Lewis v Woolworths Limited
[2018] ACTSC 200
•1 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lewis v Woolworths Limited |
Citation: | [2018] ACTSC 200 |
Hearing Dates: | 5-8 June 2018 |
DecisionDate: | 1 August 2018 |
Before: | Mossop J |
Decision: | See [110] |
Catchwords: | TORTS – NEGLIGENCE – Breach of duty admitted – whether defendant’s negligence caused harm – workplace accident – back pain following accident – aggravation of asymptomatic back condition – detrimental psychological impact of chronic pain – held workplace injury led to significant and long-term aggravation of back condition and with pain psychologically corrosive –significant uncertainty affecting assessment of damages – damages awarded – future economic loss assessed by way of a buffer |
Legislation Cited: | Court Procedure Rules, r 1203, sch 1 cl 1.2(1) |
Parties: | Jessica Lewis (Plaintiff) Woolworths Limited (Respondent) |
Representation: | Counsel B Roberts SC and R Clynes (Plaintiff) M Windsor (Respondent) |
| Solicitors United Legal (Plaintiff) King & Wood Mallesons (Respondent) | |
File Number: | SC 158 of 2017 |
MOSSOP J:
Introduction
The plaintiff was injured while working at the Big W store in Gungahlin which was operated by the defendant. Breach of duty has been admitted. This case is an assessment of damages.
Background
The plaintiff was born in 1996. She attended Year 7 at Monaro High School in Cooma, Years 8 to 10 at Gold Creek High School and Years 11 and 12 at Gungahlin College. While at school she worked as a casual employee at McDonald’s and Domino’s Pizzas. In February 2013, she commenced work at Big W in its Gungahlin store. She did not work set hours. She was described as a “recovery associate” who would spend three hours returning items to the shelves and cleaning them up.
She completed Year 12 in November 2013. In December of that year she was employed on a permanent part-time basis with Big W. That employment required her to work a minimum number of hours with the option of working extra hours if they were offered.
Since Year 10 her ambition had been to become a paramedic. The Australian Catholic University (ACU) offered a course specifically targeted at paramedics, namely a Bachelor of Paramedicine/Nursing. She did not achieve a sufficiently high Australian Tertiary Admission Rank (ATAR) to get into this course. However, she understood that she could do a science degree with anatomy units and then, if her results were adequate, transfer to other university courses. In February 2014, she enrolled in a Bachelor of Medical Science at the University of Canberra but, prior to incurring any HECS-HELP (Higher Education Contribution Scheme-Higher Education Loan Program) debt, deferred her studies until the commencement of second semester. She recommenced university in August 2014.
She completed her first semester of the Bachelor of Medical Science with two distinctions and a credit. She withdrew from one unit. She managed to do this whilst maintaining her employment at Big W which required her to work on Friday and for the full day on Saturday and Sunday. She also regularly attended the gym, going five or six times a week.
She enrolled for her second semester and commenced that in February 2015. She was enrolled in four units.
On Anzac Day 2015 she was assaulted by her stepfather and, as a result, moved out of the house where she had been living with her mother and stepfather. Following this she increased her hours of work to 30 hours per week in order to increase her capacity to support herself. She did not sit the exams which were held in the first two weeks of May 2015 and, as a consequence, failed all of the subjects in which she was enrolled that semester.
In August 2015 she applied for early entry into the paramedics degree at the ACU and was accepted into that course in October 2015. She was very happy to have been accepted into this course. Her mother described her as “excited”, “over the moon”, the plaintiff saying “I just can’t believe it, my dream has come true.” She was due to commence in February 2016.
The accident
On 13 January 2016, the plaintiff was working in the back dock area of the Big W store. Her job involved taking boxes containing printers from a work cage and stacking them on a pallet that was already partially loaded with stationary. While she was reaching into the work cage to pick up a printer, a “walkie stacker” forklift being used to carry a pallet loaded with gazebos struck the work cage. As a result of being struck, the work cage moved and struck the plaintiff in the shins. The plaintiff stepped backwards and extended her back. She said “I jerked it real quick”. This caused her immediate pain. The pain was in her lower back and it also radiated down the back of legs. A work colleague got her an ice pack.
Following the accident
The plaintiff attended the Gungahlin Medical Centre on 14 January 2016 and consulted a Dr Tausif. Dr Tausif’s records show that the plaintiff was complaining about severe pain which travelled down her right leg and was made worse by movement. On examination she was tender over the L4/L5 joint. She had a restricted range of motion and a slight limp. She was given a cream and antibiotics to treat the burn on her back caused by the ice pack. The doctor provided her with a medical certificate.
The plaintiff provided the medical certificate to her employer. Her employer refused to accept the medical certificate because she had not attended the doctor in the company of a representative of the defendant.
On 15 January 2016, the plaintiff attended Dr Tausif again who provided her with a more detailed WorkCover medical certificate. She was also prescribed Voltaren and given referrals for a computed tomography (CT) scan and to see a physiotherapist.
A few days after the accident the plaintiff, at her mother’s suggestion, travelled to the Central Coast to stay with, and be looked after by, her mother. The plaintiff drove herself there. She found it necessary to stop on several occasions on the way there because of the pain in her back.
Her mother took her to have the CT scan. The report of that scan included:
L5/S1: There are bilateral pars defects with minor anterolisthesis of approximately 3mm of L4 [should be L5] There is no significant uncovering of the disc with the central canal and exit foramina appearing patent. No significant facet degenerative changes are appreciated.
Comment:
There is mild anterolisthesis of L5 on S1 with some uncovering of the L5/S1 disc but this is not associated with any significant impingement of the exit foramina or the central canal.
The same day she also attended a physiotherapist in Wallsend. The physiotherapist’s notes record that she could not sleep and could not sit but that walking was okay within limits. The physiotherapist was given the films from the CT scan and did not provide further treatment. The physiotherapist did, however, provide a letter for her general practitioner with some recommendations.
The next day the plaintiff returned to Canberra. Once again, she drove herself and stopped along the way. Her mother had suggested that she see a Dr O’Neill at Crace. She did so on 22 January 2016. The doctor’s notes record that she was complaining of ongoing lumbosacral pain and that she was using Panadeine Forte to help her sleep at night. She felt some sharp discomfort radiating down both legs. The doctor prescribed Mobic, Norgesic and Endone and gave her a referral to a specialist and a physiotherapist.
On 25 January 2016, the plaintiff sought Dr O’Neill’s assistance with obtaining an early appointment with a specialist orthopaedic surgeon Dr Tsai. The plaintiff had contacted Dr O’Neill saying that she was “still in a great amount of pain and it’s mostly nerve pain and it’s going down the back of my legs making it very painful and hard to walk”.
She consulted Dr Tsai on 27 January 2016. The doctor recorded that she was complaining of pain in her lower back, radiating down both legs with tingling. He recorded that she said that she could walk but that it hurt to sit or lie down and that analgesics had not helped. The doctor recommended a magnetic resonance imaging (MRI) scan and prescribed Lyrica.
The MRI was carried out on 29 January 2016.
She was reviewed by Dr Tsai on 2 February 2016. The doctor noted that she could not tolerate Lyrica. The plaintiff explained that it made her “dopey”. He also appears to have given her some advice about the prospect of a career as a paramedic if she had a chronic back issue. The doctor indicated that she would require physiotherapy and she commenced that physiotherapy the same day. Between February and May 2016, when the funding from the workers compensation insurer ceased, she attended 21 sessions of physiotherapy.
The next day, 3 February 2016, she was notified by the University of Canberra that she had been accepted into a law degree.
When she went back to Dr O’Neill on 5 February 2016. Dr O’Neill recorded “teary as Dr Tsai has mentioned that a career as a paramedic may be difficult if chronic back issue”. Dr O’Neill prescribed Tramadol and Voltaren and certified her unfit for work.
The plaintiff obtained a second opinion from Dr Michael Ow-Yang on 18 March 2016. At that stage she was complaining of severe and disabling low back pain radiating to her left lateral thigh and lateral calf. Dr Ow-Yang suggested L5/S1 facet radiofrequency denervation and steroid injection and a further left L5 periradicular injection. On 21 March 2016, Dr Ow-Yang sought approval from the workers compensation insurer for these procedures but no approval was ever forthcoming.
On 1 April 2016, the plaintiff attended Dr O’Neill with a representative of a rehabilitation service provider engaged by the workers compensation insurer. The plaintiff reported that her pain was increasing again but that she was taking Endone and this helped. She was permitted to return to restricted duties of three hours a day, five days per week, avoiding bending, twisting and lifting more than 2kg.
On 2 April 2016, the plaintiff was involved in a minor motor vehicle accident in which her vehicle was sideswiped by a passing car. She suffered no acute increase in pain immediately following the accident but woke with increased pain in her back the next day. The pain radiated to the back of her right thigh to the knee and she had pain and tingling in her left foot.
The plaintiff returned to work on 6 April 2016 in accordance with a return to work program authorised by Dr O’Neill.
On 28 April 2016 she consulted Dr O’Neill again and complained that her supervisor was not allowing her to have regular breaks and was requiring her to do repetitive tasks. The next day there was a consultation with Dr O’Neill which was attended by both a representative of the insurer’s rehabilitation service provider as well as by the plaintiff’s solicitor.
On 4 May 2016, the plaintiff was examined by Dr Raymond Wallace, an orthopaedic surgeon, at the request of the defendant’s insurer. As a result of the report prepared by Dr Wallace, the plaintiff ceased getting any workers compensation payments or any medical assistance.
After the plaintiff was notified that her workers compensation payments would cease on 18 July 2016, the plaintiff saw Dr O’Neill and requested an increase in working hours to five hours a day, five days per week in order to accommodate her financial circumstances. She also saw Dr Tsai who expressed the opinion that there was “no basis” for Dr Wallace’s conclusion that the back pain had resolved within six weeks of the injury. He recommended ongoing support from a multidisciplinary team led by a pain management physician. As a result of the insurer’s decision following Dr Wallace’s report, this treatment was not available to the plaintiff.
In August 2016, because of her financial situation, the plaintiff requested Dr O’Neill to change her certificate to increase her limit from five hours per day up to nine hours per day so that she could get back to her 30 hour contract.
She resigned from her employment on 4 September 2016 because she felt that she could not return to her full-time duties as was expected of her.
In the middle of 2015 she had transferred to a Bachelor of Nursing degree at the University of Canberra. This course was still consistent with an intention to ultimately transfer into the paramedicine degree at the ACU. However, at the time of or soon after transferring in August 2015, she had applied for and been granted leave in the second semester of 2015. The reason for that was identified as “Just need to take a break”. She discontinued that course in November 2015 after she was notified that she had a place in the Bachelor of Paramedicine degree at the ACU.
Following the accident and her consultation with Dr Tsai on 2 February 2016, she decided that she would not commence her paramedicine course. On 8 February 2016, the plaintiff advised the ACU that she would not commence the paramedicine course.
However the plaintiff did commence study for a Bachelor of Laws. She appears to have been notified of the offer for this degree shortly prior to the commencement of first semester in 2016. Shortly after accepting her offer of a place in the Bachelor of Laws degree she made an enquiry about the possibility of studying a Bachelor of Midwifery but was told that she would need to apply for the 2017 semester one intake.
The plaintiff completed two out of four subjects in her law degree in the first semester of 2016. She enrolled for her second semester of law but found that she was unable to continue study because of pain and interference with her ability to concentrate.
She commenced employment with Amalgam Free Dental Care clinic in Gungahlin on 29 September 2016 and worked there until 12 November 2016. On 7 December 2016 she obtained employment with Rydges Hotel as a receptionist but resigned from that position on 24 January 2017 because she was suffering from an increase in back pain associated with prolonged standing. At about that time she settled the workers compensation proceedings in relation to her employment with the defendant and obtained a sum of approximately $52,000. She chose not to seek further employment for a period following her resignation from Rydges Hotel in order to see if her back condition could recover. On 21 June 2017 she obtained employment with the Florey Medical Centre as a receptionist. She continued in that employment until 29 November 2017 when she resigned to take up a position as Practice Manager at the Charnwood Medical Centre. She has continued in that job up until the trial. This work allows her a degree of flexibility in relation to whether she sits or stands and is manageable with her back condition.
Medico legal evidence
There were essentially two areas of dispute on the expert medical evidence. The first was whether or not the plaintiff’s condition was causally related to the incident that occurred on 13 January 2016. On that issue, of the medico-legal doctors, Dr David Champion, Dr William Patrick and Dr Peter Conrad concluded that her current pain condition was causally related to that incident and Dr Wallace and Dr Casikar concluded that it was not.
The second issue was whether or not the plaintiff was currently suffering from an adjustment disorder or whether any depressed mood was appropriately related to her present pain conditions. On that issue there was a difference of opinion between Dr Wasim Shaikh and Dr Christopher Canaris.
Dr Champion
Dr Champion prepared three reports dated 8 June 2016, 17 November 2016 and 14 February 2018. He took a very detailed history and conducted an examination. He said:
There is really no doubt that the pars interarticularis defects and spondylolysis was a pre‑existent condition. There may have been minimal pre-existent spondylolisthesis.
He concluded that the plaintiff had an injury-provoked chronic lumbosacral spinal pain disorder with pain especially related to the L5/S1 mobile segment where there is spondylolisthesis and compromise on the neural foramina at L5/S1. His explanation of this was as follows:
Not only did the described biomechanical stress, the work-related injury of 13 January 2016, induce low back pain and bilateral radicular symptoms, but on the balance of probability aggravated the lumbar disc at L5/S1 causing an increase in the tendency to encroach on the intervertebral foramina at L5/S1 from which the L5 nerve roots emerge. The appearance of the L5/S1 intervertebral disc referred to as “uncovering” is typical and can give the impression, even when the disc is internally intact, of some degree of protrusion, but in Jessica’s case I am firmly of the view that there has been internal disruption of the L5/S1 intervertebral disc with some protrusion towards the intervertebral foraminae, especially on the left side.
He said that the longer term prognosis appeared concerning because once a spondylolisthesis has become chronically painful, long-term pain is likely especially when there is nerve root involvement. It was unlikely that the back and leg symptoms would resolve in the near future and likely that chronic pain and associated disability was most likely to persist in the long-term.
Dr Champion’s second report responded to a question about the plaintiff’s capacity to undertake a law degree. His third report provided an update on the situation as at 14 February 2018. He recorded some changes evident upon examination in her severity/intensity of pain and extent of restriction. In this report he provided some comments on the report of Dr Wallace. He said in relation to the report of Dr Casikar that his examination was brief and clearly not sufficiently sensitive to elicit the physical signs that he had found. He also provided some comments upon a report of an occupational physician, Dr Brett Opperman (which was not it put into evidence by the defendants) whose prognosis appears to have been persistent mechanical lower back pain in the longer term at least to some degree, and that the plaintiff would remain partially incapacitated for employment. Dr Champion’s opinion as to causation remained unchanged. He expressed it as follows:
That is the workplace incident on 13 January 2016 was the substantial causal influence on her back and lower limb pain, paraesthesiae and disability, the injury having been superimposed on pre-existent spondylolisthesis at L5/S1 which had been associated with only very minor intermittent symptoms.
This seems to accept the proposition that the spondylolisthesis was, at least to a minimal extent, a pre-existent condition.
In cross-examination he accepted that the pars defect was long-standing and predated January 2016. He did not agree with the proposition that prior to January 2016 there was some evidence of spondylolisthesis. He said there was no way of telling.
Dr Patrick
Dr Patrick, who is described as “General & Vascular Surgeon, Trauma Surgeon, MedicoLegal Specialist”, is a fellow of the Royal Australasian College of Surgeons. He examined and reported on the plaintiff in two reports, the first dated 4 July 2016 and second 19 March 2018. In his first report he stated that:
I believe the likelihood is that this [hyperextension injury] has caused a pre-existing but virtually asymptomatic and unknown developmental lytic spondylolysis at the lumbosacral level to become immediately significantly symptomatic and it is clear that the problematic symptoms have not resolved.
The effect of his evidence was that there was either spondylolysis or a very minor spondylolisthesis which was rendered symptomatic by the work incident.
The oral evidence of Dr Patrick was that 10 to 11 per cent of the population suffered from spondylolysis and of that number only 25 per cent would have symptoms. In other words, the spondylolysis would commonly remain stable and not symptomatic.
Dr Conrad
A report of Dr Conrad, a surgeon, dated 4 October 2017 was admitted into evidence. He was not available to give oral evidence or be cross-examined. He had examined the plaintiff at the request of the plaintiff’s solicitors. He recorded his opinion that the accident made a previously asymptomatic back condition become severely symptomatic and that the plaintiff had ongoing back pain which was persistent and made worse by standing, sitting, bending or lifting. He recorded that the plaintiff currently needed conservative treatment. He thought that she will eventually need decompression and fusion and indicated that such surgery at present day cost of $25,000 to $30,000 and would require that she be off work for three months. He considered that her prognosis for recovery was poor and made a variety of adverse comments about the report of Dr Wallace (to the effect that certain statements of his “totally [lack] credibility”).
Dr Canaris
Dr Canaris, a psychiatrist, reported to the plaintiff’s solicitors in March 2017. He recorded the plaintiff as “somewhat abrasive” who “spoke rapidly with an impatient, irritable, and abrasive edge”. He described her affect as “restricted and permeated with anger”. He concluded that her overall presentation was consistent with an adjustment disorder with depressed mood which appeared entirely attributable to her pain and attendant limitations. He said:
Chronic back pain generally and chronic back pain associated with conditions such as spondylolisthesis and foraminal stenosis particular tends to be quite psychologically corrosive over and above the understandable distress emanating from the consequent losses and limitations reported by your client.
Dr Wallace
Dr Wallace is an orthopaedic surgeon. His report dated 16 May 2016 was tendered by the defendant and he gave oral evidence. Dr Wallace’s report was given to the workers compensation insurer well prior to the commencement of proceedings. The briefing material and letter of instructions were not in evidence. Notwithstanding that it was prepared well prior to the commencement of the proceedings, it did include the statement required by r 1203 of the Court Procedures Rules.
Dr Wallace’s area of expertise is disclosed in the curriculum vitae (CV) which was tendered. That describes him as an orthopaedic surgeon in private practice:
1990 to date
Specialising in knee surgery
Medico-legal consultation.
The CV says nothing else about any aspect of his practice in that period, leading to the conclusion that it was confined to knee surgery and consultation for medico-legal purposes. The description of his practice does not disclose any particular experience in the treatment of pain conditions or spinal conditions outside a medico-legal context over the last 28 years.
In relation to the clinical examination conducted upon the plaintiff, Dr Wallace said “She had inconsistencies on examination”. These “inconsistencies” were not then explained. Only much later in his report did he indicate that the plaintiff “had significant discrepancy in straight leg raise between the supine and sitting positions.” This is the only inconsistency identified. The significance of the described inconsistency is not explained in the report. It is, therefore, not clear, at least as far as the Court is concerned, why it was mentioned. Such a comment may have been useful to the insurer to whom he was reporting but it was not useful to the Court.
His diagnosis was of:
1.Musculoligamentous strain lumbar spine-now resolved.
2.Aggravation of pre-existing lumbar spondylolisthesis L5/S1 level-now resolved.
Having stated that conclusion, his reasons in relation to causation may be summarised as follows:
(a)“The mechanism of injury she described is not consistent with any significant lumbar spinal pathology.”
(b)The plaintiff did not sustain any direct injury to her lumbar spine (in the sense of being physically struck) nor fall to the ground.
(c)There was no evidence of acute pathology at her lumbar spine on CT or MRI investigation carried out shortly after the accident.
(d)“Her current complaints of widespread lumbar spine and lower limb symptoms cannot be explained on the basis of her work incident in January 2016.”
(e)“Her lumbar spinal injury of 13 January 2016 has resolved. At that time, she suffered a musculoligamentous strain at her lumbar spine with temporary aggravation of pre-existing lumbar spondylosis at the L5/S1 level which settled within six weeks of this incident.”
The report makes no attempt to explain the continuity of symptoms or provide a rationale for the six week period identified as the period during which the symptoms would have resolved. Dr Tsai, the plaintiff’s treating orthopaedic surgeon, said in relation to Dr Wallace’s statement that the back pain had resolved within six weeks of the injury that “There is no basis for this conclusion.” Dr Conrad’s comments have been referred to above (at [48]).
Although the report does not disclose the reasoning, it appears to have been that the mechanism of injury was consistent only with a minor injury. Therefore, notwithstanding ongoing complaints of pain, any consequences of the injury had resolved within six weeks because that is the period of time one would expect minor injuries to resolve within.
By the time of his oral evidence Dr Wallace had read the report of Dr Champion. Dr Champion recorded that the plaintiff had “occasional soreness which responded readily to Dencorub” and that “The occasional incidents of low back soreness have mainly occurred in the last 2 or 3 years”. The longest duration of such episodes of soreness “was only a few hours” and “Never more than a day”. She never saw a medical practitioner in relation to them. In his oral evidence, Dr Wallace interpreted Dr Champion’s report as stating that the plaintiff “had ongoing lumbar spine discomfort for three years prior to this incident” and he thought that was “highly significant”. He said “she had back pain prior to this incident, it’s as simple as that.” There are two points to make about this evidence. First, the interpretation that the plaintiff had “ongoing lumbar spine discomfort for three years prior to this incident” is not a reasonable or fair summary of the relevant part of Dr Champion’s report. Second, the fact that Dr Wallace seized so readily upon an overstated summary of Dr Champion’s report gave me the impression that he was seeking out evidence of facts that would support his opinion of a lack of causation rather than fairly and dispassionately complying with his duty under cl 1.2(1) of sch 1 of the Court Procedures Rules.
The unfortunate impression arising from his characterisation of Dr Champion’s report in relation to the plaintiff’s pre-existing pain is reinforced by the terms of his expert report. His report largely focused on the forensic issue of causation but does not attempt either to explain what might be causing the pain suffered by the plaintiff or identify that the expression of an opinion on that issue was beyond the doctor’s core area of expertise (even though the terms of his CV would suggest that there is a real possibility that that is the case). It is important to note that notwithstanding the tone of his written report, which referred to inconsistencies in presentation, the doctor in his oral evidence disavowed the suggestion that he had simply not believed the history of ongoing pain given to him by the plaintiff. Thus, the position at the time of his report involved an acceptance of the plaintiff’s ongoing pain as truthful without any explanation as to why that pain might have been occurring and no suggestion that the issue of why the pain was occurring was beyond the expertise of the doctor. Consistent with his incapacity to provide an explanation for the cause of the plaintiff’s pain during the course of his cross‑examination, he said:
I mean, the problem is that the source of back pain is in 95 per cent of cases impossible to locate. So it's very difficult to say exactly what at any particular time is causing somebody's back pain.
If that statement truly reflects his opinion then it is unsurprising that he was unable to determine the cause of her pain and proceeded on the basis of the assumption that it should have, and therefore did, recover within six weeks.
Notwithstanding purporting to have believed the plaintiff’s complaints of ongoing pain, the prognosis in his report was that “She has a good prognosis for ongoing stable function at her lumbar spine”. That would make sense if he both found that her injury had resolved and disbelieved her complaints of ongoing pain but it did not make sense in a context where he believed her complaints of ongoing pain. If there were genuine complaints of ongoing pain caused by either spondylolysis or spondylolisthesis then that would be inconsistent with there being a good prognosis for ongoing stable function at a lumbar spine.
In oral evidence, the doctor placed a great deal of significance on the results of the bone scan which occurred on 5 May 2016, after he had examined the plaintiff. That scan demonstrated no focal increased uptake in the lumbar spine or features of recent fracture, enthesopathy or significant inflammatory arthropathy in the facet joints. The report indicated that the bilateral L5 pars defects were not associated with increased activity and were therefore long-standing. Dr Wallace considered that this evidence was significant because “if she had’ve had a significant injury at that level, her bone scan would be hot”. It is not easy to assess the significance of this point. Dr Champion had referred to the bone scan report and agreed with its contents in his report of June 2016. Although Dr Champion was asked some questions about the bone scan results, it was not put to him that the bone scan was inconsistent with his opinion. His evidence was that “you can have injury without increased uptake” and that an increased uptake “reflects osteoblastic activity, the laying down of new bone by the cells called osteoblasts, and generally bone scans are sensitive but they’re certainly not specific”. The questions did not indicate that the slippage which constituted the spondylolisthesis occurred before January 2016. Rather he said “there’s no way of telling”.
The impression that I obtained from the defensive and argumentative manner in which Dr Wallace gave his evidence was consistent with the impression gained from his report, namely, that the doctor had too readily reached the conclusion that there was no causal link between the pain and restriction suffered by the plaintiff when he saw her in May 2016 in circumstances where he purported to accept the validity of her complaints and failed to provide any reasonable explanation for her then current condition. Insofar as there is a conflict between the evidence of Dr Wallace and that of Dr Champion, Dr Patrick and Dr Conrad, I prefer the latter to the former.
Dr Casikar
Dr Casikar adopted a similar approach to Dr Wallace, although his report is somewhat more nuanced and contains fewer inconsistencies than Dr Wallace’s. His report was admitted and he did not give oral evidence. He was to give oral evidence but, by reason of shortage of time and difficulties with his availability, the parties agreed that his report could be tendered and no Browne v Dunn point would be taken in relation to any failure to cross‑examine him. The diagnosis made by Dr Casikar was of a soft tissue injury. He said that “These kinds of injuries normally resolved in about 4 to 6 weeks.” He said “I find it difficult to indicate that her present problems are related to the injury that occurred on 13 January 2016. I have no way to support the opinion that this is related to the injury that occurred in January 2016”. He said that:
The prognosis of this condition, as far as the work related injury is concerned, is good. However, Ms Lewis exhibits significant emotional issues which are probably responsible for her symptoms. Therefore, the prognosis of her complaints of back pain is likely to be poor.
He suggested referral to a psychologist. Thus, Dr Casikar’s approach appeared to be that the imaging and evidence on examination was not sufficient to allow a conclusion of causation but that there may be a psychological explanation for the complaints of pain. He did not express any opinion as to the relationship between any psychological condition and the incident, although he appears to have concluded that her continued symptoms were not due to the workplace injury. The best explanation that he appears to have for her ongoing complaints of pain was an emotional non-organic cause not related to the workplace injury. If the plaintiff’s current complaints of pain are accepted as genuine then the report of Dr Casikar leaves that pain as being of uncertain origin notwithstanding that they are temporally related to the accident on 13 January 2016 and have continued since then.
Dr Shaikh
The uncertainty surrounding Dr Casikar’s suggestion that there may be “emotional non organic” causes is increased by the subsequent report of Dr Shaikh, a consultant psychiatrist engaged by the defendant. Dr Shaikh reached the conclusion that on the balance of probabilities she did not and had not suffered from an adjustment disorder but rather presented with expected psychological complaints of her physical condition.
Conclusion
I accept that the reports of ongoing pain made by the plaintiff to each of the doctors that she saw were made honestly. That appears to have been the position of Dr Wallace (in his oral evidence even if he suggested otherwise in his report) and Dr Casikar (even though he considered that the reports of pain may have a psychiatric cause). It is certainly consistent with the opinions expressed by both Dr Champion, Dr Patrick, Dr Canaris and Dr Shaikh.
Further, I prefer the evidence of Dr Champion, Dr Patrick and Dr Conrad to that of Dr Wallace and Dr Casikar. That is largely because Dr Champion, Dr Patrick and Dr Conrad’s evidence provides a more likely explanation for the ongoing cause of pain. The history given by the plaintiff is consistent with the accident involving a sudden action which rendered symptomatic a previously asymptomatic spondylolyis or mild spondylolisthesis. Dr Wallace’s reasons for suggesting a recovery were, for the reasons I have given above, unconvincing. Similarly, Dr Casikar in combination with the evidence of Dr Shaikh does not provide an explanation for the ongoing pain. It is more likely than not, having regard to the history of no or minimal back pain prior to the accident, the sudden and dramatic onset of significant pain following the accident and its subsequent continuation, that the accident remains the cause of the plaintiff’s pain. Each of Dr Champion, Dr Patrick and Dr Conrad appear to recognise that there was spondylolysis present prior to the accident and may have been some degree of asymptomatic spondylolisthesis. Precisely what the situation was is not possible, on the evidence, to determine but it does not matter for the purposes of this case. The difference between spondylolysis and a minor spondylolisthesis is not significant where the accident caused a significant aggravation of her condition given that it had been previously asymptomatic and unknown.
The difference between the psychiatric evidence was not significant. The plaintiff’s mother had given evidence that she noticed a change in the plaintiff’s personality in that she had become “very cranky” and “had no patience”. She became intolerant of her younger brother and sister since the accident. Consistent with this evidence, Dr Canaris, obviously being influenced by his perception of the plaintiff’s anger and abruptness, diagnosed an adjustment disorder. Dr Shaikh instead explained the plaintiff’s situation as not involving an adjustment disorder but instead as “expected psychological complaints of her physical condition” and “some frustration in relation to her residual physical complaints”. Whichever opinion is correct, it is clear that the plaintiff’s psychological condition is a consequence of the injuries caused in the accident and it is not significant whether her psychiatric condition involves an abnormal or excessive reaction to an identifiable stressor or merely the expected response to that stressor. I accept that the consequence of the accident and resulting back pain has had the psychologically corrosive consequence that is reflected in the change in personality described by her mother.
Assessment of the plaintiff
I accept that the plaintiff was honestly recording the impacts of the accident. In giving evidence and in reporting to medico-legal experts she did demonstrate some frustration or resentfulness with the legal process, particularly the need to constantly repeat her story and endure the challenge to her evidence about the extent of her suffering and the defendant’s contentions about causation.
The plaintiff demonstrated a remarkable capacity to listen to and answer questions of significant forensic precision over the substantial period of her cross-examination. That capacity was impressive, although not obviously consistent with the difficulties with concentration that she described having when attempting to study law. At some points in her evidence the plaintiff appeared a little too willing to answer “I don’t know” or “I can’t recall” when confronted with some matters potentially adverse to her claim. I did not consider that this significantly damaged her credibility on the central issues in the case.
She was cross-examined by reference to closed circuit television (CCTV) video recorded by the Big W cameras in the period after the accident. In a number of videos she is shown attending the counter to purchase particular items. There is no obvious sign of disability on her part in the video including when bending or holding items that she is purchasing. I considered this video to be of some limited assistance. It did demonstrate that she has the capacity to function in an outwardly relatively normal fashion in public. It demonstrated that her pain levels were not obviously disabling in this context.
The plaintiff was also cross-examined by reference to video of her walking around Yerrabi Pond (the lake near the Gungahlin Town Centre). This was video taken by a private investigator. It showed her walking briskly without apparent restriction during the walk around the lake. Once again, the video provides a snapshot of conduct which does not illustrate obvious outward manifestations of disability.
I do not consider that this video evidence, the evidence that she gave about some relatively ordinary aspects of her daily life or her description of the disabilities that she suffered indicated that she had, as the defendant submitted “grossly over exaggerated the nature and extent of her disability”. Rather, I consider that her level of pain and disability is not such as to be outwardly debilitating but is at the level which will significantly interfere with the quality of her life and restrict her capacity to work because of physical difficulties with repetitive or continuous activities.
Overall approach to damages
The plaintiff has suffered an injury at work which has led to a significant and long-term aggravation of her back condition. She has adjusted as well as possible to that condition. She continues to suffer ongoing pain. That ongoing pain has interfered with her capacity to complete university studies. However, she has managed to obtain employment in an administrative capacity which she is able to undertake in a way that does not aggravate her condition in a manner that prevents her from working. Her long-term prognosis is uncertain. I accept Dr Champion’s evidence in his report of 8 June 2016:
The longer term prognosis is appearing concerning. Once a spondylolisthesis is impacted on by injury/trauma and become chronically painful, long-term pain is likely especially when there is nerve root involvement. While it is possible, it is unlikely on the balance of probabilities that the back and leg symptoms will resolve in the near future. Chronic pain and associated disability with relative handicap for work is most likely to persist long-term.
That prognosis was further considered in his report of 14 February 2018 but not departed from in a substantial way. Dr Champion recognised that it was a possibility that the plaintiff would be able to return to university studies such as law.
There are clearly very significant uncertainties which affect the assessment of damages. Some of them are as follows.
First, because of the plaintiff’s youth she does not have an established life trajectory which would readily permit a comparison between her situation before and after the accident. That is because prior to the accident she had only recently commenced university and then not completed some of her courses. It is not clear whether she would have remained true to the intention that she had expressed since Year 10 of becoming a paramedic. There are many things which may deflect a young person from an intended career path fixed upon at the age of 15.
Second is the related point that she did not have an established track record of success in the study at university which would provide confidence that she would see through to conclusion a course of study upon which she had started. Whilst it is clear that the effects of the accident have included interference with her capacity to study, her earlier attempts at study do not clearly demonstrate someone who would have been able to successfully complete her course. For example, she did not achieve an ATAR result which allowed her to get into her preferred university course. Because of family conflict she failed to sit examinations in her second semester of her Bachelor of Medical Science course. She then enrolled briefly in the nursing degree in circumstances where it was not clear that she was doing so only to facilitate a transfer into a course to train herself as a paramedic. I consider that the overall picture of her academic intentions and prospects was somewhat more complicated than simply pursuing a long established goal of being a paramedic which would have been followed through until completion.
Third, on top of the uncertainties surrounding what would have been the plaintiff’s uninjured study and career path, there are also significant uncertainties as to what would have happened and what will happen in terms of her personal life and the consequences of that for her economic loss. She is presently single. She expressed a desire to have children. There was no evidence as to what her intentions would be in relation to work and caring for children. Even if there was, any such expression of intentions would, for a person of her age, be very obviously the subject of considerable uncertainty.
Fourth, there would in any event have been the prospect that her underlying spondylolysis or asymptomatic spondylolisthesis was rendered symptomatic by matters unrelated to the accident. Dr Patrick indicated that 25 per cent of people with spondylolysis become symptomatic. The prospect that she would have become symptomatic needs to be taken into account in the assessment of damages.
Fifth, there is significant uncertainty as to her prognosis. It is now two and a half years since the accident. There is some prospect of improvement of her condition over time. Dr Champion recognised that it was unlikely but conceivable that the symptoms would settle completely. On the other hand, he considered that it was more likely than not that her condition would deteriorate to the extent that she would need a decompression and spinal fusion. These differing possibilities must be taken into account in an assessment of damages.
I do not accept the defendant’s contention that the plaintiff will suffer no economic loss as a consequence of the injury that she suffered. Notwithstanding the best efforts of the plaintiff, an injury such as that which she suffered is likely to constrain both the options that she has in relation to employment and her capacity for tertiary study so as to advance herself, and also make it less likely that she will pursue remunerative activities to the extent that she would have if she was uninjured. However, I do not accept the plaintiff’s contention that the starting point for an assessment of damages should be a defined loss for the whole of the plaintiff’s working life which is then discounted to take into account all of the various possibilities. Rather, I consider that the evidence about her prognosis and the evidence about the various contingencies that may affect the extent to which her loss of earning capacity is productive of financial loss is such that an award for future economic loss can only be made by way of a buffer.
General damages
The plaintiff has had rendered symptomatic an underlying condition. That caused her a significant degree of disability initially. She has continued to suffer from ongoing pain. That ongoing pain is not so disabling as to prevent her from engaging in a superficially normal life but it does affect her. It has affected her capacity to concentrate upon her studies. It also has placed limitations upon the work that she can carry out. The pain continues to affect her to varying degrees all the time and affects her psychological well‑being and behaviour. Assessment of what will occur in the future is made more difficult by the factors referred to above. There is a likelihood that at some stage in the future she will require spinal decompression and fusion surgery which is significant in terms of general damages. I assess general damages in the sum of $170,000 with $60,000 of that attributed to the past and $110,000 attributed to the future.
Interest on the past component is $3,000 ($60,000 x 2.5 years x 4 per cent x 0.5).
Loss of earning capacity – past
The situation at work was made difficult by the failure of her employer to allow her to work within the restrictions imposed by her general practitioner. It was made even more difficult when the insurer, relying upon Dr Wallace’s report to which I have referred above at [50]-[63], terminated workers compensation payments with the effect that the plaintiff felt compelled to attempt to increase her hours back up to her contracted hours because of her financial situation. This then led to her resignation from that employment.
Following her resignation the plaintiff has demonstrated a capacity to obtain further employment. Initially she commenced work with Amalgam Free Dental Care Clinic in Gungahlin but her employment was terminated after about six weeks. She then obtained employment as a receptionist with Rydges Hotel but resigned after about six weeks because she was required to stand for long periods and that increased her pain. Between January 2017 and June 2017 she was not employed. She had settled her workers compensation claim in early 2017 for approximately $52,000. She took time off work. Her intention was “To take time off work to try and just rest my back”. The defendant submitted that this was a discretionary decision by the plaintiff not to work. While I accept that it was in one sense a discretionary decision, it was one taken because of her back injury. Had it not been for her back injury she would not have taken that time off work. She obtained employment at Florey Medical Centre on 21 June 2017 and continued her employment there until 29 November 2017. From that date she was employed as a practice manager at the Charnwood Medical Centre and remained in that employment as at the date of the trial.
The defendant assessed the plaintiff’s loss up until commencement of employment with the Amalgam Free Dental Care clinic is just under $2,000. The difference between this and the economic loss contended for by the plaintiff of $14,593 was almost entirely attributable to her period of unemployment from 24 January 2017 until 21 June 2017 when she was employed at the Florey Medical Centre. Because I have found that the time off work in this period was caused by the plaintiff’s injury I will award past economic loss based upon the plaintiff’s calculations. These were set out in the damages schedule provided pursuant to the standard pre-trial directions. Her income had she not been injured and continued employment with the defendant would have been $74,500. Her income in the period was actually $59,907. That gave a loss of earnings up until the commencement of the trial of $14,593. Because her current earnings at the Charnwood Medical Centre are higher than those which she would have been earning with the defendant, the economic loss is reduced by $198 per week for the seven weeks after 8 June 2018 resulting in a figure of $13,207. The final submissions included no claim for interest on this amount. Superannuation on this amount at 11 per cent is $1,453. This gives a total of $14,660.
Bearing in mind that this loss occurred in the period prior to her employment at the Florey Medical Centre in June 2017, interest on this amount at the Court Procedures Rules rates is $1,495.
Loss of earning capacity – future
This was the area where the position adopted by the parties was most starkly different. In final submissions the plaintiff submitted that the starting point for an award should be in the order of $1 million ($1,019,505 plus $115,306 for superannuation). This took into account the difference between her likely earnings in the administrative position which she currently holds and that which she would have earned as a paramedic. The defendant contended that no award should be made for future economic loss because, notwithstanding her injuries and disabilities, she remains capable of completing a law degree and able either by that path or some other path to earn the same amount that she would have earned in the absence of the accident.
The plaintiff’s claim is based on two different periods. The first period is between the date of judgment and 1 January 2020. In that period, but for the accident, the plaintiff would have continued in her pre-injury position with the defendant or some similar employment while undertaking university studies. She would have continued earning around $25 an hour for 30 hours per week which would result in an income of $661 net for a period of approximately one and a half years. In contrast, in her injured state she is actually earning more working at the Charnwood Medical Centre earning $794 net per week. That results in a gain of approximately $10,000. However, in the period after the date when she would have completed her university studies the plaintiff submitted that she would have suffered a significant loss. That loss is calculated by comparing the amount that she would have earned as a paramedic (as calculated in the forensic accountant report of Mr Michael Lee) and the amount that reflects her residual earning capacity, namely, an amount similar to that which she is currently earning (approximately $800 per week).
The methodology adopted in Mr Lee’s report is to compare the plaintiff’s likely earnings as either a paramedic or solicitor with her actual earnings and likely future earnings. Her likely future earnings were based upon her level of pay at the Florey Medical Centre because at the time of Mr Lee’s report she had not obtained the more highly paid job at the Charnwood Medical Centre. For these reasons some of the calculations undertaken by Mr Lee were overtaken by events. The plaintiff still relied upon his calculations of the likely level of remuneration that would have been achieved by the plaintiff had she become qualified as a paramedic. While Mr Lee calculated the losses with a greater degree of precision, in final submissions the plaintiff submitted that the evidence in Mr Lee’s report disclosed net weekly wages for a paramedic of $1,370 (1 January 2020 to 1 January 2024), $1,600 (1 January 2024 to 1 January 2026) $1,667 (1 January 2026 to 1 January 2027) and $1,709 (from 1 January 2027). These figures were then used to calculate a net weekly loss up until retirement date of 1 January 2063 giving a present value of $1,029,653. This in turn led to a net future loss of just over $1 million. Superannuation was calculated based on the methodology adopted by Mr Lee and gave a figure of $115,306.
Ultimately, the plaintiff submitted that the future economic loss figure could be discounted by a percentage to take into account the usual vicissitudes, the possibility that the plaintiff did not become qualified and employed as a paramedic and the possibility of a back injury. The plaintiff submitted that a discount of 40 per cent would be appropriate, giving a submission that an award of $680,887 should be made for future economic loss.
The defendant’s main contention was that no loss had been demonstrated because the plaintiff was not prevented by her back condition from undertaking her law degree. The defendant relied upon the evidence of Dr Patrick who had initially expressed the opinion that the plaintiff would be unable to cope with the activities involved in court work and that, having regard to the range of types of legal work that were available, she would be able to find a type of employment as a lawyer which would accommodate her back restrictions.
Notwithstanding that I accept the plaintiff’s evidence that she ceased doing the law degree because of interference with her concentration because of the back injury, I do not consider that her condition necessarily precludes her from ever completing such a degree. However, it may be that having missed the opportunity to do so in 2016, she will find herself unable to pursue an attempt to return to that possible vocation.
I consider that the plaintiff has established that she has suffered a loss of earning capacity as a result of the accident. It is clear that the range of employment available to her has been narrowed and that additional impediments have been placed in the way of her training for, and employment in, particular vocations. While there were reasonable prospects of her completing the paramedicine course at the ACU, her youth, the absence of a solid track record of study, the fact that she was attempting all of this while having a 30 hour per week job and the need to be successfully recruited as a paramedic mean that there were uncertainties as to the likelihood of success in the absence of the injury.
These uncertainties and the general uncertainties referred to at [75]-[81] above mean that it is not appropriate to assess damages on the basis suggested by the plaintiff. There is too much uncertainty to permit a starting point contended for by the plaintiff to be adopted. That starting point involves an assumption that the loss should be measured by the difference between paramedic’s and medical receptionist’s wages over the balance of her working life.
Instead, because of the multiple uncertainties that exist, I consider this is a case where damages for future economic loss can only be assessed by way of a buffer. That buffer represents the economic loss caused by her loss of earning capacity resulting from her back condition. I have calculated that buffer by reference to the net loss of $570 per week for a period of 10 years. The $570 figure is the net loss figure involved in the plaintiff’s calculations for the period 1 January 2020 until 1 January 2024 ($1,370 - $800). The figure of $570 per week over a period of 10 years gives a discounted value (multiplier 451.8) of $257,526. Superannuation at 11 per cent would add $28,328 giving a total of $285,854. I will award a buffer amount of $285,000. Assessed by reference to the loss as calculated by the plaintiff (see [88]-[90] above), it represents a discount of 75 per cent upon that figure. That compares with the 40 per cent discount submitted as appropriate by the plaintiff or the defendant’s alternative submission that if contrary to its primary submission that no award for the future should be made, an award using the plaintiff’s methodology should be discounted by 90 per cent.
The fact that I have set out the means by which I have assessed a reasonable figure for the buffer should not detract from the fact that it is a buffer representing an assessment of net loss having regard to the multitude of uncertainties referred to above.
Out of pockets – past
Past out of pocket expenses were agreed at $12,097.81. In final submissions there was no claim for interest on this amount.
Out of pockets – future
The plaintiff has claimed out of pocket expenses in the following categories:
(a)general practitioner consultations and medication;
(b)physiotherapy;
(c)a pain management course including psychological intervention;
(d)spinal decompression and fusion;
(e)gym membership.
The defendant submitted that with the exception of some lesser amount for attendance on a general practitioner, there should be no allowance for future out of pocket expenses.
The plaintiff has claimed general practitioner consultations and medication at the rate of $10 per week ($520 per year) for the balance of her life expectancy. The defendant has submitted her recent history does not indicate a significant increase in general practitioner visits as a result of her back condition. Further, the plaintiff tries to avoid taking medications. That is based on the oral and documentary evidence that she does not go to doctors very often now and that she tries to avoid most medications. Instead she does the workouts that the physio advised her and uses lots of Voltaren rub gel and occasionally some stronger painkillers. However, there is the possibility in the future that her condition will worsen and that she will need further medical assistance. I will allow the equivalent of an additional two visits per year to the general practitioner ($180 per year or $3.46 per week) for the balance of her life expectancy (66 years, multiplier 1514.4). This gives a sum of $5,240 ($3.46 x 1514.4). I will also allow a buffer of $10,000 for other medical expenses (most likely physiotherapy, specialist consultations and imaging). This takes account of the possibility that the plaintiff will require additional medical intervention because of her back condition in circumstances where, having regard to the minimal medical treatment she receives currently and the long period of her life ahead, it is not possible to identify with precision the form that this is likely to take.
A claim is made for a pain management course including psychological intervention. This is based upon the evidence of Dr Champion in his report of 8 June 2016 which estimates the cost as in the order of $5,000-$8,000. That is for a multidisciplinary management which will include further physiotherapy guidance, occupational therapy and clinical psychology including coping and managing pain. An award in the mid range of this figure ($6,500) is appropriate having regard to the likelihood that for the foreseeable future she will need to manage her back pain as best she can.
The evidence of Dr Champion and Dr Patrick indicates that it is more likely than not that at some stage in the future spinal decompression and fusion will be necessary. That was notwithstanding that conservative management would be followed for as long as possible and the plaintiff was understandably not enthusiastic about the prospect of surgery. The cost of that surgery in current dollars is identified in the report of Dr Conrad as being $25,000-$30,000 with a requirement to be off work for about three months. The mid range figure in current dollars for this is $27,500. Although the fixing of a precise percentage is not possible, I will adopt a percentage chance of 60 per cent in the light of the evidence of Dr Champion and Dr Patrick. I will also make the award calculated by reference to deferral for a period of 20 years as any requirement for that procedure is only likely in the distant future. This gives a figure of $9,141 ($27,500 × 0.6 × 0.554). I have taken into account the need for time off work subsequent to such surgery in my assessment of future economic loss above (at [96]).
I am not satisfied that there should be any award relating to a gym program. While I accept that a course of conservative management is likely to involve exercise activities designed to reduce pain and prevent further aggravation of her back, the evidence was that prior to the accident she was attending the gym five or six days a week in any event. While there is the possibility that in the absence of the accident she would have ceased or reduced her gym attendance and that she will now be required to attend the gym, this is simply speculation.
This gives a total award under this head of $30,881 ($5,240 + $10,000 + $6,500 + $9,141).
Griffiths v Kerkemeyer/s 100 damages – past
There was no claim for past domestic assistance.
Griffiths v Kerkemeyer/s 100 damages – future
The plaintiff submitted that there was a possibility that she would require domestic assistance in the future, particular if she had a child or children. An award of three hours per week at the rate of $45 per hour for the 20 years from her 30th birthday would give a figure of $83,923 ($135 per week for 20 years (multiplier 787.9) deferred for eight years (multiplier 0.789)). The plaintiff submitted that an award of $50,000 would be appropriate having regard to the possibility of the plaintiff requiring such assistance. The defendant contended that the plaintiff did not anticipate doing all household duties by herself because she hoped that she would “have someone decent to raise my kids with to help out a lot”. The passage relied upon by the defendant followed a question about the plaintiff’s observation of what her sister needed to do to look after her children. It continued:
Do you anticipate if you have children being able to do all those sort of things by yourself?---No.
How do you propose to approach that problem if and when it arises?---I’m not sure, I’m a little bit terrified, I just hope I have someone decent to raise my kids with to help out a lot.
Would you contemplate, if you could afford it, paying someone to do at least some of the heaviest aspects of housework?---The domestic stuff, yes.
Some of the uncertainties referred to above also apply to the award of damages in this category, most obviously whether or not the plaintiff will have children and whether or not her back condition gets better or worse. I consider it appropriate to make an award of damages of 2 hours per week for the same period contended for by the plaintiff. No evidence of domestic care rates was given. In those circumstances, I will make an award based upon a rate of $35 per hour. This would give an award of $43,516 ($70 x 787.9 x 0.789). The plaintiff’s submissions recognised that the requirement for this assistance was a possibility rather than a certainty, most obviously because it would only arise in circumstances where the plaintiff had children. I will reduce the amount under this head by 40 per cent to take account of the possibility that the plaintiff does not have children and the other uncertainties surrounding the need for such future assistance. This is the same percentage embedded in the calculations contended for by the plaintiff. This gives an award of $26,109.
Summary
In summary I have assessed damages as follows:
Component Amount General damages $170,000 Interest on past general damages $3,000 Past out-of-pocket expenses $12,098 Future out-of-pocket expenses $30,881 Past loss of earning capacity (including superannuation) $14,660 Interest on past loss of earning capacity $1,495 Future loss of earning capacity (including superannuation) $285,000 Future Griffiths v Kerkemeyer/s 100 $26,109 Total $543,243
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff in the sum of $543,243.
2. The usual order as to interest.
3. The defendant is to pay the plaintiff’s costs.
4. Order 3 does not take effect for 14 days and if, within that period, any party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
| I certify that the preceding one-hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 August 2018 |
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