Partridge v Hobart City Council
[2010] TASSC 62
•17 December 2010
[2010] TASSC 62
COURT: SUPREME COURT OF TASMANIA
CITATION: Partridge v Hobart City Council [2010] TASSC 62
PARTIES: PARTRIDGE, Moira Kathleen
v
HOBART CITY COUNCIL
MICHAEL TRESIZE t/as TRESIZE LAWYERS
BEHRAKIS, Peter
BEHRAKIS, Victoria Anne
BEHRAKIS, Dennis
BEHRAKIS, Maria
FILE NO/S: 602/2003
DELIVERED ON: 17 December 2010
DELIVERED AT: Hobart
HEARING DATES: 24 – 26, 30 November;
1 – 3, 7 – 12 December 2009;
1, 3, 4 February 2010
JUDGMENT OF: Porter J
CATCHWORDS:
Torts – Negligence – Special relationships and duties – Occupiers – Slip and fall on external stairway to offices – Stairway built on land owned by local council – Right-of-footway over stairway land attached to land on which office building situated – Owners of office building leased offices to third parties – Benefit of easement impliedly acquired by lessees – Occupier of offices the licensee of the lessees – Whether each of local council, owners of dominant tenement and licensee were an occupier of the stairway – Whether each owed duty of care.
Gorman v Wills (1906) 4 CLR 764; Kevan v Commissioner for Railways [1972] 2 NSWLR 710; Bulmer v Ryde Municipal Council (1976) 34 LGRA 300, applied.
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; New South Wales v Broune [2000] NSWCA 3; Wilkinson v Law Courts Limited [2001] NSWCA 196, considered.
Aust Dig Torts [39]
Torts – Negligence – Dangerous premises – Injuries to persons entering premises – Who is liable – Slip and fall on external stairway to offices – Stairway built on land owned by local council – Right-of-footway over stairway land attached to land on which office building situated – Owners of office building leased offices to third parties – Benefit of easement impliedly acquired by lessees – Occupier of offices the licensee of the lessees – Whether each of local council, owners of dominant tenement and licensee were an occupier of the stairway – Whether each owed duty of care – Steps slippery when wet – Whether each in breach of duty.
Aust Dig Torts [126]
Torts – Negligence – Contributory negligence – Apportionment of responsibility and damages – Apportionment in particular situations and cases – Plaintiff slipped and fell on external stairway – Steps made wet by rain – Nature of steps and height of stairway relevant factors – Plaintiff contributorily negligent to extent of 20 per cent.
Aust Dig Torts [71]
Damages – Particular awards of general damages – Tasmania – Low back, knee and hand injuries – Approach to assessment where evidence of pre-existing vulnerability and conscious exaggeration – Award of $40,000 general damages, $281,350 loss of earning capacity and $23,100 loss of superannuation entitlements.
Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 247; Parker v Commonwealth (1979) 49 ALJR 221, applied.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: C H Hobbs
First Defendant: K E Read and L Cooper
Second Defendant: D J Barclay and B J Cassidy
Third Defendants: P L Jackson
Solicitors:
Plaintiff: Ogilvie Jennings
First Defendant: Hunt & Hunt
Second Defendant: Page Seager
Third Defendants: Jackson Tremayne & Fay
Judgment Number: [2010] TASSC 62
Number of paragraphs: 347
Serial No 62/2010
File No 602/2003
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TRESIZE t/as TRESIZE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
REASONS FOR JUDGMENT PORTER J
17 December 2010
TABLE OF CONTENTS
paragraph
Introduction...................................................................................................................................... [1] – [8]
The issues
The plaintiff's credibility............................................................................................................ [9]
Liability.................................................................................................................................... [10]
Damages.............................................................................................................................. [11] – [12]
Basic outline of events..................................................................................................................... [13] – [22]
The plaintiff's credibility................................................................................................................. [23] – [24]
The consultations with Mr Hamer........................................................................................ [25] – [34]
oComments..................................................................................................................... [35] – [36]
· Sailing and driving activities.................................................................................................. [37] – [48]
oSouthport to Booker Bay..................................................................................................... [49]
oBooker Bay to Yamba.................................................................................................... [50] – [51]
oMiscellaneous evidence as to sailing/driving activities..................................................... [52] – [55]
oComments..................................................................................................................... [56] – [57]
· The application for teacher re-registration............................................................................. [58] – [63]
· Workers compensation claim...................................................................................................... [64]
· The Tingletree newsletter of November 2002............................................................................... [65]
· Conclusions.......................................................................................................................... [66] – [70]
The liability of the defendants
· The structure of the stairway................................................................................................. [71] – [72]
· The facts of the accident
oThe plaintiff's evidence about the fall and associated issues.............................................. [73] – 80]
oMr Partridge's evidence................................................................................................ [81] – [83]
oThe evidence of Christine Webster – the fall and her experiences with the steps................ [84] – [86]
oThe expert evidence of Mr Dohrmann............................................................................. [87] – [92]
· Did the plaintiff slip on the step?........................................................................................... [93] – [99]
· The duty of care of each defendant
oWhether a duty exists................................................................................................... [100] – [111]
oThe first defendant............................................................................................................ [112]
oThe second defendant.................................................................................................. [113] – [115]
oThe third defendants..................................................................................................... [116] – 118]
· Breach of duty?
oThe stairway and the steps........................................................................................... [119] – [122]
oThe defendants' knowledge of the risk of slipping........................................................... [123] – [128]
oThe liability of the first defendant................................................................................. [129] – [130]
oThe liability of the second defendant............................................................................. [131] – [137]
oThe liability of the third defendants.................................................................................... [138]
· Causation.......................................................................................................................... [139] – [144]
Contributory negligence............................................................................................................... [145] – [148]
Damages
· What injuries were sustained in the fall
and which of those are presently productive of symptoms?.................................................. [149] – [151]oThe plaintiff's evidence as to the injuries and their treatment.......................................... [152] – [156]
oThe medical records.................................................................................................... [157] – [168]
oThe expert opinion evidence......................................................................................... [169] – [184]
oFindings of fact........................................................................................................... [185] – [192]
· The plaintiff – before and after the accident
oThe plaintiff's evidence................................................................................................ [193] – [209]
oThe evidence of the plaintiff's mother and of various friends........................................... [210] – [229]
oThe surveillance DVDs................................................................................................ [230] – [233]
oThe evidence of Mr Partridge............................................................................................. [234]
· The plaintiff's condition
oThe medical evidence................................................................................................... [235] – [260]
oDiscussion.................................................................................................................. [261] – [271]
oConclusions................................................................................................................ [272] – [274]
· The sale of Tingletree and the move to New South Wales................................................... [275] – [289]
· Loss of earning capacity.................................................................................................... [300] – [306]
· Loss of superannuation entitlements........................................................................................ [307]
· Domestic and personal care............................................................................................... [308] – [309]
· Medical, physiotherapy and associated expenses................................................................ [310] – [313]
· Medication costs............................................................................................................... [314] – [316]
· TENS unit and miscellaneous items........................................................................................ [317]
· Pain management and gymnasium fees............................................................................. [318] – [319]
· Equipment and aids........................................................................................................... [320] – [322]
· Travelling expenses........................................................................................................... [323] – [324]
· The sale of Tingletree.............................................................................................................. [325]
· The sale of the home............................................................................................................... [326]
· Yacht safety expenses........................................................................................................ [327] – [328]
· Furniture storage expenses..................................................................................................... [329]
· Study and other rehabilitation expenses............................................................................. [330] – [332]
· Medicare reimbursement......................................................................................................... [333]
· Tax of weekly payments of compensation................................................................................. [334]
· Pain and suffering; loss of amenities....................................................................................... [335]
Outcome....................................................................................................................................... [336] – [337]
Appendix "A"
The plaintiff's credibility
· Workers compensation claim............................................................................................. [338] – [341]
oComment.................................................................................................................... [342] – [343]
· The Tingletree newsletter of November 2002...................................................................... [344] – [347]
Serial No 62/2010
File No 602/2003
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TRESIZE t/as TRESIZE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
REASONS FOR JUDGMENT PORTER J
17 December 2010
Introduction
This is an action in negligence for damages for personal injuries said to have been sustained in a fall whilst the plaintiff was descending a set of external steps of a building in Salamanca Place in Hobart. This was on 17 June 2002. The plaintiff was operating a childcare business at the time of the accident, but says that as a result of the injuries she could not cope with the physical demands, and was required to sell it. She now lives with her husband on a yacht in a marina in Yamba, New South Wales; her evidence being that they cannot afford to live any other way.
The building where the fall occurred is a two storey structure with the principal address of 41 Salamanca Place. It is owned by the group of three "third" defendants, as they are described in the pleadings. (Although referring to these defendants in the plural, I will treat them as one.) The ground floor is occupied by the business known as the Salamanca Fruit Market. This has frontage onto Salamanca Place. On the eastern side of the building, Kennedy Lane gives access from Salamanca Place to Salamanca Square. The steps, which are uncovered, provide access from Kennedy Lane to office space on the first floor of the building. Part of that office space is 41A Salamanca Place.
The steps themselves are on land owned by the first defendant, the Hobart City Council ("the Council"). 41 Salamanca Place has the benefit of a right-of-footway over the land occupied by the steps, and accordingly, the third defendants had right of access to the first floor of the building. The third defendants leased 41A Salamanca Place to Andrea Tresize Management Pty Ltd and Michael Tresize Pty Ltd, as "tenant". By implication the tenant acquired the benefit of the easement. The actual occupier of 41A (in the factual sense) was the second defendant, Michael Tresize, t/as Michael Tresize Lawyers. The plaintiff had been in Mr Tresize's office and was leaving the building when the fall occurred.
Each of the defendants is said to be an occupier, and to have had the care, control and management of the flight of steps. The plaintiff alleges that the fall was caused by the negligence of all defendants. The particulars of negligence alleged against the first defendant are as follows:
"(a) failed to install a non slip surface to the steps;
(b) failed to apply slip resistant strips to each tread of the steps;
(c) failed to install a cover over the steps so as to keep the steps dry;
(d) failed to install a handrail to both sides of the steps;
(e) failed to warn the Plaintiff that the steps were slippery when wet;
(f) failed to maintain the steps in a non slip condition."
The particulars of negligence alleged against the second defendant are that he:
"(a) failed to warn the Plaintiff that the steps were slippery when wet;
(b) failed to maintain the steps in a non-slip condition;
(c) failed to install a cover over the steps so as to keep the steps dry."
The particulars of negligence alleged against the third defendants, although in slightly different terms to those alleged against the first defendant, are effectively the same.
The defendants deny that they were negligent. Assuming more than one defendant is found to be negligent, I am not required to apportion liability as between them. They each say that if they were negligent, the plaintiff was contributorily negligent. Particulars of contributory negligence common to the pleadings of all defendants are that the plaintiff failed to keep a proper lookout, and failed to take reasonable care for her own safety; in particular failing to take into account that the steps may have been wet and potentially slippery. The first and third defendants have alleged contributory negligence in failing to make use of a handrail "adjoined to the steps", whilst the second defendant has alleged that the plaintiff attempted to walk down the steps at too fast a rate.
In the current set of particulars of damage, the plaintiff says that she "sustained injury to her lower back, left buttock sacroiliac joint, right knee and right lower leg laterally, left hand, and generalised interscapular discomfort". The long term consequences are said to arise from the back, knee and hand injuries. These consequences are said to be significant in terms of the impact on her ability to work, enjoy sporting and leisure activities, and to enjoy her married life. There is a claimed need for ongoing medical treatment and medication, and for personal and domestic assistance. The nature and extent of the plaintiff's symptoms and disabilities is a matter of much contention.
The issues
The plaintiff's credibility
A major issue relevant to the determination of the liability of the defendants and the quantum of damages, is the plaintiff's credibility. Much of the trial time was occupied in focussing on that issue and there are several key exhibits. The extent of the debate can be gauged from the outline of the defendants' position as put in closing submissions. A summary of the defendants' position is that:
· the plaintiff is unable to positively satisfy the Court that she slipped on the steps; the defendants say that she collapsed or fell in a way which was unconnected with the nature or state of the steps.
· the plaintiff cannot establish that in the fall she suffered injury to the particular inter-vertebral disc.
· there is no evidence capable of establishing that the plaintiff injured her knee in the fall; that is unless she did not slip.
· her present back pains and disabilities have not been established as resulting from the pleaded cause of action.
· any injury to the plaintiff's hand has been of nuisance value only since at least early 2003.
· the business was sold for reasons unconnected with the fall.
· the plaintiff is and has been since late 2002, fit for fulltime work in her previous occupation for the position she occupied at the time of the fall.
· the plaintiff has deliberately and grossly exaggerated her disabilities that she says flow from her back, knee and hand injuries.
· the exaggeration or lies have infiltrated every aspect of her case, especially the basis for the medical opinions given at trial.
· the plaintiff has failed to establish any entitlement to damages at all; any award of damages to which she may be entitled should be minimal and limited to non-economic loss for a relatively short period.
Liability
Apart from the cause of the fall, particular issues which arise for consideration are:
· the state of the steps as at the time of the accident, generally and immediately prior to the accident.
· the existence and content of the duty of care in relation to each defendant group, included in which is the issue of "occupation".
· breach of duty.
· factual causation.
Damages
The plaintiff says that if successful in liability then she is entitled to a very substantial award of damages. She has claimed damages under twenty-seven separate heads. The claim for loss of earning capacity is based on the total destruction of that capacity. Other heads include expenses associated with anticipated attendance at a pain management program, future gymnasium and associated expenses, future equipment (occupational therapy) expenses, future occupational therapist attendance and home alteration expenses, costs incurred in relation to the sale of the business, costs incurred in relation to the sale of the Hobart home, expenses incurred in relation to safety items for the yacht at Yamba, storage of furniture expenses (past and future), and study and rehabilitation expenses "thrown away".
I have noted the defendants' position as to damages. They say that there is very little wrong with the plaintiff, that she is exaggerating her symptoms for gain and would be entitled only to a very modest award in the event that liability is made out. As can be seen the gulf between the parties is a very wide one. Because of the fundamental importance of the credibility issue to matters which I am required to determine, I will deal with that matter first. In order to do so, I think it is necessary to set out a chronology of events which will provide an understanding of the factual background in which the particular matters relevant to credibility occurred.
Basic outline of events
The plaintiff is now aged 49; her date of birth is 12 October 1961. She obtained teaching qualifications in 1986 and taught in a primary school for a little over two years before opening a kindergarten in Bedford Street, New Town. The kindergarten, and the business, was called Tingletree. The property in Bedford Street was leased from her parents. The venture was apparently very successful so that by 1994 the kindergarten was "servicing 120 families".
By this time the plaintiff was living with Timothy Partridge. They married in 1997. In 1995 a company, Tingletree Enterprises Pty Ltd was formed for the purposes of operating the business. The plaintiff and her mother, Kathleen Beven, were the shareholders and directors. The plaintiff and Mr Partridge shared an interest in sailing. In 1994 they had a half-cabin cruiser, which they sold and bought a yacht. This proved to be un-seaworthy and it sunk in 1997. This has relevance to the events of the day of the accident. Mr Tresize was acting for the couple in relation to potential action against a marine surveyor who had provided a report as to the state of the vessel.
In April 2001, due to what were described as anxiety symptoms and panic attacks, the plaintiff began to see Mr Peter Hamer, clinical and counselling psychologist. The first consultation date was 23 April 2001. The plaintiff saw Mr Hamer at very regular intervals, most usually weekly or fortnightly, for a period of two years, the last attendance being on 17 April 2003. In Mr Hamer's notes there were, both before and after the accident, references (in simple terms) to the plaintiff selling up and moving to a warmer climate on the eastern seaboard of Australia, and that pressure was coming from Mr Partridge as to this. In cross-examination, the plaintiff was very closely questioned about the true basis upon which the subject-matter was discussed with Mr Hamer.
On the day of the accident the plaintiff and Mr Partridge had spent some time in Mr Tresize's office. The sole or predominant purpose of the visit was a matter of contention. There seems to be no doubt that discussions were had with Mr Tresize about possible proceedings against the marine surveyor, but the plaintiff said that she also spoke to an employee of the firm, Christine Webster, concerning Tingletree's debtors. The area of contention related to the fact that the plaintiff claimed workers compensation payments on the basis that the trip to Mr Tresize's office related to her duties as an employee of Tingletree Enterprises Pty Ltd. Whether or not the claim was a valid one became an issue towards the end of 2002.
The day after the fall, 18 June 2002, the plaintiff sought medical attention for injuries she had sustained. She went to the emergency section of Calvary Hospital and later, on 3 July, saw her regular general practitioner, Dr Edwards. After a few weeks off work the plaintiff tried to return. She was there on a limited basis depending on her symptoms and the demands made of her, although she was working long hours in late 2002 to early 2003. The plaintiff had regular physiotherapy for her back for two months from 15 July 2002, and saw a pain management specialist about this problem in late 2002 to early 2003. She had physiotherapy for her left hand from a specialist hand physiotherapist, also for two months from 4 September 2002. In early December 2003, she was cleared for a return to work for up to four hours a day as tolerated, reporting to her general practitioner on 18 December, that her back had improved in the previous two weeks. On 13 February 2003 the plaintiff reported that her hand had "improved dramatically". She continued to see her GP about fall-related symptoms until she permanently left the State in October 2003, and first consulted Dr Dixon, an orthopaedic specialist, in Hornsby New South Wales on 11 November 2003.
In about September 2003, the business of Tingletree had been sold. The plaintiff and her husband sold their home in Hobart in late November 2003. In October 2003 they had taken a one year lease of a residence on the waterfront at Booker Bay in New South Wales, with a monthly rental of $2,390, and from April 2004 a monthly mooring fee of $120. Earlier in the year, another yacht, the Serendipity, had been purchased and it is this yacht upon which they still live. That was sailed from Southport in Queensland to Booker Bay in November 2003 by Mr Partridge, and a friend of his, John McInerney. After the one-year lease on the residence at Booker Bay had expired, the yacht was moved to Yamba, and the couple commenced to live on the yacht in the Yamba Marina. Yamba is considerably further north than Booker Bay and is roughly to the north-east of Grafton. The yacht was sailed to Yamba in October 2004 by Mr Partridge and a different friend, William Kesby. In late 2004 the plaintiff obtained a disability support pension. Her husband was designated as her carer, and is in receipt of pension entitlements as such.
In April 2005 the plaintiff suffered a "heart attack", and underwent arterial bypass graft surgery. Otherwise she continued to live on the yacht at Yamba with her husband. As I have noted, she says that the consequences of her injuries suffered in the fall, prevent her from doing very much at all. The extent of the plaintiff's claimed disabilities is summarised in the following excerpts from her evidence:
· "My mental state is entirely changed since the accident. I think that there's an enormous sense of loss that I live with and anger, have intermittent depression. I have a lot of anxiety in a different way then I've ever experienced, like being in a crowd or travelling. I feel even guilty sometimes that I'm not contributing to either my profession or society. I can't help but feel socially isolated, that's partly because of our living circumstances, but I don't have the concentration – I don't have the joie de vivre to be out in groups of people and keep pace with the rest of the world. I feel that I'm not in sync with other peoples normal thinking patterns and way of life and so that is reasonably heartbreaking and it's isolating so I tend to want to keep more to myself."
· "My injuries totally and absolutely, my disabilities totally and absolutely preclude from working with young children in a teaching or a caring capacity on all physical levels in terms of all licences and all professional standards. I did try to return to my job. I did try very hard to force myself beyond reasonable limits even but I was unsuccessful. I'm physically very restricted and its absolutely dependent on how much pain I'm having in different parts of my body. For example,…I can go and have gone for periods of days where I haven't been able to get off the vessel. It's totally affected my ability to physically function in the world."
The plaintiff's evidence as to her reliance on her husband well illustrates what she asserts as to the extent of her difficulties:
"Tim makes my coffee, makes my breakfast, and then one very painful element up there is the use of the marina facilities for showering and toileting; they're a long distance away from where the boats are moored and Tim has to carry my shower bag and accompany me to the shower block, which sometimes I can do very slowly and resting on fire extinguishers on the way, in one or two attempts. Other times it can take me half an hour to get to the actual amenities block …".
The plaintiff called evidence from an occupational therapist; Jane Berger. Mrs Berger's evidence was that she observed the plaintiff to be restless after remaining seated for 30 minutes after which she put her hands on either side of her hips and took her trunk weight on her hands. The plaintiff told her that she does not carry items as she hangs on with her right arm to furniture, grab rails or a carer while walking, and that when she uses the public bathrooms in the marina she is not able to carry her towel, shower bag and change of clothing. "She stated that she holds onto Mr Partridge and he carries the bathing items." The plaintiff also told Mrs Berger that Mr Partridge had to lift her legs over the shower hob (described by Mrs Berger as "the little step to stop the water getting out"), and that he had to wash her lower limbs and trunk, as well as her hair. He also had to assist in drying and dressing her.
Two activities assumed particular significance in the trial; driving or travelling in a car, and sailing. The plaintiff said that travelling in a vehicle was very difficult, that it was difficult for her to drive "bar very short distances", and that she had stopped driving herself because of her medication and the requirement to turn and use her legs. Mrs Berger's evidence was that she was able to remain seated as a passenger for about 30 – 40 minutes where she is able to put her foot up on the dashboard or raise and lower the back rest. As to her previous interest of sailing, the plaintiff said that she had not been sailing since the accident, despite living on the boat for 5½ years. She confirmed in cross-examination that she had not been sailing on the yacht at all; that she had not "while it's been sailing been on the boat away from its marina and/or away from its mooring". Of some significance is her assertion that the move from Booker Bay to Yamba was necessitated by the fact that they needed the boat in a marina, not on a mooring, because she could not access it in a dinghy.
The evidence revealed that in the period from Christmas 2005 to August 2008, the plaintiff sent a number of letters and cards to two persons who worked at KPMG accountants in Hobart and who had been involved with the Tingletree business affairs and in assisting with the preparation of her damages claim. This correspondence contains statements as to the plaintiff's lifestyle and activities in which she had engaged, and assumes much significance in relation to the asserted level of the plaintiff's disabilities. In a similar vein there is an application made by the plaintiff to the Teachers' Registration Board for renewal of registration as a teacher for the period 1 January 2008 to 31 December 2010. This application is dated 26 November 2007 and contains information as to her professional development activities which had been undertaken.
The plaintiff's credibility
In relation to the plaintiff's evidence, the defendants' counsel in closing submissions, identified 10 issues or features which they say demonstrate the plaintiff is an unreliable and unbelievable witness. It is put that there is virtually nothing about the accident, the injuries, or the consequences of those injuries, about which the plaintiff "has not exaggerated or frankly lied about to someone, somewhere, at some time, including this Court". A further body of evidence which relates to the movements of the yacht Serendipity and associated facts is also relied on to demonstrate this point.
In terms of credibility findings to be made at this juncture, I will confine myself to what I see to be the most significant issues. I will deal with some of the others where they become particularly relevant. My categorisation of the issues is not entirely in accordance with the defendants' formulation, but those which I will canvass for present purposes are:
· The consultations with the plaintiff's psychologist – Mr Peter Hamer – and the question of leaving Tasmania prior to the accident.
· Sailing activities and issues related to the Serendipity's movements.
· The plaintiff's application for re-registration as a teacher in November 2007.
· The plaintiff's claim for workers compensation.
· The Tingletree newsletter of November 2002.
The consultations with Mr Hamer
The plaintiff first consulted Mr Hamer on 23 April 2001. Her evidence was that this was initially because of panic attacks. Mr Hamer noted these as one of the presenting complaints, the others being anxiety symptoms, some mild depression, anger issues with her mother and husband, and work-related stress. The consultations with Mr Hamer continued at, on average, weekly intervals until 17 April 2003. By January 2002 the panic attacks seemed no longer to be an issue. Issues which were discussed included problems with the plaintiff's mother at work, concerns about the relationship with her mother, issues within her marriage, particularly arising from her husband's dissatisfaction with his attempts to find work and pursue his career as a musician in Tasmania. Throughout the notes in the periods both before and after the accident, there are repeated references to "selling up" or similar terms, and moving to Sydney or Queensland.
In examination-in-chief the plaintiff said that she had not ever considered selling the business before the accident. She was also asked about her discussions with Mr Hamer before the accident and "mention by you of the … sale of Tingletree and perhaps moving to New South Wales or at least to the mainland, a warmer climate, living on a yacht and that sort of thing …". The plaintiff replied:
"I do recall several discussions of that nature with Mr Hamer. He would raise alternative lifestyles and we would discuss together different things that could be implemented within my life to eradicate any stress and we did have an exercise, a deliberate exercise of fantasy and optimism where over several sessions we developed – or I developed a dream scenario of what I would do, given all the choices in the world.
Yes. Well along that line then, did you seriously contemplate prior to your accident the sale of Tingletree and moving to warmer climates and living on a yacht?…….Absolutely not.
Yeah.…….Absolutely not."
This should be immediately contrasted with Mr Hamer's evidence. He was asked by the plaintiff's counsel about discussions as to the sale of the business and moving out of Tasmania to a warmer climate. He said that the matter came up frequently. He was asked to concentrate on the period before the accident and then requested to detail his recollection of those discussions. He said:
"One of – one of the – the issues of our sessions was the occasional, sometimes even frequent conflict with her partner, Tim. Some of those conflicts had to do with his dissatisfaction in not having enough work in Tasmania, he's a musician, and his solution was to move to a larger population base, he was suggesting, Queensland, Sydney – any place where he would get more work as a musician. So this was a suggestion that Moira frequently brought to the sessions as, you know, the reason for the arguments with Tim, he wanted to move to some place where he could get more work and his suggestion was, you know, 'Let's go someplace, live on a boat and I can – you know, you can do what you want to do and I can – I can get more work as a musician'.
Yes, and what did she relate to you was her perspective about all of that?……Well she was reluctant to do that because – although the idea appealed to her and at some – you know, frequently she'd come to our sessions and she was quite stressed and she might sort of think, 'Oh you know, the idea's not that far fetched, but not at the moment because, you know, I've built this business, I've – I enjoy the work that I do there, it brings me a lot of satisfaction, there are too many stumps to pull up in order to do that', so she'd never considered the idea of selling Tingletree seriously."
In cross-examination, the plaintiff strenuously denied that she considered selling the business before the accident, and repeatedly, in the course of close questioning about the entries in Mr Hamer's notes, that before the accident she had been seriously considering selling up and moving north to New South Wales or Queensland and living on a boat. I will need to detail some of this cross-examination as to the notes, what was said, and the plaintiff's responses as to why certain things were said. Mr Hamer's note for 6 August 2001 includes "Tim encouraging selling up – live on boat. Tim has offers for music work on mainland." The plaintiff said that she did not remember saying that. She said that there were some mistakes in Mr Hamer's notes, but conceded she could well have said it. A further entry of 3 September 2001 says "Discussing future hopes – seems disheartened at work – looking for reason to sell." The plaintiff seemed to accept that she had told Mr Hamer that, but said that it was not in relation to her business. She went on to say "It's a memory note for Mr Hamer to himself, but it does omit details …". She was interrupted and asked to explain what the note related to. She said "I believe that note relates to Tim looking for reasons to sell our home, encouraging me to sell our home and to live on a boat in Tasmania."
On 5 November 2001 Mr Hamer's note reads "Wants to examine feelings for Tim. Puts pressure on her to sell up and then move north to Sydney/Brisbane." There were other notes for the same attendance and the plaintiff was cross-examined about the whole of the entry. It is lengthy but worth setting out that part of the cross-examination which relates to the part which I have quoted:
"Now Tim didn't want to sell up and live on a houseboat in Hobart. He wanted to sell up and was putting pressure on you to do it, to move north to Sydney or Brisbane, didn't he?......That's your interpretation of that sentence.
No. I'm suggesting that's what you told Mr Hamer…….Tim, if Tim wanted to move north he was most welcome to move north.
But you'd stated---
HIS HONOUR: No, the question is what you told Mr Hamer though.
WITNESS: Oh, that –well, I'm reading it along with you. I believe---
HIS HONOUR: That's not – everybody can read what's on the paper. It's a question of what you told … Mr Hamer on the 5th of November 2001.
WITNESS: Well, I believe that Tim probably – the pressure, I believe---
HIS HONOUR: No. What did you tell him, that's the question you've been asked.
WITNESS: Sorry, I told him that Tim was pressurizing me to sell Forster Street and he did have, I believe - and I said to Mr Hamer, that he had some work temptations and some job opportunities interstate.
MR JACKSON: Did you really tell Mr Hamer that it was 39 Forster Street that Tim wanted you to sell so you could move?......That we could move?
Yes……..Onto a boat, in Tasmania?
No, north to Sydney or Brisbane……..No. I had never had an intention of moving north to Sydney or Brisbane.
So let me try and understand this…….My husband---
You've told Mr Hamer something on the 5th of November 2001, haven't you?......Yes.
You're not going to suggest Mr Hamer just dreamt up this, are you?.......No, I'm not.
Completely? You're not going to suggest it---…….There is a mistake in that entry but, no, I'm not suggesting it.
Well wait a minute. You're not going to suggest that, are you?.......No.
And what I'm suggesting to you is that you told Mr Hamer that Tim was putting pressure on you to sell up, that is, to sell up everything, get out of here and go to Sydney or Brisbane. Now is that what you told Mr Hamer or not?......I think it was pressure to sell up the house.
You think it was. Let's just move outside Mr Hamer's notes for a moment. In November 2001 was Tim putting pressure on you to sell up everything and move to Sydney or Brisbane? Now just answer that question if you can, please, yes or no, was he?…….Tim has never ever wanted to live in Queensland and neither have I.
Well Sydney's not in Queensland. It's an option offered here. My question was, In November '01 was he putting pressure on you to sell everything up and move to Sydney or Brisbane?......Around that time when his depression was recognized until he was treated---
Mrs Partridge, was---…..---he was putting pressure on---
Mrs Partridge, please, was he doing that or wasn't he, yes or no?.......He was putting pressure on me because he wanted to move to the mainland.
Was he putting pressure on you in November 2001 to sell up everything and move to Sydney or Brisbane?........Not to Brisbane and, yes, he was putting pressure on me.
To sell up everything and move?.......I don't know---
We're narrowing it down. Was he putting pressure on you to sell up everything and move, Mrs Partridge?.......He was putting pressure on me about all sorts of things at that time, yes.
Was he putting pressure on you to sell up and move?.......My understanding was that he was putting pressure on me to sell our home, but he wanted to move to the mainland, to Sydney.
I think we might have got there. You say it's just the home…….Yes.
So how were you going to run Tingletree from Sydney?......I couldn't. That's why I didn't consider doing it myself. That's why no matter what Tim---
Tim wasn't suggesting that to you, was he?......It doesn't matter what Tim wanted, sir, I had a business to run. Tim had already moved from Sydney because I wouldn't move from Tasmania when we first met. He moved from Sydney and from that lifestyle to come to Tasmania to live with me and he helped me with my father. However, from time to time---
Mrs Partridge---……---he was dissatisfied here."
For an attendance on 10 January 2002, Mr Hamer has noted "Mostly discussing issues with boat/repair/finances. Tim's solution – sell up." The plaintiff accepted that it was something she said to Mr Hamer "in some context". She said she told Mr Hamer this because she would have been irritated by Tim's attitude. Of greater significance perhaps is an entry dated 10 January 2002. After noting a discussion about the positives and negatives of a Christmas break, the note reads "Seems to lean toward selling business – more decided about moving to warmer climate." When the note was read, the plaintiff said that it was "Mr Hamer's note to himself. I'm sorry, but I didn't want to ever leave Tasmania, I was born here, I had my business here, so whether he was referring to Tim, whether he was referring to my mother going to Perth to live with my brother, John, because it's warmer weather there when she retired, I do not know what he was referring to. I only know what is in my – what was in my mind and what my intentions and decisions were." The plaintiff agreed that the note appeared to be Mr Hamer's conclusions reached from his discussion with her, but said that the cross-examiner would need to ask Mr Hamer. She was asked whether by the beginning of January 2002 she was leaning towards selling the business and moving to a warmer climate. The plaintiff replied "No, not me."
The next entry I want to note for these purposes is one of 6 June 2002. The note reads "Discussing pros/cons of selling again – moving to Qld – part of her 'dream' – live on boat – work in a childcare centre or do relief teaching in primary school. Has interest from a National group to buy Tingletrees. Tim will have much more work – will be happier. Seems upbeat today." The plaintiff said "I disagree" when it was put that the note reflected the reality of the situation. However, she did not deny that she had told Mr Hamer what was recorded, but seemed to suggest that it did not relate to her. When asked about the note of her being "upbeat", she said that was correct "because Mr Hamer and I were doing an exercise in fantasy, you can see that from that list that [was] read out to me earlier". She went on to say that "it was an ongoing theme where I would develop a fantasy of life in which everything would be terrific. He will tell you". In the period following the accident there are similar references to moving. For instance, on 8 August 2002: "Tim seems impatient about moving – has had contact re music work on mainland – urging Moira to sell". On 10 September 2002 there is a note of discussing the "pros and cons" of selling the business. The positives were moving to Sydney or Queensland, living on the boat and being able to disentangle herself from her mother. The disadvantages were that she had enjoyed working with the staff and would miss them.
As can be seen, the plaintiff at one point asserted that there were mistakes in Mr Hamer's notes. At another point she said that she did not believe he plucked anything out of the air and at another point said that what was obviously an entry contrary to the impression she was attempting to convey, was a note that Mr Hamer made for himself. Significantly, at one point of the cross-examination on the notes, the plaintiff said that "I didn't tell him a lot of the things he wrote down." In re-examination, the plaintiff was not asked any questions as to any of the things she had said about Mr Hamer's notes. I have already set out the basic question which was asked of Mr Hamer by the plaintiff's counsel. No questions of inaccurate note taking, the noting of assumptions or his conclusions rather than what was said, or the issue of the fantasy exercise were raised with Mr Hamer at all. The subject-matter of the notes was tackled rather obliquely by a question as to what their purpose was. He said that their purpose was to remind him of the emotions that were being experienced during the session so that it was a memory aide for him so that he knew what had gone on in the previous sessions. He said that he did not pay attention to fine detail, but more the emotions and how the plaintiff had been feeling, and the result that had "the behaviours that have been the result of those emotions".
Mr Partridge said that when the Serendipity was bought, it was his intention that the boat would be sailed. He agreed that they had talked about living on a boat before that particular yacht was located. He said that he agreed that in 2001 he had talked with the plaintiff about living on a boat "among other things". However, he denied that there had been talk in 2001 of selling the business. He said that she had no intention of selling the business and that he "of all people, wouldn't have been able to persuade her". He thought that it would have been early 2003 when there was the first indication from the plaintiff that she would sell Tingletree. The cross-examination continued:
"The two of you had, for some time, before the date of her accident in June 2002 discussed going to live in a warmer climate, hadn't you?......Um, from time to time we discussed things like that. One of the things we talked about was going to the Greek Islands.
Well, you had, in fact, discussed going to live in Queensland or northern New South Wales, hadn't you?.......No, we've discussed going to Queensland. Neither of us would ever live in Queensland.
You had discussed going to live in northern New South Wales?......No. We had no knowledge of northern New South Wales. We had discussions about - in the early 90s when I in fact was living in New South Wales.
Did you discuss going to live in Sydney?......Then we did in I think '91.
In 2001?......No.
Never?.......No, no.
Weren't you putting pressure on Mrs Partridge to sell up and go to live in somewhere up in northern New South Wales or New South Wales or Sydney and eventually live on a boat?.......No, not at all.
Absolutely not?"
Mr Partridge was asked whether there had ever been any discussion between the two "about anything of that kind whatsoever … in 2001". Rather than answer, Mr Partridge said that it required an explanation. After my intervention, he answered "Yes", and said that he would like to explain, the opportunity to do so not arising until re-examination. In the meantime, when discussing the respective costs of staying at Booker Bay and on the yacht at Yamba, he was asked whether living on the boat was the end point of a long-term plan. He replied "No, It was one of the options that we discussed for years." The explanation Mr Partridge offered in re-examination was as follows:
"In 2001 we discussed many many options, as we do most years, including this one, but in 2001 we were discussing sailing around the world, going to the Greek Islands, I think in 1999 or 2001 we had a month on a house boat on the Murray River as our annual holiday, and we thought we could actually so something like that. But at no stage did the idea of selling Tingletree, which eventually Moira would inherit from her mother, the other half, as her super, at no stage did that ever occur to us. We considered we could do all of these things and she could still work in – at Tingletree and continue to own it and run it, even if she wasn't physically there for a few months, or even in fact a year. The other – in 2001 we discussed getting another boat, a bigger boat, and the options with that boat were; firstly to bring it down; secondly we could leave it was; thirdly we could park it somewhere like Mackay and use it for several months a year as our holiday home. We also had – we wanted to buy a boat that also had some options of perhaps retiring and sailing off around the world, so we bought one that was capable of doing that. Now we discussed these things and planned at great length, and I believe we were probably already looking on the Internet for boats, which is where we actually found this boat."
Comments
Two issues arise. The first is whether the discussions about "selling up and moving north" were exercises in fantasy as the plaintiff represented them to be, or were instances of the plaintiff raising her concerns about the pressures being brought to bear by Mr Partridge in this respect. Mr Hamer's unchallenged evidence, and a reading of the whole of the notes, must lead to a rejection of the plaintiff's evidence. That leads to the second issue, which is whether, having regard to Mr Partridge's evidence, they are both being untruthful as to the extent and seriousness of their discussions about moving, or whether Mr Partridge's evidence is to be accepted – the consequence of that being a conclusion that the plaintiff was exaggerating and misrepresenting to Mr Hamer the true domestic situation.
In terms of the plaintiff's credibility, I have no hesitation in dismissing the plaintiff's efforts at avoiding the obvious implications of Mr Hamer's notes, and her attempts at explaining their content. Mr Hamer's evidence alone makes it quite plain that the plaintiff was discussing with him the possibility of selling up and moving to a warmer climate somewhere near Sydney or in Queensland. Whether or not the plaintiff seriously contemplated the move is a separate question. What my particular concern is that no doubt the plaintiff understood the ramifications for her damages claim which would follow from the active discussion before the accident, of a move to the mainland. As the transcript shows, the plaintiff was evasive and her attempts to explain the notes of her discussions with Mr Hamer, given Mr Hamer's evidence, have a serious negative impact on her credibility.
Sailing and driving activities
As part of this discussion, I need to explain some of the events which occurred during the trial. A subpoena had been issued for documents in the possession of the plaintiff's accountants, KPMG, that subpoena being returnable on the date on which the trial commenced. That subpoena was not complied with until after the plaintiff had completed giving evidence some days later. As it turned out, the subpoenaed file contained cards and letters written by the plaintiff and sent to KPMG personnel. The contents were unhelpful to the plaintiff's case. The accountant particularly involved with the plaintiff's affairs, Matthew Wallace, was called to give evidence, and two cards and two letters were tendered in his cross-examination. After the brief evidence of three further witnesses, leave was sought for the plaintiff to be recalled to give evidence about these documents. I granted that leave notwithstanding the defendants' opposition. I will set out relevant extracts from the documents and then the plaintiff's evidence.
The first of the documents is a handwritten Christmas card signed by the plaintiff and addressed "To dear Matthew and family". A reference in the text suggests that it was sent at Christmas 2004. In the card, the plaintiff expresses her appreciation for Mr Wallace's efforts. Under the heading "And now for some gossip!!" the plaintiff' refers to her mother "still struggling on", and says that her mother's great sadness is to see that to actually make a profit in children's services the first victim is quality. "That, aside from my back injury is why I could not stay beyond the sale". The plaintiff goes on to say:
"Tim and I are really in beautiful surroundings here on the Central Coast … We couldn't be happier!!! We traded our cars for a great diesel jeep (along with the business money). We sold our house and bought a 39 ft Pacific Challenger in perfect condition which we paid 170K for and own outright! … and in March 2005 we head off to sail around the Pacific. I can't wait!! The year ahead will be full of courses on navigation, computers, etc and we'll be sailing up the Coast."
Enclosed with that card were two photographs, one of the rented property at Booker Bay and one of the Serendipity.
The second document comprises two parts. There is a small Christmas card sent at Christmas 2005 addressed "To Matthew and family (Neil, and all the wonderful people at KPMG)". It contains the following:
"Matthew – thanks SO much for helping my lawyer with my case re my permanent back damage – it's horrible; but we try to stay positive. (No choice there) I'm on a disability pension & poor Tim is my 24hr carer so we're broke AS. But determined to have a life!!!"
The second part of this exhibit consists of two printed pages on which there are background photographs of the plaintiff and her husband standing on the yacht, and one of the yacht itself. The heading is "Christmas greetings from the SV Serendipity". The opening words are "Happy Christmas to everyone!" The relevant parts are as follows:
"We are thrilled to be spending our second Christmas aboard our yacht Serendipity and have lived and cruised on her now for 16 months. The experience thus far has been amazing and we can't imagine ever living on 'land' again! Hard to describe really; physically tough but pierced with moments of absolute wonder; like electrical storms at sea; dolphins playing across the bow; sunrise on the ocean; waves crashing over the top! …
So far we have cruised from Brisbane to Sydney, explored the Hawksbury River and sailed north to Yampa, where we will summer; and then head further north to the Bunker group of Islands and the Whitsunday Islands for the winter.
…
[References follow to meeting people "in our travels", to Yamba itself and the plaintiff's heart surgery]
…
Until we leave Yamba we will both continue to study and learn more about our new lifestyle. Tim competes in the local (but extremely fierce) yacht races run by the Port Yamba Yacht Club on several of the local boats, … I have almost completed my new degree in Counselling and I am now qualified as an Inshore skipper (able to skipper a tourist/commercial vessel up to 200 miles out to sea!) We so hope our knowledge will keep us out of trouble at least!"
The third document is a handwritten letter addressed to Matthew dated 8 February 2006. It contains references to superannuation, KPMG's accounts and fees related to her heart surgery. The concluding paragraph contains the following:
"Anyway I'm still alive & kicking; studying Journalism Degree & Counselling Degree during this quiet time in life & enjoying being on the water. Yamba is fantastic – if every you're up this way please ring, visit & come for a sail – I'm an 'Inshore skipper' now so you'll be in (relatively) safe hands."
The plaintiff goes on to say that her mother retired in December 2005, that she [the plaintiff] was in shock and "will never know what difference it would have held [sic] had it occurred a few years earlier".
When the plaintiff was recalled to give evidence about these matters, she was first taken to the two-part second document and the main part of that, which was described as a computer-generated newsletter. She was asked what it was intended to convey. She replied, "It was intended to convey basically that I'm not a loser … It's intended to convey thanks for good wishes, a happy Christmas and it was intended to convey that my life was wonderful". She said that the references in particular in the first two paragraphs to sailing activities was not accurate. She was asked what she was intending to convey to Mr Wallace by relaying that information. The following exchange occurred:
"That I wanted to him to believe that I had a full and happy life because I had great self-esteem issues after stopping work and losing everything and I'd always had a professional relationship with Matthew, and mixed in, perhaps, those sort of circles and I didn't want for him to think that we were just down and out – I was disabled and broke, a loser in other words.
And does that explanation go for the balance of this document, insofar as it refers to a happy life that you were having up in the north of the country?…….Yes, definitely.
And in terms of reference to sailing and the like?…….Yes."
The plaintiff was shown the first document, the 2004 Christmas card. She agreed that it was a document "which had emanated" from her. She was asked whether she recalled sending it. She said "I actually don't recall any of this stuff, but it is my stuff and once I was shown it I remember." Her attention was taken to the particular reference to the intention of sailing around the Pacific in March 2005. She said that was not "representative" of her intention at the time she wrote the card. She said that she recalled writing the card and when asked to explain why she had said things which were not accurate – what her intention was in saying those things to Mr Wallace. She said:
"Well it's the same thing to um – Matthew indicated to me that he was pretty sad about my life and I am a private person and the peripheral people like Matthew I didn't want them to know the details of my life and so I lied in the card, but I wasn't under oath, but I lied in the card."
As to the letter of 8 February 2006, the plaintiff was asked what she intended to convey by inviting Mr Wallace to come sailing with the suggestion that she was an Inshore skipper. As to this, the plaintiff replied:
"Well I was doing the course at that time and as always through – throughout these years I had an expectation of getting better in some way, and just conveying to him that – that I have tenacity, that I hadn't given up on life all together and that there were – my brain was still working."
In cross-examination the plaintiff was taken to her explanation that she did not want Mr Wallace to think that she was "down and out, disabled and broke; a loser in other words". She confirmed that she did not want to convey to him that she was a loser, had nothing to offer or nothing to contribute, and had no semblance of a life left. When asked whether she had said in the Christmas card of 2005 that she was "broke as", she said that she had not "seen the thing since yesterday but I could have, but I probably reiterated that I was happy". When the question was repeated, the plaintiff said she did not remember. The question was repeated; the plaintiff said "I don't remember. I saw the paperwork yesterday but I don't remember what's in it." She said it was possible that she had told Mr Wallace that she was on a disability pension but she did not remember the words that she had read yesterday. The questioning continued:
"You knew when you gave your evidence yesterday that unless you told the court that the contents of the cards and the letter to Matthew and Neil were not accurate it could impact badly on the case, you knew that, didn't you?......Well I think it has. I'm not---
It's something you knew when you came into the witness box?.......Today?
Yesterday?.......Yes."
Under further questioning, the plaintiff agreed that she had said that she had permanent back damage, it was horrible, that she was on a disability pension, that poor Tim was her 24 hour carer and they were "broke as". The exchange concluded as follows:
"You lied to the Court in your evidence yesterday when you said that you didn't want Wallace to think that you were just down and out:
I was disabled and broke, a loser in other words.
That was a lie, wasn't it, Mrs Partridge?……I didn't – I didn't want Matthew to think I was a loser.
No, answer the question, Mrs Partridge. That evidence was a lie, wasn't it?……No, sir, unless I misunderstand your question, no.
You attempted to lie – sorry, you lied yesterday in an attempt to assist your case, didn't you?……No, I did not. In this Christmas card in this letter I was –
Yes, if it please, your Honour……- not under oath, in court I'm under oath." [Emphasis added]
Following the plaintiff's evidence and before her case was closed, an adjournment was sought to enable investigations to be carried out with a view to assembling and putting before the Court evidence concerning the movements of the Serendipity and the use of the yacht from October 2003 until the date of the trial. The adjournment was opposed. I ruled in favour of the plaintiff and the trial was adjourned, for about two months over the Christmas break. When it resumed, the plaintiff called John McInerney, who had, as noted, assisted Mr Partridge with the movement of the yacht from South Queensland to Booker Bay, and William Kesby who, as also noted beforehand, had assisted in the movement of the yacht from Booker Bay to Yamba. Two employees of the Yamba Marina who worked in the office were also called.
At the end of that evidence, a further application to recall the plaintiff was foreshadowed. This related to a "voluminous amount of bank statement documentation" which had been returned to the Court on subpoenas issued by the defendants. I was told that the plaintiff had prepared handwritten memoranda relating to that bank documentation. Other bank documentation which the plaintiff had not seen was mentioned. The end result was a short adjournment. Upon resumption, the plaintiff's counsel said that it was not proposed to call any more evidence and the plaintiff's case was closed. The first defendant then tendered the November 2007 teacher re-registration material which I will deal with next, whilst the third defendant tendered four bundles of bank statements relating to various accounts of both the plaintiff and of Mr Partridge.
Southport to Booker Bay
The evidence establishes that the Serendipity was purchased in Manly in Brisbane. It was sailed from Southport to Booker Bay in November 2003. Mr McInerney gave evidence that he, Mr Partridge and a professional skipper hired for the purpose sailed the yacht to Booker Bay. He said that the plaintiff was on the marina at Southport as they sailed away. The plaintiff denied that she and her husband "had delivered" the boat from Manly to Booker Bay, and that she had sailed with him on that occasion. Mr Partridge's evidence was that the plaintiff was staying in Booker Bay during the journey, with the mother of a friend of his with her. Mr McInerney said that he did not see the plaintiff after Southport and that she did not participate at all in the trip. Both Mr Partridge and Mr McInerney were asked about the ports of call during the trip south. They called in at Coffs Harbour, Laurieton, Nelson Bay and Pittwater. Bank records of the plaintiff's tendered during Mr Partridge's cross-examination are significant. They show cheque, credit card and cash card transactions. The account is in the plaintiff's name only. I am satisfied that the entries show the following:
· the hire of a car in Brisbane on 19 November 2003 for $601;
· various credit card transactions with "Muir Marine (QLD)" between 19 and 21 November 2003;
· a cash withdrawal from Manly on 22 November 2003;
· a cash withdrawal at Southport on 28 November 2003;
· a cash withdrawal at Coffs Harbour on 2 December 2003;
· cash withdrawals at Nelson Bay Marina on 5 and 9 December 2003.
Booker Bay to Yamba
Moving the yacht to Booker Bay took place in October 2004. There is no direct evidence from either the plaintiff or Mr Partridge as to the plaintiff's whereabouts during this trip. Mr Kesby gave evidence that he and Mr Partridge sailed the yacht on this journey north. The ports of call were Nelson Bay and Camden Haven which is just south of Coffs Harbour. In cross-examination he said that the trip took quite a while because at two stages they were caught by bad weather. The stopover at Nelson Bay was about a week, during which he actually went back to his boat at Booker Bay, and the stopover at Coffs Harbour was a few days as well. He first said that he did not see the plaintiff in Nelson Bay, nor at Coffs Harbour, nor at Yamba when they arrived there. However, he was shown a document which he had signed as a witness to the plaintiff's signature at Nelson Bay on 18 October 2004. It was put to him that the plaintiff was "tracking the yacht in a car – as the yacht went north she drove north". He said he did not remember that, but that it was possible because they were in Nelson Bay for a long time. He said that the plaintiff must have driven up and he has signed the document. He said his conclusion as to her driving up was simply based on the fact that she was not on the boat so that was the only thing he could think of. He said that the drive from Booker Bay to Nelson Bay was about two hours.
Further bank records of the plaintiff which were tendered as part of the third defendant's case show the following:
· transactions at and near Booker Bay on 13 and 14 October 2004;
· credit card transactions and cash withdrawals at Nelson Bay and Nelson Bay Marina between 21 and 25 October 2004;
· credit card transactions and cash withdrawals at Coffs Harbour on 28 and 29 October 2004;
· credit card transactions at South Grafton and Yamba on 1 November 2004.
Miscellaneous evidence as to sailing/driving activities
There is further evidence as follows:
· In a letter dated 20 July 2005 to Dr Dixon, one of the plaintiff's treating specialists, the plaintiff said "We love Yamba very much and have been back to visit my mum in Tassy since I saw you last. I have coped on the boat (just) but we haven't sailed anywhere since our arrival (unless Tim's mates come along and I'm only a passenger)";
· Mr McInerney said that in September 2005 when he stayed with the Partridges at Yamba, they (including the plaintiff) motored the yacht from Yamba up the Clarence River to the Pacific Highway Bridge, stayed the night and motored back the next day. That was all done under motor and on very calm flat water;
· Mr Kesby also said that he had a recollection – not a strong one – of the Partridges going out with friends "and going sailing up the Clarence River" when at Booker Bay. He described barbeques which would often occur on the boat, usually on the Partridges' boat, but sometimes on his. In that context he spoke of the plaintiff getting from boat to boat in a tender, and he said that he saw both Moira and Tim using that tender "not to get to other boats but just choofing around [for] enjoyment".
The evidence of the plaintiff and Mr Partridge, together with the bank records tendered by the third defendant as part of their case, also reveal some interesting patterns relevant to the plaintiff's capacity to travel in a motor vehicle. It is accepted that in April 2005 the couple travelled by car from Yamba to Hobart and returned the same way. The bank records divulge the pattern of the trip. It would seem that they left Yamba on 7 April, Mr Partridge's records showing activity at Albury on the same day. Further activity in that account at Elizabeth Town in Tasmania on 15 April would suggest a ferry trip the previous night, the plaintiff's records showing activity at St Kilda on 11 April. There is activity in Mr Partridge's account both in Hobart and Ulverstone on 18 April, and back in Hobart on 19 April. When asked whether she recalled coming to Tasmania in April 2005, the plaintiff said she recalled having more than one trip back but cannot recall the dates. She was asked whether there was an occasion when she came back to Tasmania when she was left alone while Mr Partridge went off elsewhere, the reply to which was "not without being cared for by my mum". In any event, the records indicate leaving Hobart on 21 April, being in Sydney on 22 April, and back in Yamba at least by 26 April.
As revealed by the records of transactions in both accounts, there are three further apparent driving trips. (There is no direct evidence of the mode of travel, but the details make it more likely than not to have been a motor vehicle of some description. The record do not reveal the purchase of airline tickets.) The trips are as follows[1]:
· Yamba to the Gold Coast via Asquith (just north of Sydney) and return between 1 September and 26 September 2005, the total distance being approximately 1,600 kilometres. The plaintiff's records have her at both Asquith and Coolangatta on 14 September, a distance of some 800 kilometres.
· Yamba to Tewantin (just east of Noosa Heads area) between 3 April and 9 April 2008, the one way distance being some 425 kilometres. The total return distance involved is approximately 850 kilometres.
· Yamba to Kincumber (south east of Gosford) to Towadgi (just north of Wollongong) and return via Kincumber between 6 November to 10 November 2008, the total return distance involved is some 1,600 kilometres. The records suggest travel from Kincumber south to Towadgi on 8 November, returning to Kincumber on 10 November and then back to Yamba on the same day or the next day. Kincumber to Yamba is about 620 kilometres.
[1] These distances were asserted by counsel for the defendants in joint closing submissions. It was submitted that I could, by virtue of the Evidence Act 2001, s144(1)(b), inform myself of the place locations and the relevant distances by the use of maps. Reference was made to Odgers, Uniform Evidence Law, 8th ed, at 758 [1.4.600] in which the author says that the provision should permit reference to such things as street directories. Neither the distances asserted nor the proposition that I could inform myself by way of appropriate maps was challenged by counsel for the plaintiff. The issues were not addressed at all. Accordingly, in the absence of any dispute, I have verified the distances by use of Google on-line maps.
There is further evidence of substantial travel of a similar nature. The plaintiff makes a claim for accommodation expenses on two occasions associated with the yacht being put up on a stand for cleaning. She says that she is unable to climb the ladder to the yacht when it is on the stand. Two receipts were put in evidence in relation to this claim. The first is from Dockside Central in Ferry Street Kangaroo Point, Queensland. When referring to this receipt, the plaintiff agreed that it related to accommodation "at a local hotel or something of that sort", going on to say "… actually it's Kangaroo Point and it's just over the border from where we live but I believe my mother was actually on a conference at that time so I took that opportunity to stay near to where she was staying". Ferry Street, Kangaroo Point, as disclosed on the receipt has a postcode of 4169. It is in Brisbane, close to the Brisbane River. Yamba is approximately 285 kilometres from Brisbane. The second receipt was said to relate to accommodation "in the same circumstances as the earlier one … referred to". Doing the best I can with the faded receipt, the accommodation was at Bilinga, which is close to Coolangatta, some 190 kilometres away from Yamba.
Comments
I do not think that too much really needs to be said about all of this evidence; the impact of it is to a large extent self-evident. As to the KPMG correspondence, I found the plaintiff's evidence as to why she wrote what she did, to be rather unconvincing. The assertion that she did not want to be regarded as "a loser" with "no semblance of a life left" does not sit happily with her comments in the Christmas 2005 material to her permanent "horrible" back damage, and being on a disability pension, with Mr Partridge as her 24 hour carer, and effectively being penniless. However, I do not believe that all of what the plaintiff said in this correspondence as to their activities was true. Much was exaggerated and untrue. However, I think that there is an element of truth in it to the extent that it discloses an enjoyment of the lifestyle and a level of activity at odds with what was asserted in the trial. In relation to the yacht movement trips, it is possible of course that Mr Partridge was using the plaintiff's card. However, in relation to the Southport – Booker Bay trip, the fact that Mr McInerney saw the plaintiff at the Southport Marina and the extent of the car hire rental, makes that improbable. Similarly, in respect of the Yamba – Booker Bay trip, I am satisfied that the plaintiff was at Nelson Bay on 18 October 2004 and that this supports the inferences to be drawn from the bank records. Despite foreshadowed evidence from the plaintiff in relation to the bank statements, none was forthcoming. In those circumstances in which the plaintiff had the power to contradict this evidence, I am more confident in drawing an inference adverse to her: Blatch v Archer (1774) 1 Cowp 63 and Jones v Dunkel (1959) 101 CLR 298, as discussed in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 at [436] – [455]. In both cases I find that it is more probable than not that the plaintiff was following the journey of the yacht.
The further evidence of the plaintiff's level of sailing activity and the use of the dinghy, of very limited scope though it might be, needs to be put alongside the evidence of the driving trips. One important point about the dinghy use is that, as will be recalled, the plaintiff related the move to Yamba because they were required to live on the yacht and she could not use the dinghy to access it when on a mooring. In my view, the totality of the evidence shows a level of activity quite at odds with the picture the plaintiff wanted this Court to accept. The driving trips themselves show a level of activity and a capacity to tolerate sitting for long periods greater than that asserted.
The application for teacher re-registration
In November 2007 the plaintiff applied to the Teachers' Registration Board of Tasmania for renewal of her teacher registration which was due to expire on 31 December. Registration lasted for three years. The four-page application was included amongst documents returned to the Court in January 2010 in obedience to a subpoena. It was tendered as part of the first defendant's case. The document is a pro forma application and concludes with a statutory declaration by which the applicant solemnly and sincerely declares that the information provided in the application and information contained in the documents accompanying the application are true and correct to the best of the person's knowledge and belief. The declaration is made under the Oaths Act 2001. The applicant completed the statutory declaration before a justice of the peace at Yamba on 30 November 2007.
The first part of the form requires the applicant to declare what professional development had been undertaken during 2005 – 2007. The following appears as part of the instructions:
"Note: Professional development consists of all those activities and practices which contribute to a teacher's professional competence, directly or indirectly enhancing teaching and learning."
Under this note, the following appears in handwriting:
"NB. Much of my time is spent in a voluntary capacity (pending my last set of back operations) learning about, and working with indigenous groups of chn; in community arts and crafts programs and 'at risk' chn, in holiday activity settings. I hope and intend to return to Tas asap!! also completing Journalism degree & writing to be published."
The applicant is required to list in the form up to five professional development activities, and as to each activity, provide the time spent – in hours, and the provider. The plaintiff provided the following information:
·Dip Professional Counselling – Specialising in Family and Chn's Counselling and Trauma – 1,659 hours – Aust Institute.
·Meditation, Tai Chi, Tse Gung – 500 hours plus – Local Community Orgs.
·Volunteer coastguard duties – 30 hours plus – coastguard NSW (Y/I).
·Team/Crew Leadership & Training – 60 hours – IASS (International) Accred.
·Professional Skipper's Licence (includes leadership p/delegation/safety (medical/legal/team-building/rescue/reporting/navigation/etc) – 180 hours – IASS (International) Accred.
The first thing to be noted is that the plaintiff has not had any "back operations" as that would be commonly understood, let alone a "last set". She had a discogram performed at L5/S1 level and a bilateral L4/5 facet block procedure, both in early 2004 which are the only intrusive medical procedures which she has had. The plaintiff's evidence about some of these things was that she enrolled in a diploma of professional counselling course but was unable to complete it because of her inability to attend practical placements and collaborate with other students. There was evidence about the completion of the theoretical part of a sailing course to inshore skipper level, but again she could not participate in any of the practical parts of that course. In cross-examination it emerged that there were two courses related to sailing, as to both of which the theoretical part had been completed. She had two certificates to say that she had completed the theory aspects of an inshore skipper's course and those of a "competent crew level 2 course". The plaintiff agreed that even had she completed the inshore skipper's course it would not have enabled her to operate any commercial vessel but entitled the holder to take charge of a crew and persons aboard a boat up to a certain number of miles off shore. There was no evidence at all of the plaintiff carrying out any voluntary work with indigenous groups of children, in community arts and craft programs, or with at-risk children in holiday activity settings. Nor was there any evidence about volunteer coastguard duties.
The second claim is for $800. It relates to the asserted need for an occupational therapist to visit and make recommendations in relation to any house to which the plaintiff may move. Although the heading of the claim mentions "driving licence expenses" the claim for which is based on a further aspect of Mrs Berger's report, this is not particularised and I assume no claim is made[5]. I am not satisfied that the plaintiff's injuries have created a need for home assessment, or alternatively that there is any real benefit to be derived from the cost. I declined to make any further award under this head.
Travelling expenses
[5] It is suggested in the report that if the plaintiff wishes to resume independent driving, she may require modifications to the safe steering and acceleration and braking, which will need to be assessed by an occupational therapist trained in driver assessments. It is said that six hours of assessment, driver's instruction time at $50 per hour, and a series of sessions to determine specific modifications and education and safe usage, is required.
The agreed rate for travelling in a motor vehicle is 40 cents per kilometre. There is a claim for past travelling expenses relating to medical treatment, assessments and investigations whilst living in Hobart, at Booker Bay and at Yamba. The total claim for past travelling expenses is 2,600 kilometres, making a claim of $1,040. A considerable portion of the amount travelled, 1,500 kilometres, relates to a visit to Dr Dixon in Hornsby whilst the plaintiff was living at Yamba. Dr Dixon's file makes it clear that this was an appointment arranged by the plaintiff's solicitors to obtain a report for the purposes of the action. That part of the claim should not be allowed. There is also a claim for 15 kilometres relating to 15 visits to Dr Trichard or Dr Groves, the evidence from Mr Partridge being that the surgery was only 250 metres from where they lived. For reasons which I consider are obvious, I do not regard a claim for travelling in a motor vehicle to that extent to be reasonable. Otherwise, proceeding on the basis of the plaintiff's evidence as to frequency, Mr Partridge's evidence about distances, and a number of concessions made by the defendants in closing submissions, I allow a claim for 1,273 kilometres, a total of, say, $510.
As to future travelling expenses, the plaintiff accepts the difficulties with quantification. It is suggested that there would be one attendance upon a specialist at either Hornsby (1,500 kilometres) or Sydney (1,560 kilometres) every five years for the balance of the plaintiff's life. That amounts to $1,633. An allowance for additional travelling in relation to other treatment and therapies, at 40 cents per kilometre, amounts to approximately $400. In relation to that aspect, there is no evidence as to the whereabouts of any health care provider which it is likely the plaintiff would attend. Taking a broad approach, I consider that it is reasonable to allow the sum of $1,000. That makes the total claim for travelling expenses $1,510. The defendants claim that, at least as far as the past claim is concerned, the evidence shows that the travel "was gratuitously provided" by Mr Partridge and occasionally Mrs Beven. They argue that on that basis the Common Law (Miscellaneous Actions) Act 1986, s5, precludes recovery. I reject this submission. Travelling expenses which relate to costs incurred by the use of a motor vehicle does not amount to "compensation for the value of services of a domestic nature or services relating to nursing and attendance" within the meaning of s5.
The sale of Tingletree
The claim is for reimbursement of expenses incurred in relation to the sale of the business and the winding-up of the company. The claim is for $2,200, in support of which an account from KPMG dated 18 December 2003 was tendered, the plaintiff agreeing that it was an account relating to her "half share of the wind-up costs associated with the Tingletree company". The account is for $4,650, together with GST, making a total of $5,115. There are four items on the account, the two most substantial items relating to the preparation of interim financial statements to the period 30 September 2003, with a review of accounts and calculating estimated payout figures from the winding-up, and the preparation and lodgement of Business Activity Statements for the months August to November 2003 inclusive. I need not consider whether some of these costs would have been incurred in any event, because I have come to the view that no part of the claim should be allowed. That is because I consider it probable, as previously discussed, that the business would have been sold within a few years in any event. There is nothing to suggest that an earlier sale created any additional expense.
The sale of the home
The claim is for $15,120.20 which is made up of solicitor's fees, real estate agent's commission and fees and bank fees, together with a Telstra disconnection fee. The claim is made on the basis that the sale of the business made it no longer possible to service home mortgage repayments. I have already dealt with the sale of the house, the plaintiff's financial circumstances at that time, the rental of the property at Booker Bay, and the purchase of the yacht. On the whole of the evidence, I am not satisfied that the defendants' negligence caused or contributed to an impecuniosity such that required the house to be sold. Moreover, I think it is probable that the sale of the house would have accompanied the sale of the business within a few years in any event. No award will be made under this head of damage.
Yacht safety expenses
This is claim for $464.93 for four items of equipment and two nights of accommodation, one in December 2005, and one in July 2007. They are put forward as expenses incurred in relation to the safety associated with the plaintiff living on the yacht. The evidence was that the two nights' accommodation were for the plaintiff when the yacht was out of the water on a stand for cleaning and anti-fouling processes, the assertion being that the plaintiff could not get up and down a ladder to be on the boat in that situation. Leaving aside the issue of whether each item claimed was expense reasonably incurred, the entire claim is based on the proposition that there was an injury-created need for the plaintiff to live on the yacht. I have already dealt with that. I am not satisfied on the balance of probabilities of that proposition, and this claim must fail.
Having said that, there are some features of the claim which should be mentioned. There is a claim for $45 for a "safety step". There is a receipt from Yamba Trading Co said to relate to this safety step. The only evidence of a step used from the marina walkway to the yacht is that of a red plastic milk crate with a sheet of plywood attached to the top. Mr Partridge said he got the milk crate from the Marina Café, and somebody gave him a piece of ply ready cut to put on top of it. Mr Kesby helped Mr Partridge in putting this milk crate step together.
Furniture storage expenses
The plaintiff has claimed the expense of storing furniture and household contents whilst they are living on board the yacht from 7 December 2004 and continuing at the rate of $30.50 per week until she is able to relocate to a domestic dwelling. The past claim is now about $9,120. For the reasons which I have given, I do not consider that this is a proper claim. The need to live on this yacht was not, in my view, caused by the defendants' negligence.
Study and other rehabilitation expenses
The plaintiff claims the sum of $2,765.41 for what are said to be study and rehabilitation expenses "thrown away". The expenses of a retraining course may be properly recovered if they are costs reasonably related to mitigation of damage: Tuncel v Renown Plate Co Pty Ltd [1976] VR 501. A two-page handwritten list, together with a bundle of receipts, was produced in support of this claim, the plaintiff saying that it was a list of expenses incurred in pursuing the three courses; namely the Diploma of Children's Journalism course, the "inshore skippers" course, and the Diploma of Professional Counselling course. The first course was commenced before the accident, the second two, judging by the dates in the handwritten list, commenced in 2004, the last dated receipts being for July and December 2008. It is not clear from the evidence when each of these courses was abandoned.
The first matter of note is that an amount of $211.50 paid in November 2004 is for the plaintiff's re-registration with the Tasmanian Department of Education. No doubt that is an expense which would have been incurred in any event. Much of the list is made up of stationery, including a printer and paper, postage and associated items, together with a few text books. It is not possible to divide these costs between the three courses. The plaintiff's evidence was that $750 was paid for the children's writing course, although the handwritten list claims $700. Additionally, there are receipts from the New South Wales Counselling Association and the Australian Counselling Association for annual membership fees in January 2005 and January 2006 respectively. It is not clear why these payments were necessary to pursue the counselling course. The plaintiff's evidence was that the main reason for undertaking this course was to maintain her teacher's registration. She said that she checked with the Registration Board and that the sailing course also fitted "the parameters of being an avenue of study to keep my registration for teaching current even though I was disabled".
All in all, I am not satisfied that these expenses should be allowed as reasonable costs incurred in the mitigation of damages. As to the sailing course, I take the view that it was far more a matter connected with the plaintiff's interest in sailing, than something done with a view to maintaining her teacher's registration. As to the other two, the plaintiff's reasons for not continuing them were that she could not do the writing and keyboarding necessary, particularly for the journalism course, and could not physically deal with the practical components of the counselling course. I am not satisfied that her level of disabilities were such that the failure to complete these courses can be attributed to her injuries to the extent that the defendants should be required to pay the costs.
Medicare reimbursement
The amount claimed is $1,396.70 which, although it is conceded that some deduction is appropriate to take account of the fact that a component of the attendance is related to medical issues not accident-related. There is nothing in the evidence to guide me in this deduction. I will allow $1,000.
Tax on weekly payments of compensation
The net payments of weekly payments of compensation have been included in the claim for past loss of earning capacity. The tax paid on that compensation is $3,764.84. That should be allowed in full by virtue of Fox v Wood (1981) 148 CLR 438.
Pain and suffering; loss of amenities
I see no need to revisit the relevant evidence. I think I have sufficiently summed up earlier in these reasons the plaintiff's situation as I view it. I accept that she has had a back injury of moderate severity and that she suffers pain and discomfort to a varying extent. There was a need for various treatment regimes for about two years, and there is an ongoing need for analgesic use. The plaintiff also has difficulties with her knee, although that is of far less significance, and whatever symptoms remain from her hand injury, are of nuisance value only. She will continue to suffer to one degree or another in the foreseeable future, but I do not accept that her level of pain and suffering, and the loss of amenities of life have been and will be as she suggests. I am required to have regard to the proportionality of the sum awarded to the plaintiff's injuries and their consequences, and the sum awarded must be fair and reasonable compensation for those injuries: Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 188. I allow $40,000.
Outcome
I have allowed damages as follows:
Loss of earning capacity
$281,350.00
Loss of superannuation entitlements
$23,100.00
Domestic and personal care
$1,500.00
Medical, physiotherapy and associated expenses
$23,226.25
Medication costs
$7,525.00
TENS unit and miscellaneous items
$3,293.00
Pain management and gymnasium fees
$21,550.00
Equipment and aids
$1,200.00
Travelling expenses
$1,510.00
Medicare reimbursement
$1,000.00
Tax on weekly payments of compensation
$3,764.84
Pain and suffering; loss of amenities
$40,000.00
$409,019.09
Deducting 20 per cent from the total for contributory negligence gives $327,215.27. To be further deducted is the total amount of workers compensation payments of $32,611. 84, which results in a figure of $294,603.43. In order to comply with the principle established by Fox v Wood (above), 20 per cent of the tax paid of $3,764.84 which is $752.97, should be added. That gives a figure of $295,356.40. Assessment is a matter of overall judgment aided by calculations. There will be judgment for the plaintiff against the defendants for $295,350.00.
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TRESIZE t/as TRESIZE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
APPENDIX "A"
The plaintiff's credibility
Workers compensation claim
The plaintiff made a claim for workers compensation in respect of her injuries, the subject of this action. The obvious premise of the claim was that she suffered an injury arising out of or in the course of her employment, the absence from the place of employment being work-related. In her evidence, the plaintiff said that she had been doing some "Tingletree errands" before the accident. She had done some banking and that an appointment had been arranged with Mr Tresize to discuss the potential action against a marine surveyor over the sinking of the Semille. She said that she had neglected for some time to touch base with Ms Webster "whose role it had been in the past to try and gather some outstanding fees". It was also her intention to go to the Antarctic Centre after leaving Mr Tresize's office to see if it was appropriate for a kindergarten excursion. She said that there was also a staff member on prolonged maternity leave and it was her intention to "touch base" with her to ascertain when she might return to work. She said that Mr Partridge had arranged the appointment with Mr Tresize but as she was the co-owner of the vessel, she chose to attend as well. When they arrived at Mr Tresize's office he was not ready at that time to see them. The plaintiff said that whilst they were waiting, "I took the opportunity to have a discussion with Christine Webster about the status of the Tingletree accounts. I don't really recall the content of that discussion it was more of a touch base really".
In examination-in-chief a copy of a hand written diary page for the day in question was tendered. Starting at 11am there is an entry, contained in which is a list of items set out as follows:
— Banking (x 2)
— Antarctic Centre Reccy
— See Chris W
— See Gen
— Lunch
The last two entries are intermingled with a phone number which the plaintiff said was in her mother's handwriting. The end of the whole entry is also intermingled with another phone number in the same handwriting. The entry of course makes no reference to the appointment with Mr Tresize. It was put to the plaintiff in cross-examination that the entry had been made after the event in order to support the claim for workers compensation. This was denied.
The plaintiff was closely cross-examined about the circumstances of the making of the claim and subsequent events involving the insurer. Relevant aspects of that cross-examination are as follows:
· The plaintiff agreed that after payments had been commenced, she had been contacted by someone for the insurer, but she denied that the point of the discussion was that she may not be entitled to compensation because the visit was not work-related. The plaintiff said that she was told that the insurer wanted to investigate the events as they had decided to recoup their "losses" from the persons responsible for her injuries.
· The plaintiff agreed that she then spoke to an investigator in about mid-September 2001, and in early October 2001 signed a statement which she read through briefly and signed as being true and correct.
· The plaintiff agreed that she made a second statement but said that she did not understand the making of that statement to have related to an issue of whether or not the visit to Mr Tresize's office was work-related. She said that she thought she was required to "focus on the paper exchange" between her husband and Mr Tresize, and the fact of the actual appointment as proof that she was there.
· However, immediately after saying that, when asked whether by the time she prepared the second statement she was aware there were problems with respect to her claim, she said that she remembered demanding to be taken to the insurer's office and to go straight to the manager to "find out what on earth was happening". She said that she was told it was "a procedural issue" and that she should get in touch with the investigator and "add further information" to the statement.
· When asked what the problem was as she understood it, she said that she had in fact been told beforehand that the problem related to her failure to mention that the visit was work-related. She said "I … omitted my chat with Christine Webster … which was work-related in the first statement – that statement omitted that part of my day and Julie rang me and told me that it would have to be rectified or it may not be work-related had I not had that chat with Christine Webster".
· The plaintiff said that she was "as mad as a meat axe" when she went to speak to the manager. She was trying to resolve what Julie had meant when she said that there was a doubt about the claim, but did not know at that stage that her payments might be terminated.
· The plaintiff said that she did not find out that her payments might be stopped. She said the manager explained to her that if the journey was not work-related then workers compensation insurance would not cover it. She said she believed the focus in the statement was to help the insurer have physical proof that she was at the top of the staircase. She agreed that the manager explained to her the consequences if her claim was not accepted. She said "I believe he said at one stage … oh it's a fairly simple matter Moira, you just have to give the money back". This notwithstanding, the plaintiff denied that she knew that payments would be stopped or that payments would have to be returned, but immediately after agreed that if it was not a work-related accident she was aware that the consequences were that she would have to repay the money to the insurer. She also agreed that she assumed, rather than knew, that the payments would be stopped.
· The plaintiff agreed that she had said (in the context of making statements to the insurer) that she was at Mr Tresize's office solely for business, but denied that this statement was wrong. She immediately went on to agree that she was not there solely for business but at the same time again would not accept that when she had said that she was there solely for business, it was wrong. She said she was there for a dual purpose, repeating though, that to say she was there solely for business, was not wrong.
· At this point, I asked the plaintiff to explain how such a statement could not be wrong. After intimating that the manager had given her some instructions, she said that she "thought it was the same statement … I thought I was adding to the same statement". (As it became clear the assertion about being at Mr Tresize's solely for business was contained in the second statement.) All of this led shortly after to her again being asked whether she had told anybody that she was there solely for business, to which she said "No"; whether in writing or otherwise, she had not ever said it.
· Part of a statement dated 7 October 2002 was put to her. The plaintiff said that the words were not hers but agreed that she had signed the statement and adopted it as being "true and correct to the best of my knowledge and belief", which she confirmed "it was at the time". A lengthy passage was read out concerning her activities at Mr Tresize's office in which there was no mention of Tingletree business or any conversation or discussion with Ms Webster.
· Part of a statement dated 13 November 2002 was also put to her. When asked whether that was a statement she had made, the plaintiff said "No, but I've signed it". It was suggested that she had adopted it as being her statement, to which she replied "I adopted it as being an additional set of information for the first statement as instructed" by the insurance company manager. When the cross-examiner persisted, the plaintiff said she did not take a lot of notice of the words. As will become apparent from the next point, that comment is significant. This statement contained the words "On this particular day it was the case that my visit to Michael Tresize's office was solely for the purpose of discussing Tingletree business with Chris Webster and the fact that my husband and I spoke to Michael Tresize during the course of his visit for the purposes of delivering a marine survey was both secondary and incidental to my visit …".
· The evidence shows that this statement of the plaintiff also makes obvious reference to the first statement and says that she focussed on the aspect of the visit which involved Mr Partridge providing Mr Tresize with the marine survey "as this involved proof of being there (ie paper exchange) rather than focussing on or even mentioning the principal purpose for my attendance".
· As to that second statement, the plaintiff agreed that she had changed a draft given to her by including the word "whole" in a passage which reads "at this point I which to clearly state that my whole journey from the Tingletree premises in New Town, including my visit, was for work-related purposes".
Comment
Weekly payments of workers compensation ended on 20 December 2002, but payments for medical expenses continued until March 2005. In cross-examination the plaintiff agreed that ultimately an application was made to terminate payments, to which she consented. The plaintiff's evidence about this issue is notable for the contradictions as to whether or not what she had said about being at Mr Tresize's office solely for business reasons was wrong or not. It is also notable for the fact that the plaintiff was really unable to explain her statement in evidence that such an assertion was not wrong. This assertion is contained in the second signed statement, the full impact of which the plaintiff tried to deflect by saying that she did not take much notice of what was in it, and by insinuating that she was following instructions. She had to concede however that she had, of her own volition, amended a draft to make the point even clearer. The proposition that she thought she was simply adding to the first statement is really no explanation at all; that first statement remains an assertion which has its obvious meaning on its face.
I acknowledge that I heard no evidence from either of the two insurance company persons mentioned, but I found the plaintiff's attempts at attributing the making of the relevant part of the second statement to a desire on the part of the insurer to properly document it for recovery purposes, quite unconvincing. Very reluctantly, after some prevarication, the plaintiff ultimately conceded that when she went to see the manager she had been told of the possibility of payments being stopped, and that she may have to make reimbursement. Further, her attempts to distance herself from both written statements do no good to her cause. Whatever the understanding or motivation, the plaintiff signed the second statement which, on her own evidence was simply untrue. Even leaving aside the manner of giving her evidence, this of itself shows a willingness to distort the truth.
The Tingletree newsletter of November 2002
Apparently it was the plaintiff's practice to send out a newsletter to the parents of children enrolled. I infer that this was done on a monthly basis. The November newsletter bears the plaintiff's signature with "Director/Principal" and her qualifications set out under her printed name. The second paragraph contains the following:
"As some of you may be aware 2002 has been a personally challenging year for me with various trips to hospital and an accident resulting in broken bones and other injuries. Under the guidance of Cathy and Jo the team have run the centre beautifully (but, needed or not, I am very very happy to be back!!)"
The plaintiff was first cross-examined by counsel for the first defendant, the point being the extent to which the plaintiff was required to be present at the centre in order to ensure its proper conduct and smooth running. When asked whether it was true that the team had run the centre beautifully, the plaintiff said that she meant "as beautifully as they could", adding that that was not something that the parents needed to know. She did not raise any question about the authorship of the document.
Counsel for the third defendants also took the plaintiff to this document. The following exchange occurred:
"Now I take it the only accident you were referring to in that newsletter was the one of 17 June 2002 when you fell down Mr Trezise's steps?……Yes.
And that was a lie wasn't it that you'd suffered broken bones?……It's – it's incorrect, yes.
No, Mrs Partridge, you knew full well when you authored that newsletter that you hadn't suffered any broken bones?……I signed the newsletters but we all – the senior staff all contributed to the content.
Yet your signature is on it……It is.
It was not true was it?……No, I had no major broken bones.
Ah, no major broken bones, you had no broken bones at all did you?……No.
And you knew that and when you signed this newsletter you'd read it hadn't you?……I expect I had.
Yes, and so you allowed the statement that you'd had an accident resulting in broken bones to remain in there as though it were a true statement?……I possibly overlooked it.
HIS HONOUR: Well are you saying you didn't write that part?
WITNESS: I don't remember but all the senior staff had input into what was written in the newsletter.
HIS HONOUR: But they wouldn't write about your personal experiences would they?
WITNESS: Um, I doubt it. I mean the paragraph begins, 'As Director I can assure you', so I suspect that it was written by me but I don't remember doing it."
As can be seen, the plaintiff did not claim that the statement about broken bones was intended to be wry humour or dramatic irony, but in my view at least, she attempted to dissociate herself from the making of it.
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