Kelly v Logan & District Services Club Inc - [1998] QSC 191

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.663 of 1995
Before the Hon. Mr Justice Shepherdson
[Kelly v. Logan & District Services Club Inc.]
BETWEEN:
  LEANNE KELLY
  Plaintiff
AND:
  LOGAN & DISTRICT SERVICES CLUB INC.
  Defendant
JUDGMENT - SHEPHERDSON J.

Judgment delivered 23 September 1998
CATCHWORDS: TORT - personal injuries - master/servant - the plaintiff claimed damages for negligence and/or breach of statutory duty of the defendant - injuries were allegedly sustained on two occasions: (1) lifting bags of coins from floor level onto a bench for the purpose of counting the money, and (2) falling down external steps on the defendant’s premises - whether plaintiff discharged on each occasion burden of proving injuries sustained on the occasion alleged and whether she proved negligence on either occasion.

Counsel:Mr M.E. Eliadis for the plaintiff
Mr L.A. Stephens for the defendant

Solicitors:Bennett Carroll & Gibbons for the plaintiff
Bradley & Co for the defendant

Hearing Dates: 2 March - 6 March 1998
14 July - 20 July 1998
JUDGMENT - SHEPHERDSON J.
Judgment delivered 23 September 1998

The plaintiff in this action has claimed damages for personal injuries allegedly suffered in two separate incidents while she was employed by and working for the defendant.
The first was on or about 20 March 1992 when she says she was employed as a bar and administration employee, and the second on 30 July 1993 at which time she alleges she was the defendant’s marketing manager.
Each incident is alleged to have occurred on the defendant’s premises at 42-46 Blackwood Road, Woodridge. Both claims are based on alleged negligence and breach of statutory duty. In each claim liability and quantum of the plaintiff’s damages are in issue.
First Incident - 20 March 1992
The following matters are as I find them on the evidence and are not in issue. The plaintiff was born on 20 April 1957 (T62). In 1974 she married (T.63). She bore 4 children and in 1990 she and her husband divorced (T43).
When plaintiff first left school she was a receptionist/girl Friday for a repossession agent and later for a real estate agent (T63).
In 1977 and 1978 between the births of her first two children she was a casual waitress at a restaurant in Surfers Paradise (T63). In 1978 she and her family moved to Beenleigh to assist in the running of the Gem Hotel at Alberton then owned by her husband’s parents. She worked part-time in that hotel doing bar work, kitchen work and organizing functions (T64). In 1983 she began studying with a view to passing the senior examination. She attended night school at Beenleigh State High School. In 1984 she and her family moved to Harrisville where her husband’s family had bought an hotel. She was involved in working in that hotel. When she moved to Harrisville her youngest child was then 2 years old (T65).
In 1987 she moved back to Beenleigh and looked for and found employment at the Loganholme Tavern where she worked as a casual employee for several years.
While the plaintiff was working at the Loganholme Tavern, Pamela Elaine Shelton, who was employed by the defendant, approached the plaintiff and asked her if she would consider working for the defendant. I am satisfied that at that time Mrs Shelton and the plaintiff had known each other through playing netball with and against each other and that at that time Mrs Shelton was secretary of the defendant.
In February 1992 the plaintiff began working for the defendant as a bar and administration employee. On 1 November 1992 she became marketing manager of the defendant (T66/60) at a salary of $35,000 per annum.
As can be seen it was within about a month after the plaintiff commenced work for the defendant that she says she was injured in the incident on 20 March 1992.
I have at this stage set out something of the plaintiff’s work history and work experience prior to the 20 March 1992.
The plaintiff’s case is that on 20 March 1992, she hurt her back while counting money collected from the defendant’s poker machines. On her case the counting process involved her in lifting bags of coins from floor level onto a bench on which was an electronically operated coin counting machine. She said the bags she was to lift were next to her and to her right on the floor. She did not give me any estimate of the distance the bags were from her other than to say they were “next to her”.
The plaintiff told me that she lifted these bags while she was sitting on a chair positioned in front of the bench on which the counting machine sat and that as she was bending down lifting one bag of coins she experienced a sharp pain in her back (T95 and T100). She said this pain was over her right buttock and lower than her belt line. She said she felt the pain when the bag of coins being lifted was possibly 12 inches from floor level. She also said she thought the bag contained coins to the value of about $350.
The plaintiff was uncertain whether she lifted the bag using one hand or both hands. She told me that prior to this lift in which she felt pain, she had on that day previously lifted and placed four or five bags of coins on the bench to the right of the counting machine.
The above is a short description of the plaintiff’s case in respect of this first incident.
The defence does not accept that the plaintiff was injured in the manner she has described and asked me to reject her evidence on this aspect. It says for a number of reasons, to which I shall later refer, that the plaintiff’s credit is such that I should not accept her as a witness of truth when describing the circumstances in which she says her back was injured on 20 March 1992.
The defendant relies in part on the evidence of Pamela Elaine Shelton, who is now the general manager of the defendant. I am satisfied that in early 1992 the defendant introduced poker machines to its club premises at Woodridge. I find that at that time Mrs Shelton was senior manager of the defendant having started with the defendant as administration manager in June 1990 (T622).
Mrs Shelton told me that the plaintiff was first involved in coin counting before the 20 March 1992, and that it was she who gave the plaintiff instructions as to the manner in which the coin counting was to be performed and the procedure to be followed when coin counting. I accept her evidence that she gave these instructions in the strong room of the defendant’s Woodridge premises. Before I go to these instructions I note that there was no dispute between the parties on the following matters:-
(a)that each night coins were taken from the 5 cent, 10 cent and 20 cent poker machines of the defendant;
(b)that the coins taken from each machine were placed in calico bag or bags - there might be more than one bag from a particular machine - this depended on the number of coins in the machine;
(c)that each bag taken from each machine was numbered so that the numbered bags taken from a particular machine could be readily identified as coming from that machine;
(d)that each bag was fastened and sealed;
(e)that all the bags containing the coins were placed on a trolley - not in any order but in a heap;
(f)that the trolley loaded with the bags of coins was each night wheeled into and left against a wall of the strong room where it remained until next morning for counting;
(g)that the bench to which the bags of coins were to be lifted was close to the parked trolley;
(h)that the trolley, a photograph of which is Exhibit 36 had only one tray and this was 310 mm above floor level - it was a “platform trolley”;
(i)that the bench on which the counting machine sat was 700 mm high;
(j)that the counting machine was 425 mm high;
(k)that the top of the counting machine was 1125 mm above floor level;
(l) that when a bag of coins had been lifted to and placed on the bench its seal was cut so that the mouth was effectively open and at an appropriate time the coins could be poured into the counting machine;
(m)that each seal had a security number which was recorded in a book and the seal was then destroyed;
(n)that the coins from each poker machine were counted and the total value of those coins ascertained and that value had to tally with a reading on that particular poker machine;
(o)that the bags containing money from each poker machine were counted sequentially so that the amount of that machine’s moneys could be calculated before moving on to count the next machine’s coins.
I mention these various matters which as I say, were not in issue in order to give some background to the findings which I shall make concerning the lifting incident.
Mrs Shelton told me that on one occasion only she demonstrated to the plaintiff the manner in which she was to handle the coins in the bags, that she gave no verbal instruction concerning the method of handling (T664) and that she expected the plaintiff to imitate what she had shown her (T662).
Mrs Shelton said that during her demonstration to the plaintiff, she, Mrs Shelton, stood and lifted onto the bench bags of coins from the trolley beside the wall; that she had told the plaintiff that she was to search the bags on the trolley to get all the bags for each machine (if there were more than one) and all bags for each denomination of coins. Mrs Shelton told me that she demonstrated cutting off the seal while the bags were on the bench and entering the numbers of the security seals into a register, and that she demonstrated the manner of then lifting each bag of coins and emptying the coins into the top of the counting machine. I am satisfied that when demonstrating this manoeuvre, Mrs Shelton stood and held each bag in two hands, one hand holding together and effectively closing the top of the bag (which was by then unsealed) and the other hand under the bottom of the bag so that the bag and the coins within remained stable. I am satisfied that when the bag was lifted high enough the mouth of the bag was allowed to open so that the coins could fall into the counting machine, and one hand retained hold of a tab or flap attached to and forming part of the bottom of the bag so that the open bag could be held over the top of the counting machine until all coins had fallen from the bag. A specimen of bag showing the tab attached is Exhibit 37.
I am satisfied that when Mrs Shelton demonstrated this procedure to the plaintiff, Mrs Shelton at all times stood, that she at no time removed bags of coins from the trolley and placed them on the floor and that during the demonstration she said to the plaintiff “they are heavy” and, as she said, left it to the plaintiff “to do it which ever way was more comfortable for her”. (T634). I am satisfied that the system of physically handling the bags of coins while counting and which was demonstrated by Mrs Shelton to the plaintiff was one which had earlier been developed by Mrs Shelton and a fellow manager named Ken Mackay. (T624)
It will be apparent from the evidence of the plaintiff and Mrs Shelton which I have recounted, that Mrs Shelton did not demonstrate to the plaintiff that she could, from a sitting position handle the bags of coins and unload the bags into the top of the counting machine.
Although the plaintiff did say during her evidence that she stood at some stage (which stage was never identified) during the money counting on 20 March, the most important aspect of her evidence (apart from the date 20 March) is that she claims to have injured herself while seated and lifting a bag of coins from the floor next to her. I find that this method of performing the task was not demonstrated by Mrs Shelton to the plaintiff.
As to the case based in negligence I mention the principles applicable. I refer to the following decisions of the High Court of Australia.
In Raimondo v State of South Australia (1978) 23 ALR 513 at p.518 Mason J (as he then was) said:-
“... the employer will not be liable unless it appears that he has failed to take measures, or adopt means, which were reasonably open to him and which would have eliminated or significantly reduced the element of danger (Neill v NSW Fresh Food and Ice Pty Ltd (1963) ALR 258; 108 CLR 362 at 369; Vozza v Tooth & Co Ltd (1965) ALR 169; 112 CLR 316 at 319). And it has been held that (a) the degree of risk of an accident occurring; the degree of injury likely to result from such an accident; and (c) the nature and extent of the remedial action suggested to be taken are all elements to be considered in deciding whether the employer is in breach of a duty to take reasonable care Morris v West Hartlepool Steam Navigation Co Ltd (1956) AC 552 at 579; (1956) 1 All ER 385; Foufoulas v Strang Pty Ltd (1970) 123 CLR at 172).”
In Turner v State of South Australia (1982) 42 ALR 669 at p.671 Gibbs CJ said:-
“The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. ‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment’: Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319. When the employer does unreasonably fail to take a precaution against danger the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Limited (1973) 1 ALR 125; 47 ALJR 410 at 416-7, 419.”
The plaintiff’s case is that the risk of injury suffered by the plaintiff was reasonably foreseeable. As to foreseeability, in addition to the above quoted dictum from Raimondo v State of South Australia (supra) the same learned judge in The Council of the Shire of Wyong v Shirt & Others (1980) 146 CLR 40 at pp.47 and 48; 54 ALJR 283 at pp.285-6) said:-
“... when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in ‘the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
The plaintiff bears the onus of proving what injuries she has received as the result of a defendant’s alleged tort, the extent of those injuries and their duration (Edward v Hourigan & Others (1968) Qd.R 202).
The plaintiff gives the only evidence as to the circumstances in which she says she felt back pain while lifting and as to the fact of back pain while lifting on 20 March 1992.
Mr Stephens, counsel for the defendant has asked me to reject her evidence on these important matters and he does so for a number of reasons which I now set out - not in order of importance.
A. The plaintiff told me in evidence that after she felt back pain she completed her money counting task, and after that had been done she “commented” to Mrs Shelton and to Ken Mackay that she had strained her back. (T98) She said that at the time Mrs Shelton and Mackay were in an office adjoining the strong room, and that at the time she (the plaintiff) was leaning against a door jamb stretching her back against the jamb. She said this door jamb was in the doorway to the strong room leading to the office in which Mrs Shelton and Mackay were. According to her, Mackay said “are you all right?” and she replied “I hurt my back while lifting the money”. She deposed to a further conversation in which she told me Mackay said he would in future endeavour to lift the heavier bags for her. Mrs Shelton told me that no complaints were made to her as to injury and “there was no injury reported to me, if there was one”. (T643)
The coin counting sheets which are in evidence show that the plaintiff continued her coin counting duties for some time after 20 March 1992.
I should now say that Mackay did not give evidence although initially Mr Eliadis, counsel for the plaintiff opened him as a witness for the plaintiff. In the course of his opening, plaintiff’s counsel said that Mackay would say that in 1992 he was employed as a bar manager of the club, that he recalled that it was one of the plaintiff’s duties each morning to count money which had been collected from poker machines, that on each morning bags of money were positioned on a low trolley in a walk-in strong room, that it was the plaintiff’s duty to feed these bags into a money counting machine and that the bags were very heavy at the time. Counsel went on to say in reference to Mackay, that he would say there were 5, 10 and 20 cent coins, and that one morning the plaintiff after apparently performing this work mentioned to him that she had hurt her back while counting the money. He went on to refer to evidence from Mackay as to the bags being very heavy, and that he would say that he recalls telling the plaintiff that in future he would try and assist her with lifting these bags of coins if he were able to, and that after this incident the plaintiff often asked him for help in lifting the bags.
On 14 July 1998 Mr Eliadis told me that he had explained to Mr Stephens that he did not intend to call Mr Mackay and asked whether Mr Stephens required him for cross-examination. It appears and I am satisfied that agreement was reached between counsel that as long as the plaintiff withdrew the opening of Mackay’s evidence, Mr Stephens would not require Mackay to give evidence or be made available for cross-examination, and it was on that basis that plaintiff’s counsel told me that Mackay would not be called to give evidence. I add that Mackay was not called by the defence on the matter of complaint by the plaintiff of having hurt her back. There is then a dispute between plaintiff and Mrs Shelton as to whether plaintiff did complain that she hurt her back and as between the plaintiff’s and Mrs Shelton’s evidence on this matter, I prefer Mrs Shelton. My reasons for this preference will shortly appear.

B. Mr Stephens relies on the medical evidence and more particularly the evidence of Dr Martin. In her evidence the plaintiff told me that the first injury occurred on 20 March 1992 and that probably about 4 days later she sought medical treatment from Dr Martin for her back pain. She said she went to see Dr Martin for other problems and while there mentioned she had a sore back, but did not tell him about the circumstances in which she suffered this sore back. (T101) She went on to tell me she did not take any time off work because of the sore back, and did not make any claim for compensation in respect of the back but that Dr Martin did offer treatment for her back pain by suggesting she take some anti-inflammatory tablets. She told me Dr Martin gave her a prescription, that she did purchase the anti-inflammatory tablets and took them for a short time but they made her feel sick. She told me she continued to experience pain and that it seemed to settle down after probably 3 months or so. She told me she had returned to see Dr Martin for her back. She spoke of one occasion when she went to see him when her back was still sore at night and that she had an X-ray taken of her back at that stage. (T103) She said the X-ray was taken at Dr Martin’s suggestion and was after her first visit to him. She told me she saw him after the X-rays had been taken and that he suggested a back exercise programme and panadol when necessary. She said she accepted his advice and underwent the back exercise programme. She told me that “As the pain subsided the exercises eased right off.”
Dr Martin gave oral evidence. He practised and still practises in partnership with Drs Geoff Madden and Robyn Madden at Beenleigh. When giving oral evidence he had before him the plaintiff’s history or progress notes (Exhibit 93) which had been made by Drs. Martin and G. Madden. Dr Martin also gave to the plaintiff’s solicitors a written report dated 5 May 1995 (Exhibit 1). This report was his response to the solicitor’s letter dated 10 March 1995 (Exhibit 94) in which they said (inter alia):-
“Our client is considering taking legal action for injuries sustained by her at work on 18 April 1992 and 30 July 1993. We understand that you provided treatment to our client in relation to a lower back injury sustained by her on 18 April 1992.”
Certain information was then sought.
In Exhibit 1, Dr Martin said that he had no record in his notes that Leanne Gaye Kelly had sustained an injury at work on 18 April 1992. He mentioned later in Exhibit 1 that he had had a previous consultation with her on 24 March 1992 when he had commenced her on a course of non-steroidal anti-inflammatory drugs.
To put these matters into the context of his letter Exhibit 1, I set out the first 3 paragraphs of that letter:-
“Re: Leanne Gaye KELLY (D.O.B. 20.4.57)
This lady was seen by me on 22nd April, 1992, when she complained that her spine was “killing her all the time”. She said that the pain was such that it would wake her when she rolled over in bed. She also noted that the pain was worse in the morning and that she felt stiff whenn (sic) she woke up. She also had noted that she was unable to stand on one leg. However, she did not complain of any radiation of pain to her lower limbs. I have no record in my notes that she sustained an injury at work on 18th April, 1992.
On examination, I found her to be tender over her sacrum but found her lumbar spine to be non-tender. Her straight leg raising was normal and equal and I found her spinal movements to be full and normal. At this time I was uncertain of the diagnosis and requested her to have a plain x-ray of her lumbo-sacral spine.
The x-rays performed indicated that there were possible disc lesions at the L4-5 and L5-S1 disc levels. These levels are slightly higher than where she was tender when she was examined on the previous day. However, I felt that the most likely explanation for her pain was discogenic in origin. I asked her to continue with a course of non-steroidal anti-inflammatory drugs which I had commenced on this lady at the previous consultation of 24th March, 1992. I also requested that she engage in a home back exercise programme. I believe I would have given her a printed sheet of instructions regarding these exercises.”
Before I turn to Dr Martin’s oral evidence before me, I must say that the plaintiff’s instructions to her solicitors as to an injury at work on 18 April 1992 appear not to have been correct, and that it is true to say that when the original statement of claim in this action was delivered on 18 April 1995, the plaintiff persisted with an allegation that while lifting bags of coins in the course of her employment on 18 April 1992 she suffered a back strain. This allegation was later amended from “on 18 April 1992" to “on or about 20 March 1992". Dr Martin’s letter (Exhibit 1) was dated 5 May 1995.
Dr Martin in his oral evidence was questioned concerning the following statement in the solicitors letter Exhibit 94:-
“We understand that you provided treatment to our client in relation to a lower back injury sustained by her on 18 April 1992.” (T492)
The plaintiff’s counsel asked Dr Martin:-
“If you just pause there then, given that statement made by the solicitors, did that have anything to do with you making the statement that you made in Exhibit 1?”
Dr Martin replied:-
“Well, I was making the point in that letter that all I have in my notes is that she complained to me of pain in her left lower back, but I have no written record that that happened at work. That’s what I was trying to say.” (492/20)
I accept Dr Martin’s evidence that the plaintiff did see him on 24 March 1992 and complained of back pain telling Dr Martin that she had pain in her left lower back. While in the witness-box Dr Martin indicated on his body that the relevant area was just above the left buttock and below the belt line. He agreed with the defendant’s counsel that the first time that he had seen the plaintiff in respect of back pain was on 24 March 1992. He was asked to look at his notes (Exhibit 93) and tell the court what she presented with and what diagnosis he made and what treatment he prescribed. He replied:-
“On that day, well, what I have got in my notes is that she said that she had pain in the left lower back, she came in for another matter which was obviously discussed. I found her to be tender over her left gluteal region. I thought she may have been suffering from a bursitis and prescribed her Orudis ... .” (T503)
He went on to refer to his notes and he agreed that a particular sign on the notes meant that he had made an examination and he had noted “tender left gluteal region”. He went on to explain what a bursa was saying:-
“A bursa is a small sac which sits between bone and muscle and, in particular, usually tendon to stop the tendon from rubbing against the bone and becoming inflamed, so that the bursa sits there and if it’s irritated then it becomes inflamed like a boil and becomes quite painful.” (T505)
He agreed that he had diagnosed bursitis on her left side. (T505)
Later in his cross-examination he was questioned concerning his consultation with the plaintiff on 22 April 1992. I shall mention this in slightly more detail shortly, but in the course of his cross-examination he said (T506-507):-
“I think that, just reading my notes, there’s a difference in what I thought was going on on this occasion; that is, she was tender in the left gluteal origin previously and this time she’s not. I specifically checked her L5/S1 disc and it wasn’t sore, so I was somewhat confused as to what was going on, so I wasn’t certain as to what her diagnosis was.”
He was then asked:-
“Q.In other words, she presented with another lot of symptoms in relation to her spine which were different from those which she had presented with on 24/3/1992?” (T507)
He answered:-
“She still presented with pain in her spine. People are often relatively non-specific as to - that is, they don’t localise things terribly well. We would like them to, as doctors, but they often don’t.”
There then followed:-
Q.On the other hand, she certainly did present with a condition of bursitis which was specific and in a specific position?
On the previous occasion?
A.I felt that that’s what was going on - yes.”
A little later he was asked:-
“Q.The complaints that she had on 22/4/1992 were different, insofar as the pain in the region that you mentioned, on 24/3/1992?
He replied:-
Her presentation on the second time is less specific. She was just saying that her spine was killing her all the time, whereas the first time she had come in she said that it was on her left lower back.” (T507)
I thought the evidence which I have set out above important in that on the visit on 24 March 1992 the plaintiff was complaining of pain in her left lower back, whereas she told me that the pain she felt on 20 March was over her right buttock, and in the witness-box she pointed first to her right buttock and then to the middle of her back below the belt line.
I find that on 24 March 1992 Dr Martin prescribed the plaintiff a course of anti-inflammatory tablets for bursitis in the left gluteal region.
I consider Dr Martin a truthful witness who was doing his best to help the court. I find that on 24 March 1992 the plaintiff complained of pain in the left gluteal region, that on examination on that occasion Dr Martin found her to be tender in the left gluteal region and diagnosed bursitis.
I find that on 22 April 1992 when the plaintiff next saw Dr Martin she complained of pain in her spine and that there was no complaint of pain in the left gluteal region. I find that on this day Dr Martin specifically checked plaintiff’s L5S1 disc and found it was not sore.
As appears from the first 3 paragraphs of Exhibit 1 which I have set out above, the plaintiff did see Dr Martin on 22 April 1992 complaining that her spine was “killing her all the time”. The first 2 paragraphs of Exhibit 1 are based on Dr Martin’s history notes of the visit on 22 April 1992.
I find that the X-rays referred to in the third paragraph from Exhibit 1 were performed by Dr Ross probably on 23 April 1992, and that he made a report dated 23 April 1992 (see Exhibit 95). I find that on 23 April 1992, Dr Martin again saw the plaintiff who had with her the X-rays and Dr Ross’s report. I find on 23 April Dr Madden examined these X-rays and report. I accept the truth of the contents of the third paragraph of Exhibit 1. I find it more likely than not that on 23 April 1992 Dr Martin did tell the plaintiff that the X-rays showed possible disc lesions at L4-5 and L5-S1 discs, and that on the basis of the X-rays her spinal pain could be discogenic in origin.
The evidence from Dr Martin has satisfied me of the following matters:-
(a)that on 24 March 1992 the plaintiff was tender in the left gluteal region (left buttock) T506;
(b)that on 24 March 1992 the plaintiff was not sore in the L5-S1 disc region;
(c)that on 22 and 23 April 1992 the plaintiff was not sore in the left gluteal region but was sore in the L5-S1 disc region;
(d)that on 24 March 1992 Dr Martin believed the plaintiff was suffering bursitis or inflammation of a bursa in the left gluteal region, and that he then prescribed the anti-inflammatory drug Orudis.
It seems plain and I find that this plaintiff, at the time she instructed the solicitors who wrote the letter Exhibit 94, believed then that she had hurt her back while lifting at work on 18 April 1992. On her evidence before me it was about 4 days after this lifting event that she saw Dr Martin about other matters and she told him of the pain which she told me had persisted.
In my view what has happened is that, relying on the 4 day period which allegedly passed from the time of the alleged injury until she saw Dr Martin, the plaintiff saw Exhibit 1 and knowing then that she saw Dr Martin on 24 March 1992 has fastened on an event which she told me occurred about 4 days earlier as the cause of pain in her right buttock and spine. This event is the lifting incident alleged in the amended statement of claim to have occurred “on or about 20/3/1992". Unfortunately Dr Martin does not confirm that on 24 March 1992 the plaintiff complained of pain in her spine or right buttock. He says that on 24 March 1992 no mention was made of any injury having occurred at work. Dr Martin’s evidence - and it is based primarily on his contemporaneous notes - has well satisfied me that on 24 March 1992 the plaintiff was not tender over the spine but was tender in the left buttock because of the bursitis. In short, his evidence not only does not support the plaintiff’s evidence that the pain she experienced while lifting was over her right buttock but it shows the plaintiff’s present recall as to the date of the alleged lifting incident and the site of the back pain which followed that incident is incorrect.
In my view the spinal pain of which the plaintiff complained to Dr Martin on 22 April 1992 was not caused by any injury at work on or about 20 March 1992 or on 18 April 1992. I find that if the plaintiff did suffer right sided back pain on or about 20 March 1992 (and she has failed to satisfy me that she did) that was different from the pain in the left gluteal region of which she complained to Dr Martin on 24 March 1992. There is ample evidence that the plaintiff played regular competitive outdoor netball on bitumen or hard court surfaces and that in this period of time she was playing such netball. On the evidence before me, I am well satisfied that she was a vigorous and very good player engaging in physical contact with opponents. I accept the evidence of Mrs Shelton that the plaintiff was a very good player who played netball “tough”. In my view of the evidence the discal problems found on 22 and 23 April 1992 are attributable to any number of causes other than an injury at work on 20 March 1992. An incident at netball could be one such cause; bending over to tie a shoelace could be another. In short, there is no evidence to show on the balance of probabilities that the discal problems found on 22 and 23 April 1992 were causally related to any injury suffered by the plaintiff at her work place. I add that the plaintiff herself conceded that she had had falls at netball and Exhibit 57 is a video showing the sites of injuries she suffered while playing netball.
C. Mr Stephens points to various figures placed by the plaintiff on the weight of the bag of coins she says she lifted at the time when she says she hurt her back. In the original statement of claim it is alleged that the bag of coins contained $650. This claim was amended to allege the bag contained between $50 and $400.
At p.97 of the transcript she alleged that the bag which she lifted when she suffered pain contained around $350 of coin. She later agreed with Mr Stephens (T201) that the bags when sealed could probably only take about $240. The evidence of Mrs Shelton was that the bag should not take more than $250 and generally would not take more than $200 with the security seals attached.
The matters which I have just mentioned all point to uncertainty in the plaintiff’s mind as to the weight lifted at the time she claims she hurt her back.
D. Mr Stephens points to an admission by the plaintiff that she signed an incorrect statement. This submission relates to the plaintiff’s claim for workers compensation dated 30 August 1993. (Exhibit 59). (see T262). This claim for compensation was made in respect of an injury allegedly suffered in a fall on 30 July 1993 and is the subject of the plaintiff’s second claim against the defendant. In the statement dated 30 August 1993 she said. “I do play outdoor netball but have not played since the middle of June”. The plaintiff told me that in fact she played outdoor netball on 2 August 1993. She said the only explanation she could give for the error is that she did not remember the date she had played netball. She said she knew that she hadn’t played for a couple of weeks prior to 30 August 1993 and “just assumed that it was around the middle of June that I last played.” This particular piece of evidence, although referring to the second injury is in my view a good indication of the plaintiff having been prepared to make an incorrect and probably careless statement - and being unreliable.
E. Mr Stephens points to the plaintiff’s evidence as to the circumstances and manner in which she allegedly fell on 30 July 1993 while walking on a path and descending steps. He argues that I should reject her evidence in respect to that second claim and find that the fall occurred because she was reading as she walked. The plaintiff denies that she told two of the witnesses, Mrs Shelton and Maree Crawford that she was reading at the time she fell. I should also say that Mr Stephens has relied on other matters to support his argument that I reject the plaintiff’s evidence as to the circumstances and manner in which she fell.
He argues that if I reject the plaintiff’s evidence as to the circumstances and manner of the fall I can, in deciding her credibility in respect of the alleged lifting injury, use that rejection involving as it does a finding adverse to her credit.
In considering the first claim i.e. the lifting claim, I do not find it necessary to consider the plaintiff’s credit in respect of her second claim against the defendant.
I have come to the conclusion that I cannot accept the plaintiff’s evidence that on 20 March 1992 she injured her back while lifting a bag containing coins. In reaching this conclusion I have considered all the evidence touching this incident and most of the various matters on which Mr Stephens relies. I also accept Mrs Shelton’s evidence that plaintiff did not report any injury to her. I find that plaintiff did not complain to or tell Mrs Shelton and Mr Mackay that she had hurt her back while lifting money. I had the opportunity of observing the plaintiff during several hours in the witness-box and had the opportunity of observing other witnesses who gave evidence relevant to this first claim. The plaintiff has failed to discharge the onus of proving the injury she alleged occurred on or about 20 March 1992. I should say that the evidence of Dr Martin and particularly his evidence which I have earlier discussed satisfied me that the back pain of which she complained to him on 24 March 1992 was not suffered while working for the defendant and was not the pain which she described she felt when lifting on 20 March 1992, and of which she said she told Dr Martin about 4 days later.
I realise that it is over 6 years since the alleged lifting injury occurred and I have made allowance for mistaken and unreliable memories. However, I thought it note worthy that in early 1995 - nearly 3 years after the alleged lifting incident - the plaintiff believed that the lifting incident occurred on 18 April 1992. At that stage her memory of early 1992 events was probably better than it is now, yet, some time later she was prepared to change her claim that the lifting injury occurred on 18 April 1992 to “on or about 20 March 1992". The matters on which Mr Stephens relies and which I have detailed above all point to uncertainty in the plaintiff’s mind as to the date of the alleged lifting injury. I thought her unreliable as a witness and I am not satisfied on the balance of probabilities that on 20 March 1992 she suffered a back strain while lifting a bag of coins.
I therefore reject the plaintiff’s claim in respect to the injury viz a back strain allegedly suffered on or about 20 March 1992. I am not satisfied she suffered any injury at work on that day.
Although I have found against the plaintiff on this issue of liability, I should say something further concerning the manner in which the plaintiff says she lifted the bags of coins. I have not so far made any finding concerning the plaintiff lifting bags of coins from floor level to bench level. If it were necessary to do so, I would have found that she probably did lift such bags from floor level to bench level. One other witness called by the defendant was Lynette Sheree Johnstone.

I am satisfied from her evidence that in March 1992 she performed money counting duties for the defendant. I thought she was a truthful witness, and I find that there were times when she, prior to counting money in the bags, lifted bags of coins from the trolley and put them on the floor and there sorted the money bags so as to identify the coins from each relevant machine. I find also that Miss Johnstone often lifted bags from the floor to the bench. (T687)
As for the plaintiff’s claims that she performed the lifting from the floor while sitting in the chair, I am satisfied that this method of performing that task was not followed by Miss Johnstone, nor was it the one demonstrated by Mrs Shelton to the plaintiff. However, I am satisfied that when she demonstrated to the plaintiff the method of lifting and counting and expected the plaintiff to imitate her, Mrs Shelton did leave the plaintiff “to do the counting whichever way was more comfortable” for her. (T634)
The plaintiff was and is 5 foot 11 inches tall, and as I find was to Mrs Shelton’s knowledge an active and very good outdoor netball player. I infer that in March 1992 plaintiff was a physically fit and active person. I find that at that time both these women were friends, and Mrs Shelton had been instrumental in the plaintiff being employed by the defendant.
The employer had the duty of devising and instructing the employee as to the system of work. Here, on the evidence of Mrs Shelton, I am satisfied that it was open to the plaintiff to sit on a chair when lifting the bags of coins from floor to bench if that were more comfortable for her. Certainly, if the plaintiff did perform the task in this way she did not imitate what Mrs Shelton had shown her.
I am satisfied that the plaintiff was not supervised during the whole of each time she lifted and counted coins, but I am satisfied that on a number of such occasions Mrs Shelton was present during part of the coin counting procedure and that on occasions she assisted the plaintiff. I find that when Mrs Shelton was present the plaintiff did not perform any part of her coin counting procedure while seated on a chair. The coin counting procedure was a simple task.
If I were to have to decide whether or not the plaintiff was seated at the time of the lift on which she said she strained her back, I would find that on 20 March 1992 she was not at any time seated on a chair while lifting coins. Such finding would be based on my view that I could not rely on her as a credible witness. I would find that if she strained her back, as claimed, she did so while standing and lifting a bag of coins from the floor. It is not necessary for me to take this matter further because I have already found she did not suffer a back strain while lifting on 20 March 1992. Second Incident - 30 July 1993
The plaintiff’s evidence concerning this injury is that at about 9.15 a.m. on 30 July 1993, she walked from the defendant’s administration area across an area paved with terracotta tiles leading to some steps, and she intended to go down the steps and then walk towards what was called the defendant’s club building (T105).
She said that at the bottom of the steps she had to walk across what she called an easement. Photographs in evidence show the steps in question, the “easement” (which I find was an internal roadway on the defendant’s premises) and also a car park area (also on the defendant’s premises) adjoining that roadway on the side of the easement opposite the steps.
The plaintiff said:-
“As I went to engage the steps I put my right foot at the top of the steps and slipped as I was going down with my left foot.” (T107)
Also in evidence-in-chief she said she was in the middle of the steps and:-
“I put my left foot forward to step down, I lost footing I stumbled forward.” (T115)
When asked “Which footing did you lose” she replied:-
“Well my right foot slipped.” She was asked “what happened to her and she said “I stumbled down the stairs and I tried to stop myself from falling. By balancing with my arms putting my arms out for balance.” (T115)
I am satisfied that plaintiff was wearing low heeled court shoes at the time.
She said and I find that she had a number of papers in one hand and some 3 biros in the other hand, the papers being A4 work related papers. (T116)
The plaintiff told me the paved area including the steps was “hosed down with a fire hose of a morning to clean it” and, when she looked at Exhibit 2 which was a photograph, said that at the time of her fall the whole of the area was wet.
She said she had used the stairs on numerous occasions (T113).
The plaintiff said she was looking towards the right for traffic on the easement because she said it was very hard to see until she was actually at the last step. (T115)
There is no doubt that there was a wire fence which appears in the photographs and which to some extent must have obstructed vision to the right of a person approaching the top of the steps and beginning to walk down them. However, once the person reached the bottom step immediately before walking into the “easement”, I am satisfied that such a person standing on the bottom step had unimpeded vision both to left and right of any traffic that might be approaching along the easement.
The plaintiff went on to tell me in her evidence-in-chief that she ended the fall in a seated position with her right leg under her left leg and that as she was falling she yelled out. She said she experienced pain in her buttocks, lower back and legs where she had grazed them in a number of places. (T117)
The plaintiff’s evidence as to the fall was given in considerable detail, although she was unable to tell me when she felt her right foot was slipping. In cross-examination when she was asked “When you felt your right foot slipping was it flat on the ground or was it moving?” She replied:-
“I can’t honestly answer that I don’t remember all I know was that I was walking down the steps and my right foot slipped and I fell. I didn’t take note of where my foot was when I started falling.” (T243)
In her evidence-in-chief before me the plaintiff said that:-
(a)When she came to the seated position [which I infer was when she came to rest after falling] she saw Jan Walters, a fellow employee at what she called the administration door (T117) but that Jan Walters did not come over and the plaintiff did not call out to her.
(b)She sat on the easement just below the stairs for about 10 minutes because she was in shock and in pain including pain in her lower back.
(c)That she got up and walked to the club and went inside where she saw Mrs Shelton and a fellow employee named Max Richardson. (T118) She said these two people and her sister Angela Smith, (also a fellow employee) were in an office adjoining the strong room. She said:-
“Angela said that I didn’t look well. She said ‘What’s wrong’ and I said ‘I have just fallen over.”
She went on to say that “Max and Pam were there also and they asked what had happened.”
(d)Richardson attended to her grazes using a first aid kit. (T119) The plaintiff remained at work ceasing at 5 p.m. on that day. She had a business lunch that day at a Mt Gravatt restaurant with a Mark Bevitt, which she attended (T124). She said she was in pain through the lunch and told Bevitt that she had fallen and was in considerable pain. She was taking panadol.
(e)30 July 1993 was a Friday, and the plaintiff did not work on the following week-end.
(f)On Saturday 31 July 1993 she was in pain and continued taking panadol and on Sunday was in much the same state. She did not sleep well and had pain at night which woke her from sleep. (T120)
(g)The plaintiff returned to work on Monday 2 August but in cross-examination agreed that on Saturday 31 July she attended Beenleigh netball courts where she saw a netball game which she signed off as scorer (see Exhibit 61).
(h)On the night of Monday 2 August she played the whole of a competitive netball game and in cross-examination agreed that she scored a number of goals (T259) although she noticed slight pain in her lower back. (T260) She said she played in the goal attack position. She also umpired the next game in which she said she noticed slight pain but she coped.
[I am satisfied a game of netball lasted 40 minutes and that on 2 August 1993 plaintiff was on the netball court for a total of 80 minutes.]
(i)The plaintiff had pain in the week starting 2 August saying that her main pain was in her buttocks region and that was the main cause of concern. She said she did have lower back pain but nothing that was so intense that it was the major problem. (T123)
(j)She said the pain in that week did not change in any way, and that she did not go to see a doctor because she assumed that the pain would subside and she would be better in a couple of days. (T124-60)
(k)The second working week after the fall which I find was the week starting Monday 9 August was Brisbane exhibition week but plaintiff did not tell me of any particular pain in that week although she did say that on Monday 16 August she was still experiencing pain.
(l)In the third week after the fall which was the week starting 16 August, the plaintiff attended a trade fair at the Kedron - Wavell Services Club and this was over two successive days - the 16 and 17 August. (T125-25)
(m)The plaintiff and Mrs Shelton attended the trade fair and on the night of 16 August she and Mrs Shelton stayed at a motel at Kedron.
(n)On 16 August the plaintiff and Mrs Shelton attended a major dinner at Kedron Wavell Services Club (125/52) and plaintiff was still experiencing pain and had not been to see a doctor because she still thought it would “just go away”. (T126) She said the pain was “across the top of my right buttocks.” (T126)
(o)At the trade show she consumed a considerable amount of alcohol while socialising - there were free drinks, and I infer from her evidence she consumed alcoholic liquor at the dinner on 16 August.
(p)During this dinner she experienced pain in the top part of her buttocks across to her side and “across my right buttocks, the top of my right buttocks.” (T126)
(q)On 17 August she drove Mrs Shelton to Mrs Shelton’s home, and on the afternoon of that day after leaving Mrs Shelton went to see Dr Geoff Madden at Beenleigh. When asked what she told Dr Madden she said:
“I went to see Dr Madden because I thought that perhaps the pain that I was experiencing may have had something to do with my kidney. Because of the excessive alcohol that we had consumed I was worried perhaps I damaged myself and I just wanted to make sure that it wasn’t anything to do with my kidney.” (T127)
She said she recalled mentioning to the doctor that she had been drinking and when in evidence-in-chief she was asked:-
“Q.Can you recall whether he asked you whether you had suffered any injury?
She replied:-
“I don’t recall him asking. I didn’t really relate the intense pain that I had to my back because I didn’t realise that you get referred pain.”(T127)
At this consultation, Dr Madden prescribed anti-inflammatory tablets.
[I heard no evidence as to what is meant by “referred pain.”]
(r)On the night of 17 August she had dinner with a Stephen Livingstone at a Chinese Restaurant at Springwood. She took panadol which “didn’t seem to help” and during the dinner “walked around a lot of the time”. She said the pain was in her back, her right buttock and right leg. (T128)
I interpose to say that during the plaintiff’s evidence-in-chief she gave me the clearest impression that she and Livingstone were the only two persons at this dinner, but Livingstone did not support her on this point. I find that on this night other members of the defendant’s staff were present at the dinner. [Livingstone did not know the date or year of this dinner. In May 1998 he was first asked to recall the event.]
(s)On 18 August the plaintiff did not go to work because she was in extreme pain in her lower back, right buttock and right leg. She said this pain was more intense having “changed a lot”. (T129)
(t)On the morning of 18 August she visited Dr Madden again, where she said she was given some Valium to try to relieve the muscle spasm that she was having, a pain killer being panadol once again, and told to go home and go to bed and rest. (T130-15)
(u)She said that when she saw Dr Madden on 18 August she didn’t think that the pain was caused in any way by the fall down the stairs saying “I didn’t relate it to that, no”. (T130-38)
[Dr Madden’s evidence is that he consulted with her at his surgery on 19 August.]
(v)She was unable to return to work but kept in touch with Mrs Shelton.
(w)She said that on the following day Dr Madden came to her home. (T132-55)
[I interpose to say that I find that it was on 20 August and not 19 August that Dr Madden had a home consultation with the plaintiff.]
(x)After her second visit to Dr Madden the plaintiff was referred to a Dr Palmer who sent her for a CT scan; the plaintiff was not satisfied with the treatment received from Dr Madden. (T131-60).
(y)The plaintiff had the CT scan which I find was probably on 31 August and took this scan back to Dr Palmer on the same day.
Dr Palmer told her that she had a herniated disc and referred her to Dr Redmond a neurosurgeon.
She said that she saw Dr Redmond on 31 August.
(z)She said she next saw Dr Madden at his surgery on 30 August when for the first time she told him of her fall at work on 30 July. (T133-15) During her evidence-in-chief she was asked why on that occasion she mentioned to Dr Madden her fall at work and she said - “Yes, the reason being that I realised that I couldn’t get back to work and I needed to have a certificate so that I could go to see Workers Compensation.” She said this visit to Dr Madden followed a discussion she had with Mrs Shelton on 30 August.
The plaintiff said the conversation with Mrs Shelton on 30 August occurred when Richardson was present (T134-5). Her evidence was that she told Mrs Shelton that she needed an operation and then said:-
“I said that I couldn’t recall having hurt my back, I hadn’t done anything that I had really thought was really damaging like the prognosis was and she said to me ‘Remember you fell down the stairs and hurt your back and that was pretty severe’ I said ‘Yes it was’. She said ‘I suggest to go to Workers Comp because that fall that you had down the stairs did damage your back’.” (T133)
She said she then made a claim for compensation and obtained a certificate from Dr Madden permitting her to be absent from work and receive payments of compensation.
(aa)On 30 August 1993 the plaintiff completed an application for Workers Compensation (Exhibit 58). This was witnessed by Richardson. On the same day she signed a statement as to the circumstances of the fall (Exhibit 59). In this statement she said she resided at 38 Robert Stanley Drive, Mt Warren Park and also stated:-
“On the 30/7/93 when going down the stairs of the Administration Block I slipped on the wet stairs and then slid down to bottom of the concrete. No-one actually saw me fall but the club accountant Jan Walters heard my scream. I sustained cuts, grazes and bruise to my right thigh and knee and to my left foot also some pain in my lower back. I got up and walked over to the services club and reported my injury to Mr M Richardson, Health & Safety officer. I continued to work and do my normal duties up to and including the 18/8/93 ... .”
[This statement makes no reference to looking to the right for traffic.]
The statement then went on to say she had consulted Dr Madden on 17 August saying “He examined me and diagnosed me as having muscular pain”. She said in the statement that she saw Dr Madden because she was, “still suffering from lower back pain which was radiating pain and cramping sensation down my right leg right down into my toes.”
She referred also to having consulted Dr Madden again on 19 August after having been in severe pain on the night of 18 August and this time he diagnosed her condition as L5-S1 disc prolapse. It was in this statement that the plaintiff said she played outdoor netball but hadn’t played since the middle of June.
(ab)On 9 September 1993 Dr Redmond performed a lumbar laminectomy on the plaintiff’s back.
(ac)Plaintiff wished to travel to Sydney towards the end of August 1993 to play netball, and on a date which I find was 19 August 1993 she told Dr Madden of this desire and Dr Madden gave her a referral to Kirstine Jenner a physiotherapist who treated the plaintiff but such treatment did not “alleviate the symptoms” she was suffering.
I find in passing that the referral dated 19 August 1993 is Exhibit 3 and says:-
“Leanne Kelly has L5S1 sciatica ® side. She wants to go to Sydney next week and would like your assistance to get better faster.”
I have set out the plaintiff’s evidence in some detail because of defence submissions that the plaintiff’s evidence as to the circumstances of the fall should be rejected, and because that submission relies on certain evidence from Dr Madden, which I think can best be understood in light of the evidence from the plaintiff as to the fall, her subsequent pain history and her consultations with doctors.
I should at this stage say that the evidence in respect of this incident of 30 July 1993 raises for my consideration the following questions:-
1.Did the plaintiff hurt her back in the fall of 30.7.1993?
2.Has the plaintiff proved a causal connection between that fall and the disc protrusion on the right side at the L5/S1 level which she alleged in the amended statement of claim she suffered in that fall?
3.Was the plaintiff reading at the time of the fall and if so what effect did that have on her case?
In answering these questions I have found it necessary to canvass the relevant evidence in some detail.
Dr Madden who I thought an honest and reliable witness was called in the plaintiff’s case. He sent the Workers’ Compensation Board a report dated 7 September 1993. That report is Exhibit 4, and its first three paragraphs said:-
“Leanne presented on 17th August, 1993 complaining of low back pain of recent onset, which was worse on movement. She could not recall an injury as the cause of the pain Examination revealed tenderness at L-5 and to the right of L-5. She was not greatly troubled at this stage and simple analgesics were suggested.
On 19th August, 1993 she presented with progression to right sided sciatica with pain and tingling running down the back of her left [sic] leg. Examination revealed ongoing tenderness over L-5 and S-1, an absent right ankle jerk and SLR of ten degrees on the right (seventy degrees on the left). L-5/S-1 disc disease was diagnosed and rest and anti-inflammatories prescribed. She required a home visit the following day and was unable to continue oral anti-inflammatories due to gastro-intestinal symptoms. On 23rd August, 1993 there was evidence of some improvement.
On 30th August, 1993 she was more mobile and had had x-rays confirming L-5/S-1 disc narrowing. I suggested continued conservative management. She also recalled a fall at work on 30th July, 1993 where she had fallen down three stairs and had developed low back pain which persisted into the time of her consultations here. It seems likely that the fall precipitated the severe disc disease troubling Leanne now.”
It will be seen that there is some disparity between the evidence of the plaintiff and the evidence of Dr Madden as to the dates on which she saw him. Where there is any disagreement, I accept the dates stated by Dr Madden.
During his oral evidence before me, Dr Madden referred to contemporaneous notes made by him on the plaintiff’s history notes or progress notes. He had no recollection of and had made no notes in those notes that on 19 August the plaintiff told him why she wanted to go to Sydney. (T448) He accepted Exhibit 3 - the note written by him to Kirstine Jenner.

In my view one of the most important aspects of Dr Martin’s evidence was what he wrote in the history notes on 17 August 1993 as to his consultation with the plaintiff on that day. He told me that he wrote in the notes for that day:-
“Back pain - no injury - seems to come on after alcohol.” (T450)
I accept his evidence that that was the only history from the plaintiff which he recorded on that day. I find he did on that day make other notes following his examination of plaintiff.
I am satisfied also that on 17 August 1993 the plaintiff did not give Dr Madden any history other than that which he noted - nor did she tell him she was concerned about kidney infection or something to do with her kidney - a matter she mentioned in her evidence as the cause for seeing Dr Madden.
Paragraph 1 of Exhibit 4 records him saying “Examination revealed tenderness at L-5 and to the right of L5. She was not greatly troubled at this stage and simple analgesics were suggested.”
I am satisfied that in the plaintiff’s history notes Dr Madden recorded that on examination he noted the plaintiff was tender about L5 especially to the right side and that he wrote in the notes “mechanical pain” and then a question mark “due to loss of sleep”. He explained that “mechanical pain” “covers just about anything that can affect your muscles and ligaments in your lower back.” (T451)
He expressed the opinion that plaintiff was suffering mechanical pain possibly due to loss of sleep, and that that pain was not all over her body but just in her back. He told me that loss of sleep was a cause of the mechanical pain and he said:-
“At that stage she was not greatly troubled and it is the sort of pain that you get, low in your back, is frequently due to lack of sleep or stress or other problems rather than specific injuries especially as she at that stage could not recall any injury.” (T451)
The evidence shows and I accept that at about this time the plaintiff had personal problems. She had an intra-uterine device (IUD) which was removed. She had an unwanted pregnancy which was terminated and a tubal ligation. The pregnancy had been terminated on 25 June 1993. (T306) The plaintiff was in a relationship on a basis of sexual intimacy with a man named Norm. At the time the plaintiff was, as I so find, very friendly with Mrs Shelton, but knew that Norm and Mrs Shelton disliked each other and the plaintiff was having problems, as she said, “trying to juggle them without hurting one or the other’s feelings”. (T305)
I am satisfied on the evidence that on 17 August 1993 the plaintiff did indeed have a number of problems in her personal life some of which are set out above and that these matters probably did cause stress, were well capable of causing the pain in the back of which the plaintiff complained when she saw Dr Madden on 17 August and I find probably did cause that pain.
I find that on 19 August 1993 Dr Madden diagnosed the plaintiff as having disc disease and I consider it more likely than not that on 19 August 1993 he told plaintiff of this. I find that Dr Madden saw plaintiff on 20 and 23 August 1993 and that it was not until 30 August when plaintiff saw Dr Madden in his surgery that he was told of any injury on 30 July 1993 and made the following notes:-
“Recalls injury to back 30 July 1993; fell down 3 stairs - low back pain also right knee and thigh and had persisted into time noted here.”
Dr Madden was unable to recall whether the phrase “persisted into time noted here” was his comment or what plaintiff told him. He said:-
“I imagine I asked her specifically because its in the context of - I have got a note here underneath it, a 5 with a circle on it which means a Workers’ Compensation Form, so if I am going to write a Workers’ Compensation Form, I have to have some way of knowing that what I am dealing with is related to an injury, so I imagine I asked her if it came through right to the time of the pain she complained of here.” (T458)
I am satisfied that on 30 August 1993 he gave the plaintiff the Workers’ Compensation Form 5 for the period from 19 August to 6 September.
I am satisfied that the contents of the first 3 paragraphs of Exhibit 4 are based on Dr Madden’s patient history notes and his examination of the plaintiff, save that I find the last sentence in the third paragraph is based on what plaintiff told him on 30 August and that the reference in the second paragraph to pain down the back of the left leg is incorrect and should read “right” leg.
I find on all the evidence that before 30 August the plaintiff said nothing at all to Dr Madden concerning an injury on 30 July, and this despite consultations concerning back pain on 17, 19, 20 and 23 August 1993. I find that it was not until 30 August 1993 that she told him for the first time that she had fallen down three stairs and had developed low back pain, which persisted thereafter until 30 August. I should at this stage say that one matter not elaborated on in Exhibit 4 was the plaintiff’s visit to Dr Madden on 23 August. I find this was a surgery visit, that he noted that pins and needles and numbness were reducing, although she complained of worse pain in the back, that overall he thought the pain was resolving and that he said that her leg was a bit better, and found her right leg raising was to 20 degrees.
He suggested she carry on with rest and he prescribed other medication. He noted an error in his history note for 23 August in that when he referred to straight leg raising he said “left” when it should have been “right”.
I also add that in his evidence Dr Madden gave the following evidence which he read from the history notes:-
“On 30/8 she was much more mobile; she noted little pain but it was worse if she had prolonged walking or sitting; the numbness however was persisting. By that stage she had had the x-ray which showed L5/S-1 disc narrowing and also at that stage she recalled an injury to her back.” (T456)
I thought it significant that on 30 August the plaintiff was able to tell Dr Madden the exact date of the fall in which she said she fell down three stairs yet on the four previous visits in August did not mention such fall, let alone a date.
I mention also that in his cross-examination Dr Madden dealt with his diagnosis when he first saw plaintiff on 17 August, namely mechanical pain and his views thereafter. He said his first diagnosis was mechanical pain. (T461) But he was then asked by Mr Stephens:-
“You told me that at that time the ground for that diagnosis was due to loss of sleep.”
He answered:-
“I put it as possibly due to loss of sleep. When you have got a mild back complaint you don’t go looking for causes too much, you just see what you think might be causing it. I think disc disease certainly can be caused by injury. If I don’t have a history of injury I don’t go looking for that as a cause, I look for other causes. If I then have a history of injury I say well that’s the most likely cause.”
The emphasis is mine, and I formed the clear view and I find that when plaintiff first saw Dr Madden on 17 August she had a complaint of mild back pain. - Dr Madden described her as “not greatly troubled”.
I now turn to evidence as to the circumstances in which the plaintiff came to tell Dr Madden of her fall down the steps on 30 July. In her evidence-in-chief the plaintiff told me that it was Mrs Shelton who on 30 August said to her:-
“Remember you fell down the stairs and hurt your back and that was pretty severe”.
The plaintiff said she agreed and that Mrs Shelton suggested she go to Workers Comp. “because that fall you had down the stairs did damage your back.”
In cross-examination the plaintiff agreed with Mr Stephens that this conversation on 30 August was “the first time I had made a connection with the full pain.” (T271) She did not know whether the conversation was by telephone or whether she actually saw Mrs Shelton but thought it more likely that she spoke with her and I infer from that that she meant a face to face conversation.
In cross-examination the plaintiff agreed that she said to Mrs Shelton words to the effect “I knew I had had a fall. It was the only thing I could put it down to.” (T272)
The plaintiff was adamant in her view that she had in effect connected the fall down the stairs with the back pain after speaking with Mrs Shelton on 30 August, and that she had this conversation with Mrs Shelton before she spoke to Max Richardson about making the Workers Compensation claim.
I pause at this stage to say that there was no evidence from any person who witnessed the plaintiff’s fall on or near the steps of the defendant’s premises, but the case was conducted on the basis that she had indeed fallen on or near the stairs on 30 July 1993. The plaintiff bears the onus of proving a causal nexus between the fall and the back injury of which she complains in her pleadings. 113 On the matter of pain I have set out in some detail her evidence including her evidence before me as to the continuity of that pain from and after the time of the fall. It was not until 30 August that for the first time the plaintiff made a statement claiming a causal nexus between the fall and the injury in respect of which she has sued. At the end of the day the making of the necessary nexus depends very largely if not entirely on the plaintiff’s credibility.
The 30th August was in my view an important date in the history of events leading to this action. The plaintiff says that on that day she first made the connection between the fall and her serious back condition of which she had been made aware on 19 August when Dr Madden had told her she had disc disease. (T551) Indeed, in her statement for Workers Compensation (Exhibit 59) she said that on 19 August 1993 Dr Madden diagnosed her condition as L5S1 disc prolapse.
I find that the following further events occurred on 30 August:-
1.The plaintiff spoke with Richardson.
2.She made a claim for Workers Compensation signing her application on that day (Exhibit 58)
3.She signed a declaration (Exhibit 59) to accompany the Workers’ Compensation Claim.
I now come to the evidence of Maxwell Richardson, a witness called by the plaintiff. He did not see her fall. He said that before the club opened, that is before 10 a.m., the plaintiff came through the main entrance to the club, that he was on duty at the front desk and she was quite distressed and limping, and said she had fallen down the stairs from the administration building. (T362)
There is no dispute that he dressed the plaintiff’s abrasions using the contents of a first aid container. He was the Work Place Health and Safety Officer and also the first aid officer and security officer of the defendant. (T358)
I find Richardson began employment with the defendant as a doorman on or about 19 November 1992, although at one stage he said August 1992.
There is a book kept by the defendant in which Richardson and other people recorded injuries to persons and this book styled “Accident and Injury Report Book” contains an entry dated “30/7/1993" which Richardson said he made and it is Exhibit 70. Exhibit 70 shows in the “TIME” column - “9.20 a.m.” In the column headed “AREA ACCIDENT OCC” appears - “ADMIN OFFICE AREA (ENTRY STAIRS)” In the column “NAME” the words “LEE KELLY” appear. Under the heading “INJURY” the following appears:-
“MINOR LACERATION OF R/KNEE L/FOOT, INJURY RTHIGH, LOWER BACK INJURY.”
In the column headed “CAUSE OF ACCIDENTS/INJURY” the following appears:-
“WET STAIRS/REPORT TO M RICHARDSON JAN....................PAM SHELTON.”
In the column headed “MEDICAL ATT” appears, in a different coloured ink, a question mark and the word “yes” followed by Richardson’s initials. Richardson swore that the entry as I have set it out was written by him but not all at the same time. He said he made this entry on 30 July 1993. I am satisfied that 30 July 1993 was a rostered day off for Richardson but that he was present at the defendant’s premises on the morning of that day. I find he was not “on duty” as he claimed. Richardson denied a suggestion that it was in August 1993 he had made this entry dated 30 July 1993. He said he had written in “lower back injury”, but I am satisfied that on 30 July 1993 he did not know that plaintiff had suffered, if she did indeed suffer a lower back injury in the fall on 30 July.
In cross-examination he said that after the fall the plaintiff had come in and said “I have fallen down and hurt myself” but she did not say what part of her body had been injured. (T413) He gave what I thought was an unsatisfactory explanation (which I do not accept) as to how he came by the information “lower back injury” in Exhibit 70. When he was asked this question he replied:-
“I am - the lower back well I can only say that after she came back to the club that evening before going home after her appointments and said that she had a sore back so I have probably entered it then I can’t say 100%.”(T413)
When it was put to him that he hadn’t previously told the court that, he said “I’m sorry” going on to say “I can’t remember all the conversations 4 years ago.”
I am not prepared to find that Richardson wrote the whole of the entry for 30 July 1993 (Exhibit 70) on 30 July 1993. I find that he certainly did not write “lower back injury” on that day, but that he probably wrote these words in much later and probably sometime after 23 August 1993. I find that Richardson probably wrote the entry dated 30 July some time after 23 August 1993.
I add that during his cross-examination Richardson said he had assumed that plaintiff hurt her back when she slipped over. I thought Richardson was an unsatisfactory and unreliable witness in whose evidence I could have little if any confidence. On a number of occasions he resiled from what he had said during evidence-in-chief. Not only that but I thought he was a person who gave evidence with a view to helping plaintiff’s case as much as he could. He was neither a disinterested nor impartial witness. I am satisfied he had met the plaintiff in late 1992 and I find that he lived with her as man and wife in her home for about 3 months from late December 1992. I find he had met the plaintiff before he started work with the defendant.
In his evidence-in-chief, Richardson spoke of having seen the plaintiff at her house on the day following her fall and in the week following the fall both at work and at home. He said she and he were still friends after their relationship had ended. He told me that over this following week “She had difficulty getting around”. (T369) “She didn’t walk normally” (T370) “she would squat down to pick up things, instead of just turning she would turn her whole body instead of just turning to pick that up.” (T370)
These statements, if true did not accord with plaintiff’s evidence that by Monday 2 August she was able to return to work and play competitive netball on that night scoring goals, and later that night umpire another netball game - I reject Richardson’s evidence which I have set out in para.125 above.
In cross-examination Richardson resiled from his earlier statement in evidence-in-chief that he saw her at work and at home over the following week saying “I can’t say at work” - “I can’t remember when I saw her or how often I saw her”. (T407)
Richardson claimed to have heard the plaintiff complain of a sore back while at work prior to 18 August 1993 but couldn’t say on how many occasions (T408) and that he probably asked the plaintiff every day he saw her “How is your back?.” (T408) I reject that evidence.
Later and during his cross-examination the following questions and answers occurred:-
“Q.I suggest to you that until about 17 August 1993 she had made no complaint in relation to an injury to her back. After that time the injury was quite severe and you when you visited her and when you talked to her no doubt enquired as to how her back was but that prior to that time there had been no complaint of an injury to her back and you had not made any enquiry about that possibly an enquiry in relation to her knee but no enquiry in relation to her back. Do you understand that?
A.I understand that what you are saying now you are saying she didn’t complain until the 17th.
Q. Yes.
A.I can’t give you an honest - I can’t give you I would say I would have enquired after her back if I’d have known about it and I probably did know about it so I would have enquired about her back and all other injuries at the same time.
Q.What do you say you probably would have asked her about her back at the same time?
A.She had a sore back the afternoon she went out for dinner for lunch or whatever it was, at the appointments.” (T410-411)
I should add that not long before 30 July 1993 Richardson had attended a Work Place Health & Safety course at a TAFE College. I also add that I find Richardson himself had a back problem at the time he gave evidence. He now lives near Tamworth and I find that he left the defendant’s employ in 1996 and that thereafter the relationship between him and the defendant was acrimonious.
Richardson agreed he witnessed the plaintiff’s signature to the application for compensation dated 30 August 1993 and told me he was asked to do so by the plaintiff. (T372) He said he was present during a conversation between the plaintiff and Mrs Shelton when, according to Richardson, Mrs Shelton “instructed Leanne to put a claim in for Workers’ Compensation because that is why they pay insurance and it is to cover these types of accidents”. (T372/5) I do not accept that evidence in those precise terms.
I next deal with the evidence of the witness Angela Smith, a sister of the plaintiff. She gave evidence on 14 July 1998. Her evidence was not opened until shortly before she entered the witness-box. The trial had begun on 2 March 1998. It was set down for 3 days. On 6 March 1998 with the plaintiff’s case still unfinished the matter was adjourned and set down to resume on 14 July 1998. I am satisfied that Mrs Smith was not asked to recall the events of 30 July 1993 until several months before 14 July 1998.
I find that she was an employee of the defendant on 30 July 1993. In her evidence she said that on the morning of 30 July, she was working as a cashier, and when she was counting money in the strong room the plaintiff came in holding one hand on her back on her right side, and also holding her head. She said the plaintiff “Looked like she was in pain” and she (Angela Smith) asked her if she was all right. The plaintiff said she was OK and Mrs Smith said “You’re not OK what’s wrong” and she replied “I fell over outside and I have hurt myself. I have hurt my back.” According to Angela Smith no other person was present when this conversation occurred.
Of the witnesses called, she is the only one who speaks of the plaintiff having a conversation with Smith alone on 30 July 1993 and the only one who speaks of the plaintiff saying on 30 July 1993 that she had hurt her back. The plaintiff herself in evidence said that after the fall when she entered the club building, Angela Smith was present inside the club at the same time as Richardson and Mrs Shelton. Neither Richardson nor Mrs Shelton say that the plaintiff said she hurt her back, nor do either of these witnesses say the plaintiff hurt her back. Mrs Shelton did not recall Angela Smith being present (T617). Although Mrs Smith was confident of her evidence as to the date namely 30 July and the conversation with her sister, she was I thought vague in respect of other events occurring about that time. She said one reason why she was able to remember 30 July 1993 was that it was a week after her birthday, and it was the day before the Albert District Netball Association was going away to play at Toowoomba.
I do not accept the evidence of Mrs Smith that the plaintiff came into the strong room when only she and the plaintiff were present and said words to the effect “I have hurt my back” and holding her hand on the right side of her back. It is not in issue that when the plaintiff entered the club building she did say that she had fallen over. Nor is it in issue that she had grazes on at least one knee. I thought Angela Smith an unreliable and not impartial witness who had come to court determined to give evidence which she hoped would bolster the plaintiff’s case.

One question for me then is whether or not the manner in which the plaintiff was reading at the time she fell deprived her of her peripheral vision.
On this exact point the evidence is silent. However, there is evidence which I accept, that the plaintiff herself did say to Mrs Shelton “She fell down ... because she was reading at the time” (T646) and that she told Mrs Crawford “That she was reading when she had the fall”.
There is also evidence from the plaintiff which I accept that she had a number of A4 work related papers in her right hand and had 3 biros in her left hand at the time of the fall. (T116)
I am satisfied she was walking in the direction of the main club building during working hours and I infer from the above evidence that at, and shortly before the time of the fall, the plaintiff was reading one of the A4 “work related” papers and that at and shortly before she fell the papers were so positioned that the edge of the steps was blotted from her vision, and that her peripheral vision was, by reason of the reading and the position of the papers, unable to help her see the visual edge of the top step whether or not that edge was highlighted with a white line.
I am satisfied then that the plaintiff fell on 30 July 1993 at a time when she was reading some work related papers she was carrying and at a time when the visual edge of the top step was blotted from her retina and when her peripheral vision was by reason of the matters already mentioned unable to help her see the visual edge of the top step.
I should add that the evidence of Mr Kahler satisfied me that neither the presence nor absence of water on the terracotta path leading to the steps and on the steps had any effect on the fall and that the style of shoe worn also had no effect on the fall.
In the result, I find that the plaintiff has failed to prove any negligence in the defendant on 30 July 1993 and that she has failed to prove any causal nexus between the fall and the disc protrusion at L5/S1.
It is unnecessary, in light of my findings which I have just made, to consider the claim based on breach of statutory duty. The plaintiff’s claim in respect of the second incident therefore fails.
Damages
If I should be wrong in my views on the issues of liability for each of the two incidents and other persons take the view that the defendant is liable in damages to the plaintiff for one or other of these incidents I must now assess the plaintiff’s damages for each incident.
First Incident
The plaintiff said the pain arising from this incident “seemed to settle down after a couple of months, after probably 3 months or so ... at night it was sore it was worse at night probably but it settled down greatly after approximately 3 months”. (T102)
She said she lost no time off work because of the back pain arising from the lifting incident. She attended Dr Martin several times and for several weeks underwent a back exercise programme suggested by Dr Martin (T103). Plaintiff told me that the exercise was rigorous and as the pain subsided the exercises “eased right off” (T103). She also said that after the period of months when the pain settled down she had a dull back ache “just sometimes” and it bothered her “not at all”.
The award of damages for pain and suffering for this first incident must be small embracing as it does a period of some 3 months and a dull ache thereafter which bothered her “not at all” as well as vigorous exercises. There was no suggestion that by the time of the second incident she was suffering any aches or pains from the first incident.
I assess the general damages at $900. Special damages are agreed at $130.05. Thus, I assess damages for this first incident at $1,030.05.
Second Incident
I find that it was not until 18 or 19 August 1993 that plaintiff’s pain in her lower back was at a sufficient level to cause her real concern. The level of which I speak was the appearance then of right-sided sciatica (see para.190 ante). I have found that it was on 19 August 1993 that she first reported right-sided sciatica to Dr Madden (para.190 ante). On 2 August 1993 she had been able to play a netball game and to umpire a netball match. On 1 September 1993 the CT scan of the lumbar spine showed the degenerative changes with a disc protrusion of L5-S1 on the right-side causing nerve root compression with sciatic pain (see para.190(a) ante).
On 9 September 1993 plaintiff underwent lumbar laminectomy. I am satisfied that after 18 or 19 August 1993 she did suffer considerable pain and discomfort as a result of the disc protrusion of L5-S1 disc on the right-side which caused nerve root compression with sciatic pain. I am satisfied also that she suffered considerable pain, discomfort and inconvenience following the surgery. I find that the pain prior to 18 or 19 August 1993 was mild and not consistent with the disc protrusion.
I find also that at 30 July 1993 plaintiff did have a degenerative L5-S1 disc and I accept that on that date she had pre-existing but asymptomatic degenerative changes at L5-S1. I find that before 30 July 1993 the L5-S1 disc was not normal. I accept Dr Weidmann’s evidence that it is likely i.e. more likely than not that symptoms similar to those found on 1 September 1993 would have developed at some time in the future even if the plaintiff had not suffered the disc protrusion of L5-S1 on the right-side which caused nerve root compression with sciatic pain. I accept Dr Weidmann’s opinion (agreed in by Dr Redmond) that “this would have happened within five to ten years from when the injuries occurred”. I find the defendant has discharged the burden of establishing “with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress were likely to be” (Purkess v Crittenden (1965) 114 CLR 164 at 168).
I therefore find that by about the present time the plaintiff would have developed the same symptoms as led to her undergoing lumbar laminectomy and being in the condition she is today. I have chosen the 5 year figure for a number of reasons. First of all, the plaintiff was a woman who led a very active social and sporting life and as the medical evidence showed, a person such as the plaintiff with pre-existing degenerative changes in her lumbo-sacral spine could suffer a discal injury in quite minor ways e.g. bending over to tie a shoe lace. Secondly, she was a regular player of competitive netball and I am satisfied played the game hard and had in the past suffered a number of falls and injuries while playing netball. Netball games were usually played on hard surfaces. Given her competitive and highly physical style of playing netball which I consider she would have continued to follow for at least 5 years after 30 July 1993 it is my firm view that (had she not been injured in July or August 1993) then the symptoms leading to laminectomy and her present state would, on the balance of probabilities, have been at the bottom end of the range given by Dr Weidmann. Thus, the component for pain, suffering and loss of amenities will not include any allowance for future pain, suffering and loss of amenities.
I accept the plaintiff’s lumbo-sacral spine does at present cause her some pain and discomfort but I am satisfied also that she portrays and has portrayed that pain and discomfort as greater than it actually is. I accept Dr Weidmann’s opinion that the plaintiff has been improved by surgery but continues to suffer some ongoing pain, that the post operative MRI shows a good post operative result with no recurrent or disc herniation and no persisting nerve root compression, that there are the usual post-operative changes but no marked scarring and that the plaintiff’s ongoing symptoms are largely of a subjective nature.
A good illustration of the true extent of the plaintiff’s pain and discomfort came from the evidence of Lynette Sheree Johnstone as to an occasion at Friday’s nightclub in Brisbane on 23 March 1994. I am satisfied (T732) that on that occasion plaintiff was disco dancing on the dance floor, fell and picked herself up and continued dancing till the “wee hours of the morning” to use Mrs Johnstone’s phrase. I accept Mrs Johnstone’s description of disco dancing as being “fairly physical” with “plenty of movement of arms and legs” and I find plaintiff was disco dancing in that fashion. In my view such dancing activity was inconsistent with the extent of pain of which plaintiff spoke in her evidence.
When the plaintiff was questioned about this incident she agreed that she had attended the nightclub on 23 March and that she had fallen over. She denied she continued dancing without any sign of disability or pain although she admitted she got up immediately after she had fallen over and continued dancing for a little while. I find that the plaintiff’s answer was not accurate and I prefer the evidence of Mrs Johnstone as to what happened on that occasion.
I formed the firm view that this plaintiff exaggerated the extent of the pain she says she now suffers. Given the subjective nature of her pain and my view that the plaintiff was on occasions an unreliable and not credible witness I am not satisfied that her pain was and is as great as she claimed. I make this finding recognising and accepting that from time to time because of pain or discomfort she does need some postural changes.
I accept the lumbar surgery was serious and I accept the evidence of Dr Weidmann that the plaintiff now has a 10 per cent partial permanent impairment of the whole person as a result of her herniated lumbar disc. I find also that plaintiff has an estimated 60% chance of modifying the pain as a result of treatment she proposes to undertake with Dr Leigh Atkinson. That however is in the future. I assess the component for pain, suffering and loss of amenities all of which is for 5 years at $20,000. I add that I am satisfied that plaintiff began seeing a Gold Coast Doctor - Dr R.L. Worfold - on 8 October 1993. Dr Worfold gave oral and written evidence (Exhibits 15 and 16). I do not accept his evidence that plaintiff had and has piriformis syndrome.
Impairment of Earning Capacity
I find the plaintiff was absent from work with the defendant from 19 August 1993 to 31 January 1994. She then worked for the defendant on a reduced hourly basis until 17 February 1994 (see relevant documents in Exhibit 69 which is a schedule of documents concerning plaintiff’s employment with the defendant).
From 18 February 1994 to 22 April 1994 she attended the South Brisbane Centre with a view to returning to being a marketing manager with the defendant. Exhibit 33 is the discharge summary from that centre. The South Brisbane Centre is in part a work site based programme - in effect part of a work assessment scheme conducted by a division of the Workers’ Compensation Board. During part of this period 18 February 1994 to 22 April 1994 plaintiff was to spend some time working for the defendant. Exhibit 33 contains comments from various persons concerning the result of the plaintiff’s attendance at that centre. I note the following from their comments. The medical officer Dr John Denzin noted the plaintiff had made good improvements in a number of the physical parameters involving her lumbar spine since she began the South Brisbane Centre programme. He described her as having worked very hard and having managed to start on a work assessment scheme in her usual job but had not as yet reached full hours or full duties. He said she no longer required any time at the South Brisbane Centre for a conditioning programme but did need to continue on the work assessment scheme to build up to a full day’s work. He hoped that if things continued along their current pattern she would make a successful return to work in the near future. On discharge the plaintiff was given what was described as “a good home programme and gym programme” with which to continue.
The physiotherapist Jo-Anne Mutch commented that the plaintiff said she felt fitter and stronger generally, that her right leg symptoms were not as intense as previously but her central low back pain remained unchanged and was most severe at night. The plaintiff had been issued a tens unit to assist with pain management. She had a month’s gym membership to continue her exercise programme and continue improvements in strength and trunk stability. Ms Mutch said “further physiotherapy would be of limited benefit”.
The Occupational Therapist, Jo-Anne Lam mentioned a work site visit made on 25 March 1994 - I assume this was to the defendant. She noted critical job demands as being prolonged standing, walking and sitting - able to regularly vary work posture and static upper body postures. She noted the work conditioning programme included safe lifting and handling techniques and a clerical programme - she noted also what were called Bassett back support and inner soles as assisting devices. She described the plaintiff as having progressed steadily during her work assessment scheme and as having managed to up-grade to 4 - 4½ hours performing managerial and administrative duties with continued complaints of low back discomfort. She recommended that the plaintiff continue to up-grade her work tolerances on an extended work assessment scheme (approximately further 3 weeks) under her Rehabilitation Counsellors management.
As Exhibit 69 shows, on 31 March 1994 the South Brisbane Centre did send to Mrs Shelton a proposed work schedule for the plaintiff to commence on 7 April 1994. The documents attached showed that it was envisaged that she would commence work for 2 hours on each of 7 and 8 April and then increase the working hours until 19 April when she would work for 7 hours and ultimately on 20 and 21 April work a “full shift”. Recommendations were made that the plaintiff avoid prolonged periods of standing, sitting and walking and vary postures regularly every half hour to 1 hour, that she perform stretching regularly - every hour when possible - and that she avoid lifting or carrying more than 5 kilograms.
The proposed schedule envisaged the plaintiff being reviewed at the South Brisbane Centre on 22 April while continuing to work for the defendant and commencing again to work for the defendant on 26 April and continuing until 12 May. Initially the work hours were 4½ for each of the first two days and then gradually increasing until by 11 May she would do a full days work. Again restrictions were stated and it was noted that her duties were “managerial, bistro, public relations etc.”. 262 Each of the programmes sent by South Brisbane Centre to the defendant was stated to be a guideline which could be modified according to the plaintiff’s progress. The second programme which began on 26 April was to be monitored by a lady named Jan Taylor “as of the 26th April”. Jan Taylor is described as rehabilitation counsellor. I am satisfied that the Workers’ Compensation Board Work Assessment Scheme in which both plaintiff and defendant participated was designed to help plaintiff return to the workforce by demonstrating her work capacity on the job.
Correspondence from the Workers’ Compensation Board has satisfied me that certainly by 26 April 1994, plaintiff was regarded by the Workers’ Compensation Board, particularly after her attendance at the South Brisbane Centre as fit to participate in the scheme with a view to working as a manager.
I am satisfied the plaintiff did indeed work for the defendant during the periods specified by the South Brisbane Centre and which are set out in Exhibit 69. In late April 1994 plaintiff began working (on reduced hours) as a Bistro/Functions Manager.
Unfortunately the plaintiff appears to have been either unable or unwilling to work on a full-time basis. She again underwent a rehabilitation course - this time at Belmont Private Hospital at Brisbane. She spent 10 days in what was called the Early Intervention Rehabilitation Program - this was from 15 May 1994 to 27 May 1994.
Exhibit 34 is a report on the result of those attendances but before I turn to various aspects of that report I must say that I am satisfied that plaintiff attended Belmont Private Hospital because Dr Yaksich an orthopaedic surgeon at the Gold Coast whom she had consulted recommended she go there (T148). It appears that Dr Yaksich was on the Board of Directors of Belmont Private Hospital and it further appears that her attendance there was funded by the Workers’ Compensation Board. Obviously everything was being done to achieve the plaintiff’s return to the workforce.
Exhibit 34 showed a recommendation that the plaintiff return to her previous work but that she needed ongoing management. The diagnosis made was “continuing nerve root irritation” and that she had had right L5-S1 surgery on 9 September 1993.
The physiotherapist’s report in Exhibit 34 noted that plaintiff continued to complain of sciatica and sleep disturbance, that she was managing a light gym programme and walking 5 klms a day, that her gait was normal and that her posture and body mechanics were good. The physiotherapist recommended return to work on a graded programme and to maintaining a fitness regime.
The report of the clinical psychologist noted (inter alia:-)
“Results from the illness behaviour questionnaire indicated a high level of disease conviction as well as suggesting that somatisation processes may be influencing her illness behaviour.”
The same report also noted:-
“On completion of the programme Leanne reported that her pain was worse than on admission but that she was feeling stronger both mentally and physically. She stated that she had a better understanding of her condition and had a greater acceptance of her own capabilities. Leanne stated she planned to grade back into her normal work duties although she did express some apprehension about being able to return to full-time duties. Leanne worked well during the programme and appears to have a good understanding of pain management principles. For Leanne to be able to manage her pain effectively it will be important for her to continue to implement the strategies shown to her during the programme and to pace her activities and manage her work stressors. This may require being more assertive within the work place.”
The Occupational Therapist’s report noted that on admission “Leanne felt she was capable of sedentary work only “and that “on discharge Leanne feels she is capable of sedentary work. This is inconsistent with Leanne’s assessed functional capacity”. (the underlining is mine)
The Occupational Therapist’s report, continued and said:-
“From assessment Leanne may well be capable of work of a like nature that does not involve prolonged sitting or standing.”
and:-
“Work ability: Leanne’s performance on the programme: her physical tolerances and manual handling capacity would indicate she is fit for her previous work if she can avoid prolonged sitting.
Motivation to return to work: Leanne states she is highly motivated to return to work.”
The Occupational Therapist’s summary was to the effect that the plaintiff had worked hard on the programme and that continuing with a regular exercise programme will be very important for her on discharge.
Exhibit 69 contains letters from the defendant to the plaintiff concerning her return to work. The first is dated 31 May 1994 and it set out the major duties for her to perform while working for the defendant - though not as marketing manager. Part of her duties required her to work in conjunction with the marketing manager a man named Ray Hughes.
On 26 June 1994 the defendant wrote to the plaintiff a letter advising that the Workers’ Compensation Board had indicated plaintiff was fit to return to work in her original position subject to the advice of her medical practitioner. It also said:-
“Immediately upon return to work we advise the club will be responsible for payment of your wages for all the time spent on your rehabilitation and any residual amounts will be met by the Workers’ Compensation Board in accordance with the provisions of the Act.”

The letter pointed out to the plaintiff that the defendant could no longer keep her position open “unless you are prepared to rehabilitate into your position on a fulltime basis in the shortest possible period of time and in that event the club will have no alternative but to terminate your contract of employment as marketing manager... .”
On 29 June 1994 plaintiff did commence a work trial for 2 weeks - as marketing manager. Her duties were to be “normal” and she was to “avoid prolonged sitting” and to have “regular change of positions/posture”. (the underlining is mine - see para.271 ante)
Plaintiff continued to work for the defendant. It appears that she did not work full-time but was able to work 4 hours a day for 5 days a week and she moved into a position of functions co-ordinator (T155). This was a position created for her and required her to liaise with people who were seeking to hold functions at the defendant’s premises and as I understood her evidence, required her to “set up” the functions, arrange menus and, where necessary, attend. She told me she ceased work on 10 January 1995 (T156). Her reason given was pain in her lower back, her right buttock, her right leg and inability to cope with stress from work. She described the stress from work as “every day activities at work”.
In my view this plaintiff is not completely unemployable as she would have me believe. She has sought the sum of about $120,000 for impairment of earning capacity from 31 July 1993 to 14 July 1998. This figure is based on a calculation made by Vincents Accountants (Exhibit 105). Their calculation is founded on the assumption that the plaintiff would during the above period have continued to work for the defendant as a marketing manager. The calculations in Exhibit 105 show gross income of $35,000 per annum for the year ended 30 June 1994 with increases of approximately $500 per annum for succeeding years up to and including the year ended 30 June 1997 ($36,750) and with the same figure ($36,750) for the year ended 30 June 1998.
Credit is given for actual earnings in the financial years ended 30 June 1994 and 30 June 1995. The arithmetic in Exhibit 105 is not challenged but the assumption that plaintiff was totally unemployable after 10 January 1995 is challenged.
I find that as at 10 January 1995 and thereafter plaintiff was not and has not been totally unemployable and unable to perform the duties required of her when working for the defendant. Dr Weidmann does not believe the plaintiff is commercially unemployable and I accept his evidence to that effect. I accept his evidence (Exhibit 23) “that the plaintiff’s ongoing symptoms are largely of a subjective nature, that she does have some ongoing symptoms that will limit her capacity for work of a heavy nature, that she should not undertake any employment that involves heavy lifting or prolonged bending, that she should be medically fit for any other form of lighter work such as administrative work, and that she could sit at a desk provided she could get up and move around at her own pace.”
I find his opinions on her limitations are consistent with those expressed by contributors to the two reports Exhibits 33 and 34 which I have earlier mentioned.
I find on the evidence that the defendant, by Mrs Shelton, has gone to considerable lengths to retain the plaintiff in its employ and encourage her to return to work. Exhibit 69 includes a letter dated 10 January 1995 which I am satisfied was given to the plaintiff before she left and in which the defendant offered the plaintiff “a permanent part-time position consisting of 20 hours per week”. The letter stated the plaintiff would be responsible to the operations manager in the performance of her duties. The duties were to promote and fully produce the club’s monthly newspaper, ensuring that quality be maintained and further improved, to liaise with the operations manager on the contents and production of each issue, to provide support services to the club’s marketing department and various other duties as directed from time to time. She was to be paid $14 per hour which included an over award payment to compensate her for Saturday and Sunday work and shift penalties if required and her working hours would normally be 8 a.m. to 12 noon Monday to Friday; annual leave at the rate of 2 weeks per year of service in addition to recognised public holidays with leave accumulated in one year to be cleared during the following year and not carried over into subsequent years. She was to be entitled to be paid sick leave - superannuation contributions were to be made. The plaintiff in my view unreasonably rejected this offer. As I have already mentioned, in August 1994 she was fit enough to engage in disco dancing at a city night club for a number of hours and on that occasion, despite a fall, able to pick herself up and continue her dancing. I am satisfied that during her work for the defendant under the work assessment schemes and thereafter plaintiff had demonstrated her ability to work at her job for 20 hours per week. In my view the offer contained in the letter of 10 January 1995 was genuine.
Had plaintiff accepted this offer she would have earned approximately $14,560 per annum. Tax at 20% would have been approximately $2,912 leaving a net annual income of $11,648. Thus in the period 10 January 1995 to 14 July 1998 plaintiff would have earned nett after tax some $40,768 ($11,648 x 3.5 years). In my view the $120,000 odd for which the plaintiff contends must be substantially reduced. I would assess the component for impairment of earning capacity to date at $70,000 and in arriving at that figure I have made some allowance for plaintiff not having worked at all during part of the period from 31 July 1993 to date.
Loss of Superannuation
The plaintiff will have suffered some loss of superannuation contributions by her employer in the five years since August 1993. In the year ended 30 June 1994 the rate of contribution was 3%. In the year ended 30 June 1995 that rate was 4%. In the year ended 30 June 1996 it was 5% and in the two succeeding years it was 6%. The average for these 5 years is 4.8%. The $70,000 loss is nett of tax. I have calculated gross income to produce that figure at $87,500 on the basis that a 20% tax rates was applied to produce $70,000.
I propose to allow $4,200 being 4.8% of $87,500 for loss under this head in the five years since August 1993.
There will be no damages for loss of superannuation thereafter.
Future Impairment of Earning Capacity
For reasons already stated there will be no damages on this head.
Special Damages
In respect of this second incident the parties agreed that if the issue of liability were determined in favour of the plaintiff then the plaintiff was entitled to recover the following sums paid on her behalf by the Workers’ Compensation Board of Queensland:-
1.Hospital expenses   $3,770.00
2.Medical expenses  7,921.97
3.Other expenses  $582.34
4.Rehabilitation expenses  $3,740.21
Total  $16,014.52
In addition and on the same basis as above set out the defendant admits the following further items of special damage:-
Pharmaceutical expenses  $800.00
Travelling expenses  1,052.80
Medical expenses relating to treatment for injuries  1,152.70
$3,005.50
The total special damages are therefore $19,020.02.
As to interest, the parties have agreed ( again on the same basis) that of the above $3,005.50 interest should be allowed on $1,952.70 from 30 July 1993 to date of judgment at one half of whatever commercial rate I adopt - 5% or 6% as the case may be.
Fox v. Wood principle
The parties agreed that subject to the issue of liability being determined in favour of the plaintiff the plaintiff is entitled to recover $5,181.65 being the tax paid on gross weekly compensation received by the plaintiff from the Workers’ Compensation Board of Queensland between 19 August 1993 and 12 July 1994 and 10 January 1995 to 28 February 1995.
Griffiths v Kerkemeyer Claim
The plaintiff’s mother Mrs McMahon gave evidence of having resided with the plaintiff and the plaintiff’s children for a period of 4 to 6 weeks which overlapped the plaintiff’s time in hospital for back surgery. The amount claimed included cleaning (2 hours per week) vacuuming (1 hour per week) washing and ironing (24 hours per week) cooking (14 hours per week) shopping (2-3 hours per week) normal type housework, dressing, attending to personal hygiene of the plaintiff and transport (2 hours per week). The amount claimed for this period is $1,520 being 40 hours per week for 4 weeks at $9.50 per hour. The plaintiff’s mother resided at the Gold Coast. The claim for her mother’s gratuitous care and assistance extended from a short time after the surgery until April 1994 during which period it was said her mother stayed with her and her children for several days each week rendering assistance, although there was a break from December 1993 until about 24 January 1994. It was said that during this second period the plaintiff’s mother rendered assistance with shopping (2-3 hours) cooking (6-7 hours) cleaning (6-8 hours) and washing and ironing (4 hours). It is said she continued to assist with providing transport and a claim is made for 20 hours assistance per week at $9.50 per hour over 24 weeks resulting in the sum of $4,560.
Next it is said that in the period from 1 May 1994 to December 1996 the plaintiff’s mother continued giving assistance with ironing and washing (10 hours per week) family shopping and transport - the plaintiff being unable to drive a car by reason of her back injury. The claim is made during this period for 10 hours assistance per week at $9.50 per hour for 76 weeks giving a total of $7,220 and 10 hours per week at $10 per hour for 52 weeks giving a total of $5,200.
In addition to the plaintiff’s mother, the plaintiff’s daughter Leah Kelly said that from about September 1993 she provided 6-7 hours assistance per week and that since December 1996 she has provided assistance with transport. In December 1996 she obtained a driver’s licence. An amount for Leah Kelly is claimed in the sum of $12,350 being $50 per week over 4.7 years. Leah Kelly told me that her mother stopped doing things such as vacuuming, sweeping, mopping, hanging out the washing.
I am satisfied that she did help her grandmother during the time that her mother was in hospital but not to the extent she claimed. Leah was 14 years old at the time her mother had her surgery. Nevertheless, despite the evidence of Leah and her grandmother I am far from satisfied that from early 1994 the plaintiff had the need for the extent of the assistance of which these two witnesses spoke and which they said they filled. Again, as I have already mentioned, the plaintiff was as I find able to lead quite an active life, including by August 1994 disco dancing and in my view her activities in this field belie the case of need which the plaintiff has, by her mother and her daughter attempted to make out.
In the circumstances I propose to fix a component for past gratuitous care and assistance by plaintiff’s mother made up as follows:-
a.A period of 4 weeks which included the period from shortly before the plaintiff had her surgery until shortly afterwards - value of care provided by mother  $1,520.00
b.Value of care provided by mother between late September 1993 to
mid-April 1994 (less some 4 weeks in December-January)  3,648.00
c.Value of care provided by mother between 1 May 1994 to December 1996 -
including transport - I allow 5 hours per week @$9.50 per hour for 76 weeks
and 5 hours per week @$10 per hour for 52 weeks   6,210.00
$11,378.00
The reduction in headings b and c is due primarily to my view that the plaintiff’s needs for assistance were not as great as she would have had me believe.
From about 1 October 1993 until April 1994, I consider the attendance of Mrs McMahon reasonably necessary for assistance with cooking, cleaning, washing and ironing as well as providing transport. I have allowed 16 hours per week at $9.50 per hour over 24 weeks - $3,648.
In respect to the period from 1 May 1994 to December 1996 (in which latter month Leah obtained her licence) I have reduced the hours claimed for the mother because I am also satisfied that Leah gave some assistance during this period and the plaintiff’s need for help was not as great as claimed.
So far as concerns the assistance given by Leah Kelly I propose to allow $19.00 per week on the basis that she provided some necessary assistance (for 2 hours per week) in cooking, ironing, washing, housekeeping from September 1993 up to August 1994. I am satisfied that from December 1996 she did provide some assistance with transport and propose to allow 1 hour per week. However, I should say that I am far from satisfied and do not find that the plaintiff was incapable of driving a motor car after say April 1994.   As appears from Exhibits 33 and 34, plaintiff does have some need for regular postural changes but I find that that need does not effectively prevent her from driving a car.   although I find that it probably does adversely effect her if she wishes to drive the car on a continuous journey for more than one hour. For the assistance given by Leah Kelly I assess $1,822 made up as follows:-
(a)     September 1993 - December 1996 - 48 weeks @$19 pw  $912.00
(b)     December 1996 - August 1998 - 88 weeks @$10 pw  880.00
  $1,792.00
Future Care and Assistance
There will be none for reasons which I have already given.
Future Expenditure on Medication
For reasons which I have already given there will be none allowed.
In the result I assess the plaintiff’s damages as follows:-
First incident
General damages  $900.00
Special damages  130.05
Total                 $1,030.05
Second incident
Pain suffering and loss of amenities - past  $20,000.00
Pain suffering and loss of amenities - future  nil
Impairment of earning capacity - past  70,000.00
Impairment of earning capacity - future   nil
Loss of superannuation - past  4,200.00
Loss of superannuation - future  nil
Special damages  19,020.02
Fox v Wood principle  5,181.65
Griffiths v Kerkemeyer claim - past
·Mrs McMahon  11,378.00
·Leah Kelly  1,792.00
·claim for future  nil
Claim for future expenses on medication  nil
Total             $131,571.67
Interest
On the matter of special damages the parties have agreed that interest should be allowed on the sum of $1,952.70 from 30 July 1993 to date of judgment at one-half of the commercial rate of interest adopted by the court for the purpose of calculating economic loss (i.e. 5% or 6% as the case may be). This agreement was subject to the issue of liability for the second accident being determined in favour of the plaintiff. I would award that interest at the rate of 2½ per cent.
On the matter of interest on past economic loss I take into account the sum of $25,125.40 paid to the plaintiff by way of weekly compensation (see letter 15 May 1995 from Workers’ Compensation Board to Bennett Carroll and Gibbons). This sum of $25,125.40 was paid as to $22,879 in the year ended 30 June 1994 (see plaintiff’s tax return) and the balance thereafter but by 28 February 1995. In addition, the plaintiff received regular Social Security payments from 9 March 1995 to 20 July 1998. These totalled $32,078.10 and represented payments for plaintiff’s inability to work. I also take the $32,078.10 into account for purposes of calculating interest. The total of $25,125.40 and $32,078.10 is $57,203.50 and I deduct this from $70,000. The balance I round out to $13,000 and I would, if required, award interest on past economic loss of $13,000 for 3.416 years - at the rate of 5% from 1 March 1995 to 31 July 1998.
On the matter of interest on past pain suffering and loss of amenities I would deduct from the amount which I have assessed viz $20,000 the amount of $10,902 paid to the plaintiff by the Workers’ Compensation Board for permanent partial disability. This payment was made on 28 February 1995. I would, if required, award interest on $20,000 at 2½% from 31 July 1993 to 28 February 1995 and on $9,100 at 2½% from 28 February 1995 to 31 July 1998.
Conclusion
In this action I give judgment for the defendant against the plaintiff. I shall hear from the parties on the question of costs.