. She assumed it was not a large cut, because a band aid would not be appropriate for a bigger cut. She then confirmed that she had said earlier in her evidence that she had left Ms Houston in the treatment room to get a band aid. She then confirmed that she did not see the cut at all. When asked again why she told counsel for the defendant that the cut was very small, she then proffered an alternative explanation, being the apparently small amount of blood on the pillow. Ms Franco then confirmed that there was a pillowcase on the pillow, but denied that there was more blood on the pillowcase than on the pillow. She did, however, say that the pillowcase was not worth keeping. The pillowcase was not produced at trial and did not become part of the evidence. 118 Ms Franco also accepted that she had an opportunity, when the plaintiff was being seen by Dr Newfield, to state that the accident did not happen in the way that the plaintiff described, but did not take that opportunity to make any comment about what was being said. 119 Ms Franco confirmed in cross-examination that she was at home when her husband made the mural and that she was present when he filed down the edges of the broken glass on the mural. She was not aware of her husband disposing of the file after 6 June 2001. He had apparently (Page 23)
made other murals for the other salons operated by the business. She did not know where the file was kept, but assumed it was kept in his toolbox. She accepted that, if the mural had sharp edges at the time of the accident, there would have been an opportunity and the means by which to file down those edges after the accident. She also accepted that she could have obtained the file if she wanted to. She recognised that the absence of sharp edges on the broken glass on the mural was an important factor in determining whether or not the accident occurred and that it was important to the defendant's case that the broken glass on the mural had no sharp edges which could cause a cutting injury. She asserted that she had checked the sharpness of the edges personally prior to the accident and did so because it was hanging in a treatment room where customers would be present. The assertion assumes that sharp edges may have been dangerous. 120 Later in her cross-examination, Ms Franco agreed that she had the opportunity immediately after being told by the plaintiff that she had cut her hand on the mural to say that the mural had no sharp edges on it, but did not do so. 121 Ms Franco also confirmed that on or about 15 June 2001, the defendant received a letter from the plaintiff's solicitors outlining the plaintiff's claim and replied to it, but did not state in the reply that the mural could not have cut the plaintiff because it had no sharp edges. 122 In re-examination, Ms Franco was asked why she did not say anything to the plaintiff when the plaintiff told her that she had injured herself (when she was apparently stunned by that information). Ms Franco said she did not say anything, because it all happened so quickly and it did not occur to her to ask the plaintiff questions about it. In relation to the plaintiff's description of the accident to Dr Newfield, Ms Franco explained that she did not feel it was her place to challenge it at that time, because she did not regard it as her place to say anything and Dr Newfield was asking the plaintiff what actually happened. At the time, Ms Franco said the plaintiff was crying. 123 In re-examination, the plaintiff also confirmed that she had not at any time since the accident altered the mural in any way. 124 Having regard to the totality of Ms Franco's evidence, I did not find her to be a compelling or reliable witness. I was left with the impression that she was prepared to give her evidence in a way which suited the (Page 24)
defendant's case, rather than confining herself to what she saw, heard and knew. Where her evidence differed in a material way to that of the plaintiff, I have preferred the plaintiff's evidence.
Evidence of Penelope Ann Hajigabriel 125 Ms Hajigabriel was called by the defendant and gave the following evidence at trial. 126 Ms Hajigabriel was employed as a hairdresser at the premises on 6 June 2001 and had been employed in that capacity since 1998. 127 At the relevant time, MsHajigabriel was blow-drying the hair of a customer, Joy Selman. She cannot recall anyone else in the salon at that time. As she was doing so, Ms Franco came out of the beauty room and called her into it. She asked Ms Hajigabriel if she had a band aid or something and said that the plaintiff had cut her hand. 128 Ms Hajigabriel went into the beauty room and saw what appeared to her to be a paper cut with two drops of blood on it. She then left the treatment room and Joy Selman went in. She recalled the plaintiff lying on her front at the time and she could recall that the plaintiff had a few tears. 129 In cross-examination, Ms Hajigabriel confirmed that as a hairdresser she did not go into the beauty treatment rooms very often. She also confirmed she had no medical qualifications. She did not touch the plaintiff. Nor did she separate the skin to see how deep the cut was. She could not recall providing a towel.
Evidence of Colin Richard Scarlett 130 Mr Scarlett was called by and gave the following evidence on behalf of the defendant at trial. 131 Mr Scarlett was a fraud investigator employed by the Insurance Australia Group. In June 2001, he was employed by Personal Injury Investigations, which appears to have been a business operated by a company of which he was a director. He was also a field investigator, having started insurance investigation in 1996 and having been mostly engaged in personal injury type claims. 132 In late 2001, he received instructions from Ross Weaver of QBE Mercantile Mutual to investigate the plaintiff's claim. (Page 25)
133 On 24 and 31 October 2001, Mr Scarlett visited the premises and met with Ms Franco. Ms Franco showed him the beauty room. He measured the room and found that it was two metres in length and 1.95 metres in width. He confirmed that the treatment table (exhibit D9), then in the courtroom, appeared to be similar to that which he observed in the beauty room on his visits. He said it was parallel to the longer wall of the room. He also confirmed that the mural (exhibit D10) was on the longer wall adjacent to the treatment table. 134 Mr Scarlett measured the treatment table, where the treatment table was in relation to the wall and the mural. He also examined the mural. He did so some time after 6 June 2001. His examination of the mural included the edges of the broken glass. He said he examined the edges of pretty much every piece of broken glass that he looked at. He said he looked at it quite extensively and noted that the edges had been smoothed off or filed in some way, so that there were no edges which would likely cause a cut. Mr Scarlett gave evidence that he was particularly interested in the bottom edge of the bottom piece of the mural and rubbed his finger all the way along the broken glass on the bottom edge looking for something that might be likely to cause an injury. He said he was unable to find any piece of broken glass of that nature. He said he tried quite hard to sustain some sort of a cut to his hand, but it did not occur. 135 Mr Scarlett identified the photographs (exhibits D1-D7) as photographs he took at the premises. He also said that he measured the distance between the treatment table and the mural wall on which the mural was hanging and found it to be 45 centimetres. He did so because he was told that the treatment table was in approximately the same position as it would have been when the plaintiff attended on 6 June 2001. He also gave evidence that the distance between the top surface of the treatment table and the bottom point of the mural was 50 centimetres. 136 Mr Scarlett was then shown exhibit D13, being the diagram of the mural wall and the treatment table, and said that he did not recall preparing the diagram and that the layout suggested to him that it was not something he would have done. 137 In cross-examination, Mr Scarlett confirmed that there was nothing to stop the treatment table being moved closer to or further away from the mural wall. (Page 26)
Evidence of Joy Noel Selman 138 Ms Selman was not called to give evidence. An affidavit sworn by her on 3 May 2005 was tendered by the defendant pursuant to s 79C of the Evidence Act 1906. 139 In her affidavit, Ms Selman deposed that she resided in Rushcutters Bay in New South Wales and underwent surgery in New South Wales on 10 March 2005. The surgery was performed by Mr David Dunn. She deposed that she remained under the care of Mr Dunn and continued to receive medical treatment from him and other medical practitioners in New South Wales. She also deposed that on 31 March 2005, she was told by Mr Dunn that she would need to undergo further surgery as a matter of priority. No date for that surgery had been fixed at the date of the swearing of the affidavit. Based on her discussions with Mr Dunn, she believed that following the surgery she would be incapacitated for an unknown period of time while recovering from surgery and would require further medical treatment from him. In addition to her medical treatment, her poor health would make it difficult to travel. 140 In the same affidavit, she also deposed that she lived in Perth in 2001 and was at that time a regular customer of the business conducted by the defendant from the premises. In addition to having her hairdressing done at the premises, she recalled that waxing treatments were performed in the beauty treatment rooms behind the hair salon. 141 Ms Selman deposed that she attended the salon to have her hair styled by a hairdresser, who she knew only as Penny, on 6 June 2001. At some stage while at the premises, Ms Franco came out of the beauty treatment room area and asked her if she was a nurse. She told Ms Franco that she was not a nurse and had no medical qualifications. She then asked Ms Franco if there was a problem. She was told by Ms Franco that there was a problem, because a customer in the beauty room had cut her hand. Ms Franco asked her to accompany Ms Franco into the beauty room to look at the customer's hand. She deposed that she went into the beauty room and saw a customer who had a small cut on her hand. The cut did not appear to her to be serious and she told Ms Franco and the customer so. She then left the beauty room. 142 As Ms Selman was not called as a witness, it was not possible for the plaintiff to test her evidence in the usual way by cross-examination. Nor was the Court in a position to make any assessment of her in the usual way in which an assessment can be made of a witness during the course of that witness's testimony. Consequently, it is only appropriate that I accord (Page 27)
less weight to her evidence, where it touches on the issues in this action, than the evidence of persons who were called as witnesses and had their evidence tested by cross-examination. I have done so.
Evidence of George Alexander Jelinek 143 Professor Jelinek was called to give evidence for the defendant and gave evidence to the following effect. 144 Professor Jelinek was and is a professor of emergency medicine working at Sir Charles Gairdner Hospital in Nedlands. 145 Professor Jelinek graduated from the University of Western Australia with a bachelor of medicine and surgery in 1979 and has since worked in the area of emergency medicine. It is evident from his curriculum vitae (exhibit D12) that he has considerable relevant experience in his area of expertise. 146 In the course of his work, Professor Jelinek has seen a large number of patients who have deliberately harmed themselves. In addition to his clinical experience, he has written and edited written material and spoken on the subject. 147 In the course of his work, Professor Jelinek has also had much experience with soft tissue injuries, including injuries to tendons. Consequently, he has a working knowledge of how they are damaged and the sorts of stresses required to damage them. He has experience of individuals who have harmed themselves and, in doing so, have lacerated deeper structures, including tendons. 148 Professor Jelinek was called to give evidence about what was required to sever a tendon, particularly the force and sharpness of the instrument required, and to give evidence about self-harming behaviour. His expertise was challenged, but I ruled, having heard evidence from him on his expertise, that he was qualified to give evidence in respect of both matters. 149 Professor Jelinek's undated curriculum vitae (exhibit D12) was tendered. Professor Jelinek also prepared a report dated 1 February 2005, which was also tendered as part of exhibit D14. 150 In his report dated 1 February 2005, Professor Jelinek expressed the view that the likelihood of the plaintiff's injury being self-inflicted was higher than for someone else, given what Professor Jelinek described as the plaintiff's long-standing established pattern of self-harming behaviour. (Page 28)
151 In the same report, Professor Jelinek noted that his examination of the mural revealed that many of the edges of the broken glass were filed down, but that there remained the occasional relatively sharper edge. He noted these were few in number. He also noted that finger tendons were very strong structures, which would normally require a very significant force to rupture them or a sharp instrument to divide them. While theoretically possible, he considered it would be very difficult to divide an extensor tendon with the force generated by the plaintiff turning over and hitting the back of her hand against the mural, even on one of the sharper edged pieces of broken glass. He observed that none of these edges approached the sharpness of a knife. 152 Before giving his evidence, Professor Jelinek had examined the Royal Perth Hospital and the Southern Clinic notes on the plaintiff and the mural. He was also familiar with the plaintiff's description of how she suffered her injury. On those bases, he expressed the opinion that, given the lack of any very sharp edges on the broken glass on the mural, considerably more force would need to be exerted at the point of contact for the plaintiff to sustain the injury she did. He considered it highly unlikely that the movement described by the plaintiff would generate enough force to divide an extensor tendon. He considered the force required would be really quite significant and he would have expected some other damage, perhaps to the mural, or it being knocked off the wall, or something of that nature, as well as further damage to the plaintiff's hand. 153 In those circumstances, including the background of the plaintiff's self-harming behaviour, he considered that there was a very real possibility that the plaintiff's injury was self-inflicted. He based this on the plaintiff's background of self-harming behaviour over a long period, similar behaviour occurring close to the event, the mechanism of injury being unlikely to generate sufficient force, the scarcity of sharp edges on his examination of the mural and the low probability that they would be sharp enough, in any event, to divide an extensor tendon. 154 Professor Jelinek commenced his evidence on 15 March 2005. He was unable to complete his evidence on that day, because objection was taken by the plaintiff to the tender of his report. The objection was taken on the basis that some of Professor Jelinek's opinions depended on his examination of certain medical records of the plaintiff, which had not been identified with sufficient precision in the report or in the evidence of Professor Jelinek up to that point in time to allow those basal facts to be proven. Not knowing what those basal facts were, the plaintiff was also in (Page 29)
the position of not being able to properly cross-examine Professor Jelinek. As a result, it was determined that Professor Jelinek would identify those parts of the plaintiff's medical records on which he relied in reaching his opinions and would be re-called at a later date, so that his report, the medical records relied on and his annotations relevant to those records could be tendered and so that he could then be cross-examined by counsel for the plaintiff on his opinions. 155 Professor Jelinek was recalled on 3 August 2005, when his evidence was completed. 156 On 3 August 2005, the defendant tendered a lever arch file containing the transcript of an e-mail from the defendant's solicitors to Professor Jelinek dated 13 January 2005, a letter from the defendant's solicitors to Professor Jelinek dated 19 January 2005, a letter from the defendant's solicitors to Professor Jelinek dated 20 January 2005, Professor Jelinek's report dated 1 February 2005, a letter from the defendant’s solicitors to Professor Jelinek dated 21 March 2005, a letter from Professor Jelinek to the defendant's solicitors dated 5 April 2005, Professor Jelinek's annotations related to notes appended to documents from the defendant's solicitors dated 4 April 2005 and an indexed set of copied documents from the Royal Perth Hospital notes with highlighting and numbered tabs corresponding to the note numbers in the annotations dated 4 April 2005. Professor Jelinek's annotations were notes made by Professor Jelinek following his examination of the records from Royal Perth Hospital. The documents were received as exhibit D14. 157 In note seven of his annotations dated 4 April 2005, Professor Jelinek noted that the amount of force required to sever the tendon (on 6 June 2001) would likely result in other injuries as well as the laceration, possibly including a fracture. 158 I have only had regard to those parts of the Royal Perth Hospital notes which are identified in the annotations and the subject of some highlighting with a highlighter pen as being the basal facts on which the opinions expressed in the annotations, report and oral evidence of Professor Jelinek were founded. In doing so, I have made allowances for the self-evident incompleteness and short-hand nature of many of those notes and the need for Professor Jelinek to interpret them in a particular way before relying on them as the bases for his opinions. (Page 30)
159 In the course of cross-examination on his expertise, Professor Jelinek conceded that the mere examination of a laceration would not allow the examiner to determine whether or not it was self-inflicted. 160 In the same part of his cross-examination, Professor Jelinek was asked if there were any studies on the amount of force required to sever a tendon. He stated that he would not be surprised if there was one, but he had never seen one. 161 In re-examination on his expertise, Professor Jelinek noted that tendons are extremely sturdy structures, requiring a significant amount of force to damage them. His opinion about the amount of force and the sharpness of an instrument required to sever a tendon was based on his clinical experience in treating tendon injuries caused by a variety of circumstances. He expressed the view that both the flexor and extensor tendons in the hand are extremely strong structures, because they are subjected to continual movement and load-bearing. He considered it would take something very sharp to sever such a tendon. 162 In his evidence-in-chief, Professor Jelinek made it clear that he did not see alcohol consumption, nor the location of the injury as necessarily being part of the plaintiff's pattern of self-harming behaviour. 163 In cross-examination, Professor Jelinek conceded that, even after his review of the Royal Perth Hospital notes, the plaintiff's injury could have been accidental. He also confirmed that he had not interviewed the plaintiff. 164 Professor Jelinek was cross-examined on his annotations. In the course of that cross-examination, he properly conceded that some of the Royal Perth Hospital notes were short-hand and some were incomplete. It is obvious from reading his answers in cross-examination that Professor Jelinek was relying on his interpretations of some of the notes in the Royal Perth Hospital records to arrive at the facts on which he based his opinions. 165 Professor Jelinek also conceded, in cross-examination, that if the way in which the plaintiff says she lacerated the back of her right hand was corroborated, it would seem likely that the injury was suffered in that way. As Professor Jelinek put it: "Thinking it through logically, if someone had seen the hand with no cut on it immediately prior to hitting the glass on the mural then seen it immediately afterwards, then it would seem very likely that it happened that way." (T421) (Page 31)
166 Professor Jelinek also conceded that it would be unlikely that the plaintiff would have intended to deliberately lacerate her hand in the way that she described if there was someone standing alongside her. Until that point in his evidence, Professor Jelinek was not aware that there was someone standing alongside her at the time. Having been told of that, he went on to say that it would be less likely to be an act of deliberate self-harm, particularly if there was no evidence of a prior cut (T421-423). 167 Professor Jelinek did not accept Mr Crocker's opinion that it is relatively easy to cut through tendons with a sharp edge. He differentiated between his experience and that of Mr Crocker on the basis that Mr Crocker would more than likely have seen people who had lacerated tendons, whereas he has seen many tendons which had not been lacerated, despite the application of quite a bit of force. However, he did accept that it would be part of Mr Crocker's work to divide an extensor tendon and he accepted that it is not difficult to cut through an extensor tendon with a surgical scalpel, although he did go on to say it was not easy to do so. 168 Professor Jelinek was then referred to Dr Quo's report and, in particular, Dr Quo's reasons for concluding that the plaintiff's injury was not an act of deliberate self-harm. Professor Jelinek was asked whether his review of the medical records from Royal Perth Hospital demonstrated that many of the circumstances described by Dr Quo as typifying the plaintiff's episodes of self-harm were recorded. He agreed that many of them would appear to have been, but added that it would have been more helpful if he could have interviewed the plaintiff at the time of the episodes of self-harm. He accepted that one reason why the plaintiff might have been anxious after the operation on 7 June 2001 was because she could not begin the work she was supposed to be doing. 169 Professor Jelinek also conceded that if the plaintiff had knocked her hand when turning over on the treatment table on 6 June 2001, had no cut on it beforehand, had a cut on it after knocking her hand and was then taken immediately to Dr Newfield's surgery where a provisional diagnosis of a severed tendon was made and then immediately sent to Royal Perth Hospital where that diagnosis was confirmed, that injury could have been sustained in the way described by the plaintiff. He still harboured some reservations about whether sufficient force was involved. However, he accepted that if it was a fact that there was no cut to the back of her hand before she turned over on the treatment table, there was a cut to it immediately after it and the medical evidence was that there was a (Page 32)
severed tendon, then there was a very reasonable likelihood that there was sufficient force applied by the mechanism of injury for the tendon to have been severed in that way (T426).
Breach of duty of care and causation 170 The defendant, by its employees, determined the location of the mural and the treatment table in the beauty room. The treatment table was in close proximity to the mural. The proximity of one to the other was something that was determined by the defendant. It was something on which the plaintiff had no real say. 171 A sharp edge on one or more of the pieces of broken glass on the mural would constitute a danger. Sufficient contact with such an edge, if sharp enough and done with sufficient force, could inflict an injury. 172 The defendant, by its employees, either knew or should have known that persons such as the plaintiff, receiving leg waxing treatment on the treatment table in the beauty room would likely be required to turn over in the process of receiving such treatment. As counsel for the plaintiff rightly pointed out, there was no prescribed method of turning over on the treatment table. The proximity of the mural to the treatment table meant, in effect, that a person turning over on that treatment table may very well bring a part of his or her body into contact with an edge on one or more of the broken pieces of glass on the mural and thereby suffer an injury. That risk of injury was real, not fanciful. 173 Moreover, the risk of injury created by having the mural in close proximity to the treatment table could very easily have been addressed. It would have been a simple matter to have removed the mural from that wall and put it on another wall in the beauty room, where such contact was not likely to occur. Alternatively, it could have been altogether removed from the beauty room. It was also open to the defendant's employees to warn persons such as the plaintiff, who were required to turn over on the treatment table, to be careful not to make contact with the mural. There are many other ways in which reasonable precautions could have been taken by the defendant's employees to ensure that the risk of injury was minimised or avoided. It would not be fruitful to explore each and every one of them. The point is that there were many ways in which the defendant could have taken reasonable precautions to avoid or minimise the risk of injury which was present in the beauty room on 6 June 2001. The simple fact of the matter is it did not take any such steps. (Page 33)
174 The plaintiff's case is that she lacerated the back of her right hand and completely severed her extensor digitorum communis tendon when she struck the back of her right hand against a sharpened edge on one or more of the pieces of broken glass on the mural in the beauty room when turning over on the treatment table on 6 June 2001. 175 The defendant contends that the plaintiff's injury was not, and could not have been, caused in this way, because it is unlikely that the back of her right hand would have made contact in the way alleged, there were no sufficiently sharp edges on the pieces of broken glass on the mural to have caused such an injury and there would have been insufficient force generated by the movement of her right arm and hand to have caused such an injury. The defendant also maintains that if the plaintiff's injury was sustained in the manner alleged by her, it was deliberate and not accidental. 176 Having carefully considered all of the evidence, I am satisfied that the plaintiff's injury was caused in the manner alleged by her. I am satisfied that the back of her right hand did come into contact with a sharp edge on one or more of the pieces of broken glass on the mural, was lacerated and that her extensor digitorum communis tendon was completely severed by the contact. I am satisfied that the back of her right hand struck that part of the mural with sufficient force to have caused those injuries. I am not satisfied that the plaintiff's injury was deliberately self-inflicted. I conclude that it was accidental. I find accordingly and do so for the following reasons. 177 All of the evidence is consistent with the proposition that the plaintiff had no injury to the back of her right hand, when she entered the premises to have her legs waxed on 6 June 2001. There is no evidence to the contrary. The first time anyone noticed a wound to the back of her right hand was immediately after she had turned over on the treatment table, in the way she described in her evidence, and felt a bruising sensation on the back of her right hand. It was immediately after she experienced the bruising sensation that she noticed the laceration to the back of her right hand. The fact of an injury to the back of her right hand, which penetrated the skin and caused some bleeding, was corroborated by the evidence of Ms Hajigabriel and Ms Selman. The immediacy of an injury to the back of her right hand was corroborated by Ms Franco. 178 To the extent that it is necessary to state a cautionary note, it should be noted that neither Ms Hajigabriel nor Ms Selman had any medical qualifications. It did not emerge from their evidence that they had any (Page 34)
relevant medical experience. Consequently, their expressions of opinion about the severity of the wound which they observed on 6 June 2001 must be seen against that lack of qualification and I, therefore, place little reliance on those observations in assessing the nature and extent of the plaintiff's injury. 179 Having regard to the plaintiff's evidence about the movement of her right arm and hand when turning over on the treatment table, the immediate sensation of bruising and the lack of anything else on the mural wall which would have been sharp enough to lacerate the back of her hand and sever her tendon, the inference that it was caused by a sharp edge on one or more of the broken pieces of glass on the mural is an irresistible inference. In the circumstances, there is no other inference which it would be reasonable for me to draw. 180 The wound to the back of the plaintiff's right hand was immediately attended to by employees of the defendant. A towel was wrapped around the plaintiff's right hand, when a band aid could not be found for it. The plaintiff was then taken almost immediately to a nearby doctor for medical treatment. Notably, and in my view quite properly, the defendant did not contend that the plaintiff had interfered with any wound, suffered by the back of her right hand striking the mural, from the time when the wound was noticed on the back of her hand and her attendance at Dr Newfield's surgery. The defendant merely contends, as I have earlier noted, that the plaintiff's injury was deliberately self-inflicted, rather than accidental. In other words, if the injury was sustained in the manner alleged by the plaintiff, it was deliberately self-inflicted. 181 On examining the wound, Dr Newfield was concerned that the plaintiff had severed a tendon in her right hand and referred her to Royal Perth Hospital for further assessment and treatment. 182 On arrival at Royal Perth Hospital, the plaintiff was examined by Dr Booth. He concluded that the extensor digitorum communis tendon in her right hand was completely divided and would require repair. The surgery to repair the tendon and suture the laceration on the back of her right hand occurred the following day. 183 When proper regard is had to the evidence about the initial observations of the wound, when they occurred, the subsequent sequence of events and the confirmation of the provisional diagnosis made by Dr Newfield, it seems highly likely that the plaintiff's injury was caused in (Page 35)
the manner alleged by her. There does not appear to be any plausible and alternative explanation. 184 I have also carefully considered the defendant's allegation that the plaintiff's injury was self-inflicted. In doing so, I have considered all of the evidence relevant to that allegation. In doing so, I have relied on the defendant's confinement of the allegation to the mechanism alleged by the plaintiff. The difference being that the defendant contends that the plaintiff's injury was deliberate, whereas the plaintiff contends it was accidental. Having considered the evidence, I have concluded that the plaintiff's injury was not deliberately self-inflicted, but was accidental. I have come to this conclusion for the following reasons. 185 The defendant's contention that the plaintiff's injury was deliberately self-inflicted requires me to consider whether or not the plaintiff's injury was another incident of self-harming behaviour in what the defendant has described as a pattern of deliberate self-harming behaviour. 186 The defendant maintained throughout the trial and led evidence to demonstrate that the plaintiff had prior to and after the date of the plaintiff's injury engaged in behaviour in which she had deliberately injured herself. As already noted, to that end the plaintiff was cross-examined at length on medical records which had been subpoenaed by the defendant to prove a pattern of deliberate self-harming behaviour. The evidence of Professor Jelinek was, as I have also already observed, led to prove this contention. 187 The subpoenaed medical records, the evidence of Professor Jelinek, the evidence of the plaintiff and that of Dr Quo all demonstrate that the plaintiff had both prior to and after her injury on 6 June 2001 deliberately injured herself on a number of occasions. The plaintiff, to her credit, did not deny many of these incidents when giving her evidence. 188 Professor Jelinek's evidence must be carefully assessed. As previously indicated, he had not spoken to the plaintiff about the incidents in which she had injured herself. He was heavily reliant on information acquired from other sources. He placed some reliance on his examination of the subpoenaed medical records, particularly those obtained from Royal Perth Hospital. The medical records, particularly those from Royal Perth Hospital, have some limitations. First, it is apparent from a review of the evidence of Professor Jelinek, and so much of those records as constituted evidence in these proceedings, that many of the records were written in a short-hand or abbreviated format. Many were also |