Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon

[2021] NSWSC 1492

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon [2021] NSWSC 1492

Hearing dates:

27-29 October 2020

Date of orders:

19 November 2021

Decision date:

19 November 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court directs that the defendants bring in short minutes or order reflecting this judgment within 14 days of the publication of the judgment

Catchwords:

TORTS – negligence – personal injury – liability – duty of care – breach of duty – causation – credit – surveillance footage – Markus ruling – damages – non-economic loss – economic loss – out of pocket expenses – future treatment - quantum of damages

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

ASIC v Rich (2009) 236 FLR 1

Australian Postal Commission v Hayes (1989) 23 FCR 320

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

AWA v Independent News Auckland [1996] 2 NZLR 184

Boral Bricks Pty Limited v Cosmidis [2013] NSWCA 443

Brighten v Traino [2019] NSWCA 168

Bunnings Group Ltd v Giudice [2018] NSWCA 144

Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Ltd (2007) 239 ALR 662

Cameron v Baker (Court of Appeal (NSW), August 1980, unrep)

Carey v Gruzman (Court of Appeal (NSW), 10 April 1991, unrep)

Coles Supermarkets v Haleluka [2012] NSWCA 343

Dawson v Hall (Court of Appeal (NSW), 29 July 1994, unrep)

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265

Jones v Bartlett (2000) 205 CLR 166

Koninklijke Phillips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; [2000] FCA 876

Kubovic v HMS Management Pty Ltd [2015] NSWCA 315

Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1

Matthews v Dean (1990) Aust Torts Reports 81–037; 11 MVR 455

McKenna v Hunter & New England Local Health District [2013] NSWCA 476

Naylor v Preston Area Health Authority [1987] 1 WLR 958

Neindorf v Junkovic [2005] HCA 7

Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114

Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156

Prasad v AMP Life Ltd [2012] NSWSC 1076

Purkess v Crittenden (1965) 114 CLR 164

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

State of NSW v Tyszyk [2008] NSWCA 107

Strinch v Singh [2009] NSWCA 15

Strong v Woolworths Limited (2012) 246 CLR 182

Thompson v Woolworths (Q’land) Pty Limited (2005) 221 CLR 234

Watts v Rake (1960) 108 CLR 158

Waverley Council v Ferreira [2005] NSWCA 418

Waverley Council v Lodge [2001] NSWCA 439

Weber v Greater Hume Shire Council [2018] NSWSC 667

Weber v Greater Hume Shire Council [2019] NSWCA 74

Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Category:

Principal judgment

Parties:

2017/269748
Jacqueline Christina Pike (Plaintiff)
Coles Supermarkets Australia Pty Ltd (Defendant)

2018/129793
Jacqueline Christina Pike (Plaintiff)
Isaac Solomon (First Defendant)
Elizabeth Oxman (Second Defendant)
Sara Cooper (Third Defendant)

Representation:

Counsel:
J Turnbull SC with L Goodchild (Plaintiff)
D A Priestley SC (Defendants)

Solicitors:
Brydens Lawyers (Plaintiff)
McCulloch & Buggy Lawyers (Defendants)

File Number(s):

2017/269748; 2018/129793

JUDGMENT

INTRODUCTION

1. HIS HONOUR: By a statement of claim filed 5 September 2017, Jacqueline Pike (“the plaintiff”) commenced negligence proceedings against Coles Supermarkets Australia Pty Ltd (“Coles”) (“the Coles proceedings”). The Coles proceedings arise from a fall by the plaintiff (“the incident”) that occurred in a car park on 20 January 2015 outside a supermarket operated by Coles (“the supermarket”).

2. The supermarket and car park were located within the Cambridge Gardens Shopping Centre at Boomerang Place, Cambridge Park in the State of New South Wales (“the shopping centre”). After undertaking shopping for groceries at supermarket, the plaintiff returned to her car situated in the car park adjacent to the shopping centre. Whilst transferring her groceries into her ue the plaintiff stepped back from her vehicle to an uncapped drainage pipe, thereafter falling backwards landing on her “bottom”.

3. The registered owners of the shopping centre were Isaac Solomon, Elizabeth Oxman and Sara Cooper (collectively, “the owners”). By a statement of claim filed 24 April 2018, the plaintiff commenced further negligence proceedings against the owners (“the Solomon proceedings”). The Coles and Solomon proceedings were heard together.

4. Both Coles and the owners filed cross-claims against each other in their respective proceedings (“the cross-claims”). A central issue in the cross-claims was control of the relevant area, in particular, having regard to the terms of the lease under which Coles occupied, at least, the supermarket premises and had some responsibilities with respect to the car park. I will return to the terms of the lease below.

5. Prior to the hearing, both Coles and the owners resolved the claims brought between them, respectively. As such the cross-claims do not need to be determined. As at the time of the hearing, both Coles and the owners were jointly represented. Hereinafter, Coles and the owners shall be, collectively, referred to as “the defendants”.

6. Prior to turning to the incident in greater detail, it is appropriate to provide dramatis personae, undertake a review of the aspects of evidence (including reasons as to rulings on the evidence and, in particular, a Markus ruling: Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1) and deal with issues of credit.

Relevant Persons and Documentation

The Plaintiff

7. The plaintiff is 49 years of age. She was born in New Z4ealand and has lived in Australia since she was 13 years of age.

8. Since 1993, the plaintiff has worked various jobs in administration, customer service and maintenance/construction. She stopped working in 2010-2015 due to an autoimmune disease, “Buerger’s disease”. The plaintiff was also afflicted by a “prolapsed disc” in her lower back, which she deposed “prevented me from working”. She received financial support via a Disability Support Pension.

9. In her evidentiary statement dated 10 May 2019, the plaintiff provided the following description of her pre-existing conditions:

22. Buerger’s disease manifest such that my hands and feet freeze up so that I have reduced circulation and therefore reduced feeling in my hands and feet. This impacted on both hands and sometimes my feet. I received treatment for this disease.

23. At the end of 2010, I was hospitalised for a couple of weeks and received what treatment they had available. But unfortunately, there is not any treatment for this disease.

24. I always have tingling in my hands and the conditions flares up when it’s cold or when I am stressed, and my fingers go numb. The condition has reduced from the intensity when I was initially diagnosed.

25. With respect to the prolapsed disc in my lower back, I had an operation in November 2013 at Nepean Hospital. The operation was a discectomy and it was successful.

26. Up until the accident in January 2015 I had no problems with my back at all and was able to work.

10. She stated that those pre-existing conditions left her “debilitated to a certain extent”. However, she was still able to perform chores around her house including cooking, cleaning, washing, gardening and shopping. The plaintiff deposed “I had no physical limitations whatsoever in terms of my ability to do this type of work around the home”.

11. Towards the end of 2014 and the beginning of 2015, the plaintiff stated that “I was feeling well enough such that I felt I could start work again”. She made a decision to return to mowing lawns and trimming edges. Whilst the work is labour intensive, it is work she had previously performed and she believed she could “juggle the work around my ability to perform the work” in instances where her disease “flared up”.

12. Immediately prior to the incident, the plaintiff had set up her own business: “Lawns N Edges”. She prepared signs that stated “Lawns N Edges” and mobile phone number. Those signs were hung on power poles in the Penrith area. By the time of the incident, the plaintiff deposed she “had a handful of phone calls and had undertaken two or three jobs”. The average lawn would cost between $50-80.

13. The plaintiff was required for cross-examination.

Raine & Horne Commercial Retail Services

14. On 30 November 2011, the owners entered into an Exclusive Commercial, Industrial and Retail Management Agency Agreement (“the agency agreement”) with Raine & Horne Commercial Retail Services (“RHC”). By that agreement, the owners authorised RHC the exclusive right to manage and lease the shopping centre. (Prior to 2011, Kinleys Retail Property Pty Ltd (“Kinleys”) managed the centre. Kinleys subsequently merged with RHC).

15. By cl 6.1(a) of the agency agreement, RHC agreed to manage the shopping centre as described in the particulars to the agreement. The relevant particulars are extracted below:

11. AGENT’S AUTHORISED DUTIES

In respect of each Lease of the Property the Agent is authorised to undertake the following actions on behalf of the Principal:

Initial inspection;

…

Undertake property inspections at the Agent’s discretion.

…

15. REPAIRS AND MAINTENANCE

The Agent is authorised to engage appropriately qualified or licensed tradespersons to effect repairs and maintenance of the Property in accordance with the Principal’s obligations to repair (if any) or otherwise instructed, provided that expenditure in excess of $1,000 for any one item shall not be incurred without the prior approval of the Principal except where, in the opinion of the Agent, emergency repairs are necessary for the proception of the Property or the supply of essential services to Lessees.

16. By cl 8 of the agency agreement, the following special instruction was included with respect to management of the property:

8. SPECIAL INSTRUCTIONS

The Agent will as soon as practicable after entering into this Management Agreement in respect of management of the property, prepare and give to the Principal an inspection report for the property. Thereafter the Agent will inspect the property no less than once annually. The Agent will also inspect the property on each occasion it is vacated by a tenant and this inspection may constitute the annual inspection.

The Lease

17. On 28 November 2002, Coles commenced occupation at the shopping centre pursuant to a lease with the owners (“the lease”). The lease was for a 20 year term, with an option to renew for three further terms of 10 years each.

Image 1: The Land

The land occupied by Coles was the Certificate of Title Folio Identifier 101/1037595 (“the land”). The land was also identified on the first page of the lease as the “Supermarket Premises” appearing in “the Premises Plan forming part of Schedule F of this lease” (“the premises plan”).

18. The diagram reveals that the supermarket is situated north-northeast of Boomerang Place and the car park (or “Car Parks”) are located on the western and southern boarders of the supermarket. (The car park was also referred to as the “lower” and “upper” car park in various documents).

19. Page 2 of Schedule F identifies the bordering properties, which include a McDonalds Restaurant situated on the western border, northwest of the supermarket, and a petrol station situated on the western border, southwest of the supermarket.

20. Page 3 of Schedule F reveals details of the interior of the supermarket, namely, the ground floor and the first floor.

Definitions

21. Part Q of the lease concerns definitions and interpretation. It is assistive to briefly turn to some of the defined terms.

22. A reference to “the Centre” in the lease was defined as follows:

The Land [being Folio Identifier 101/1037595] together with any other contiguous or nearby land which the Lessor develops in conjunction with the Land and on which the Lessor conducts manages and operates a shopping centre. It includes:

(a) all structures buildings and other improvements now or in the future erected;

(b) the Car Parks; and

(c) all plant machinery fittings and equipment, owned or controlled by the Lessor.

on the Land or other contiguous or nearby land.

The Centre at the Commencement Date is shown on the plan in schedule C.

23. A reference to “Car Parks” was defined as “[t]he customer car parks in the Centre”.

Repairs

24. Part G of the lease sets out the obligations of both Coles and the owner with respect to repairs.

25. Clause 29.7(a) expressly sets out the obligations of Coles with respect to the car park and repairs. It provides that during the term of the lease, Coles must (and at its cost):

(i) repair and maintain the Car Parks including car park line marking;

(ii) maintain the landscaping and gardening in the Common Areas; and

(iii) clean the Car Parks.

26. Clause 29.7(c) provided:

(c) The Lessee’s obligations in clauses 29.7(a)(i) and (ii) do not apply to:

(i) fair wear and tear; and

(ii) maintenance and/or repairs in the nature of structural or capital maintenance and/or repairs.

27. Whilst there is no express clause with respect to any obligation upon the owners as to the repair and maintenance of the car park. Clauses 30-32 concern the obligations of the owners. Relevantly, cl 32 provides:

32.1 The Lessor must keep the Centre [including the Car Parks] in:

(a) good repair;

(b) a visually appealing condition; and

(c) working order (where applicable).

Karen Skinner

28. Ms Karen Skinner was the former Manager in Retail Property Management at RHC. She produced an evidentiary statement in these proceeding dated 2 September 2019, which contained the following, inter alia, annexures:

1. the agency agreement;

2. the lease;

3. correspondence with Coles between 15 August 2012 and 6 September 2012;

4. inspection reports prepared by Ms Skinner between 10 March 2014 to 16 September 2014;

5. correspondence about the incident with Coles on 21 January 2015; and

6. Incident Report prepared by Ms Skinner dated 21 January 2015.

29. At the time of the incident, Ms Skinner was employed by RHC as the Assistant Shopping Centre Manager at RHC. In that role, she had responsibility of several shopping centres, including the shopping centre at Cambridge Gardens (earlier defined). Ms Skinner deposed that she “would attend the Centre at least every month to undertake inspections”. She also noted “I would prepare reports, manage major repair works and prepare the budget”.

30. As Ms Skinner was not available for cross-examination due to sickness, the following exchange was had between counsel (T91):

PRIESTLEY: Not from the defendants either, your Honour, although I should say, I wanted to read an affidavit from Ms Skinner and she’s very unwell. I didn’t understand my learned friend to be intending to try and cross-examine her but I should just clarify that now.

TURNBULL: Your Honour, I understand she is ill, her statement is there, it has no s 67 notice has been given to us but, on the other hand, she does say she’s very ill, we accept that and clearly she’s not going to be capable of being cross-examined, so in those circumstances, assuming I’m not going to be held to any Browne v Dunn points, I have no difficulty with my learned friend reading the affidavit with the deponent not being called.

PRIESTLEY: Yes, your Honour, I wouldn’t be taking any Browne v Dunn points in relation to Ms Skinner’s evidence if she’s not cross-examined.

HIS HONOUR: Could you identify where in the court book that statement may be found?

PRIESTLEY: Yes, your Honour, it’s p 114 of the court book, court book 1, 114 and it’s got some lengthy annexures, your Honour, which run through to court book p 227, I believe, 227.

HIS HONOUR: Her affidavit forms part of the court book which is now an exhibit in the proceedings but I note the exchange between counsel, to the extent required, her affidavit is treated as read on that basis. I would propose to take this course, subject to hearing further from counsel, to enable sufficient time for Mr Turnbull to consider the written submissions prepared by you, Mr Priestley and the transcript in that respect. By that, I don’t mean limiting him to the transcript references that you’ve identified but those that he may have to have recourse to for the purposes of argument and then to deal with the balance of the hearing on the voir dire, make a ruling on that and then deal with any procedural questions that may or may not arise in relation to any ruling as may be required in the circumstances.

31. I will return to the relevant records and correspondence with respect to repairs and maintenance at a separate juncture.

MATERIAL BEFORE THE COURT

32. The Court had before it substantial material filed with respect to the proceedings, which consisted of evidentiary statements, medical evidence, clinical reports and various documentations relied upon by the respective parties to the proceedings. The material was tendered as one exhibit before the Court.

33. The following evidentiary statements were filed:

1. evidentiary statement of the plaintiff dated 10 May 2019;

2. evidentiary statement of Ms Skinner dated 6 Mary 2020; and

3. evidentiary statement of Mr Christopher McDowall, the plaintiff’s son, dated 28 July 2020.

34. The plaintiff and Mr McDowell were cross-examined.

35. An exhibit in the proceedings was a Joint Conclave Report dated 22 September 2020, prepared by Dr Matthew Giblin, an orthopaedic surgeon qualified on behalf of the plaintiff, and Dr John Stephen, an orthopaedic surgeon qualified on behalf of Coles.

36. In addition to the Joint Conclave Report, the medical evidence relied upon by the plaintiff included, inter alia, the following:

1. medico-legal reports of Dr Giblin, dated 11 December 2017 and 18 May 2020;

2. medico-legal report of Professor John Yeo, Spinal and Rehabilitation Specialist, dated 28 September 2018;

3. reports of Dr Andrew Davidson, Neurosurgeon, dated 22 February 2013, 3* December 2013 and 29 January 2018;

4. reports of Dr Matthew Tait, Neurosurgeon, dated 16 October 2015, 29 August 2016, 26 September 2016, 13 February 2017 and 10 April 2017;

5. various MRI scans produced between 2007 and 2016; and

6. various CT scans produced between 2005 and 2017.

37. The following clinical records of the plaintiff, produced by various practitioners, were also relied upon by the plaintiff:

1. Dr Tim Ho, Rehabilitation and Pain Specialist, dated 4 October 2016 to 17 October 2017;

2. Dr Tait, dated 18 October 2015 to 26 June 2017 and 29 August 2016 to 14 August 2020;

3. Dr Davidson, dated 23 February 2013 to 3 December 2013;

4. Dr Ong, General Practitioner, dated 10 March 2003 to 25 August 2020;

5. Minchinbury Community Hospital, dated 6 July 2016 to 31 October 2016; and

6. Macquarie University Hospital, dated 25 January 2018 to 22 January 2020.

38. In addition to the abovementioned material, the plaintiff also relied upon the following documents:

1. the plaintiff’s business card: “Jacqui of All Trades”;

2. schedule of Australian Unity Home Care Rates;

3. Coles List of Payments; and

4. “Lawns n Edges” sign (marked Ex 2).

39. Coles relied upon the following documents:

1. the medico-legal report of Dr Stephen, dated 23 January 2018; and

2. the occupational therapy report of Sanja Zeman, dated 4 May 2018.

40. The owners relied upon the following documents:

1. the lease;

2. email correspondence between Mr Mattingly and Ms Skinner dated 21 January 2015;

3. email correspondence between Ms Skinner and Ms Nohra and Mr Phillips dated 21 January 2015;

4. email correspondence between Mr Mattingly and Ms Skinner, together with the Incident Report, dated 24 January 2015; and

5. Incident Report dated 21 January 2015.

41. In support of the plaintiff’s case for economic loss, the plaintiff relied upon the following:

1. income tax returns for 2011, 2015-2020;

1. notice of assessments for 2015-2020; and

2. payment summaries for 2011-2018.

42. As to the material before the Court, the following may be noted:

1. Senior counsel for the defendants objected to two aspects of paras 55 and 56 of the plaintiff’s evidentiary statement. That objection went away with the relevant statements being received as a statement of belief by the plaintiff (see T13). No other objections to the statement of the plaintiff.

2. The report of Dr Fearnside was removed from the court book, in light of the ruling of the Court as to the receipt of that evidence (as discussed below). It was noted it will still appear in the index to the court book (see T124.27).

3. Turning to Mr McDowell’s evidentiary statement, during his evidence-in-chief, he fixed an error in his statement:

Q. Can you identify the paragraph, sir, to which you’re referring?

A. 35, “In August 2018” should be changed to 2017. I might have started doing some lawnmowing work again, I had to manage the business in addition to working full time.

4. During the hearing, the defendants tendered an electronic device containing surveillance footage. Following a ruling allowing the tender, the material was before the Court.

43. I now turn to the Court’s reasons for the rulings with respect to the report of Dr Fearnside and the surveillance footage.

44. On 29 October 2020, the Court indicated that it would provide its reasons for decision with respect to the defendant’s Markus application and the ruling concerning Dr Fearnside’s report in the final judgment.

45. The next section of this judgment provide those reasons.

Defendants’ Markus Application

46. On 27 October 2020, the defendants sought to tender series of audio-visual recordings of the plaintiff taken between 26 July 2017 and 19 December 2019. The audio-visual recordings consisted of 12 hours of surveillance footage (“the surveillance footage”).

47. The chronology of the surveillance footage was as follows:

1. 26-27 July 2017;

2. 8-10 November 2017;

3. 3-4 April 2018;

4. 4-5 and 7-9 June 2018;

5. 30 November 2018; and

6. 3, 16-17 and 19 December 2018.

Material on the Application

48. Both parties filed material over evening as to the application. Additional material was provided on 28 October 2020.

49. For the purposes of the application, the defendants tendered:

1. the audio-vidual recordings in electronic form; and

2. six written reports summarising the contents of the audio-visual recordings prepared by the entity whose operatives recorded this material.

50. The defendants also referred and relied upon the following material, before the Court on the substantive application:

1. the plaintiff’s evidentiary statement at paras 57-63, in which she describes her incapacities;

2. The plaintiff’s Further Amended Statement of Particulars, in which she claims $200,211 in past economic loss, and $606,813 in future economic loss;

3. the plaintiff’s Schedule of Damages, in which she provides particulars of economic loss; and

4. the plaintiffs tax returns.

51. The plaintiff provided a schedule of transcript references in relation to the oral of evidence of the plaintiff on 27 October 2021 as to what she can and cannot do at work. Annexed to that document was a page of “Further Submissions”, which will be returned to below.

Relevant Legislation

52. Part 3.11 of the Evidence Act 1995 (NSW) concerns discretionary and mandatory exclusions. Section 135 and 136 provide:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing

53. The definition of “probative value” in the dictionary to the Evidence Act provides:

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

54. Rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), relevantly provides:

31.10 Plans, photographs, audio-visual recordings and models

(1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.

(2) A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except—

(a) in the case of a prescribed item—where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or

(b) in any other case—by leave of the court.

(3) This rule does not apply to any proceedings entered, or intended to be entered, in—

(a) the Commercial List or the Technology and Construction List in the Supreme Court, or

(b) the Commercial List or the Construction List in the District Court.

(4) In this rule—

audio-visual recording includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means.

prescribed item means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing.

Relevant Principles

55. In Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Ltd (2007) 239 ALR 662, the Full Court of the Federal Court observed that the balancing exercise in s 135 requires an assessment of the time that would be unduly wasted by the admission of the evidence.

56. In Koninklijke Phillips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; [2000] FCA 876, Burchett J observed (at [21]):

[21] … It is plain that the statute is speaking in extremely broad terms, of uncertain import, which must be construed as leaving a great deal to the judgment of the trial judge, but that judgment must be exercised on a ground of principle. In my opinion, the common law principle expounded in the text to which I have referred is the foundation of s 135(c). In D F Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597 at 607, Gummow J accepted that there was a “discretion described in the authorities” which enabled him to refuse to enter upon a burdensome enquiry from which “there might be no substantial countervailing benefit in assisting the resolution of the primary issues”. Lehane J, in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 176-177, treated D F Lyons Pty Limited v Commonwealth Bank of Australia as throwing light on the proper use of s 135. In my opinion, it is unnecessary to decide whether the evidence of the Mexican and Argentinian applications had some relevance within s 55; his Honour was fully justified in rejecting the evidence as so remote that it fell within s 135, a conclusion which would have been expressed in common law terms by saying that the evidence lacked sufficient relevance.

Defendants’ Submissions

57. The defendants advanced the following submissions in support of the application:

1. First, as to the purpose of the tender of the surveillance footage, the following was identified:

1. prove that the plaintiff has been working more hours and on more jobs than she has admitted in her testimony and in statements to medical practitioners;

2. demonstrate that she has significantly greater physical capacity, and less restriction, than she has said;

3. thereby challenge and test her credibility in relation to these matters, and matters of quantum more generally; and

4. affect the assessment of various heads of loss claimed, in particular economic loss and domestic assistance.

2. As to r 31.10 of the UCPR, it was submitted:

1. The material has not been served upon or otherwise notified to the plaintiff’s solicitors prior to the tender, in accordance with r 31.10(1), which requires that a party who intends to tender an audio-visual recording at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.

2. Rule 31.10(2) provides that a party who fails to comply with this requirement may not tender the surveillance footage unless the Court is satisfied there was a legitimate forensic purpose for not doing so (r 31.10.(2)(a)) or by leave of the Court (r 31.10(2)(b)).

3. The defendants submit that the surveillance footage should be admitted as there is a clear legitimate forensic purpose in not having served this prior to trial.

4. As a body of material the surveillance footage is plainly a prescribed item for the purposes of r 31.10(2)(a), as the reports reveal, this was obtained in connection with the proceedings at the request of Coles for the purpose of testing the credibility of the plaintiff: r 31.10(4).

3. It was contended that the surveillance, together with reports tendered with the audio-visual recordings, reveal the plaintiff doing the following (at para 9):

1. bending her back to 90 degrees whilst barely bending her legs, on numerous occasions throughout one day [4/4/18 at 7.40 and following, 16/12/19 at 9.10 and following];

2. jumping down from the tray of her utility to the ground below [8/11/17 at 9.49 and 12.45];

3. lifting the lawnmower off and on the utility tray without a ramp [8/11/17 at 9.58, 10.07, 14.15 and 14.29; 9/11/17 at 10.44];

4. lifting and emptying apparently full grass catchers [27/7/17 at 11.33, 3/4/18 at 10.07, 30/11/18 at 11.59];

5. pushing the lawnmower uphill [10/11/17 at 10.21, 4/4/18 at 8.50; 5/6/18 at 8.49];

6. using a hedge trimmer to trim hedges [8/11/17 at 8.56];

7. using a step ladder to trim hedges [8/11/17 at 8.57];

8. working as early in time as 26 July 2017 (“1st report”);

9. Doing numerous jobs on weekdays [every day of the 16 days recorded was a week day];

10. doing numerous jobs without her son present [her son is not seen to be present on any occasion];

11. doing many more than 3 or even 6 jobs in a given week (“2nd report”); (“3rd report”); (“5th report”); the other reports also suggest as much];

12. ultimately, performing all the tasks she undertakes in this work in an apparently fluid, efficient and unrestricted manner.

4. Each of these observations, it was contended, were either denied by the plaintiff in her evidence, or not admitted by her in her evidence, or were otherwise inconsistent with other aspects of her evidence, all matters raised in cross-examination.

5. This is precisely the sort of material that may tempt or enable a witness to tailor or attempt to tailor their evidence if considered prior to cross examination.

6. There is nothing in the material that would assist the plaintiff to advance her own case. It does however provide a necessary means of testing doubtful veracity. That submissions was supported with reference to the following authorities: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; Prasad v AMP Life Ltd [2012] NSWSC 1076, (the “Markus principle”: Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1).

7. The plaintiff has maintained that she has been, and is, only capable of doing a very limited number of lawn mowing/garden maintenance jobs, varying from 3 per week to 5 per week, in a piecemeal fashion, and only with assistance of her son. To test the honesty of such evidence it was necessary to first have the plaintiff commit to her position. This is a well-recognised legitimate and not unfairly prejudicial process. Reference was made, in that respect, to the following authorities: Naylor v Preston Area Health Authority [1987] 1 WLR 958; Australian Postal Commission v Hayes (1989) 23 FCR 320 at 327; ASIC v Rich (2009) 236 FLR 1.

58. As to the failure to make a pre-trial ex parte application pursuant to r 31.10(1) and (2), the defendants contended that omission “can provide no substantive basis for rejecting the evidence now” for the following reasons:

1. neither r 31.10 itself, nor any other rule, requires or even refers to such pre-trial procedure with respect to prescribed items under r 31.10;

2. presumably if it was a procedure to be encouraged, such reference might have been expected from the rule makers;

3. there is no evidence before the court, or other basis, to proceed on the footing that such pre-trial procedure is expected, or that failure to adopt it is irregular or even unusual;

4. whether the procedure was adopted or not cannot prejudice the plaintiff, as she would not have had any opportunity to address the material, in the context of r 31.10, until tender at trial in any event;

5. there is no basis to find that there has been any resultant delay from not adopting the procedure – almost certainly the audio-visual recordings would need to have been considered afresh in the proceedings by the trial judge, and the plaintiff’s representatives, before tender, (who could have objected afresh), and once they are considered on the tender application may do not need to be “shown” or watched again; and

6. from the perspective of the principles in ss 56 and 57 of the Civil Procedure Act 2005 (NSW), it would appear more likely that requiring a duty judge to consider all the material ex parte may have constituted a waste of the time of the court and the defendants, and added unnecessarily to costs.

59. The defendants also submitted:

1. This is not a matter where it will apparently be necessary to provide the material to any of the doctors, but if that is considered essential it can easily be done.

2. The evidence should be admitted in accordance with r 31.10(2)(a). If it is otherwise necessary to obtain leave under r 31.10(2)(b), that leave should be granted.

60. During the hearing of the application, counsel for the defendants advanced submissions in reply to the plaintiff, as well as producing a table of transcript references for matters that they say are relevant to determining whether or not the evidence supports a finding of a legitimate forensic purpose, namely, for the assessment of credit. That table is extracted below:

TRANSCRIPT	ISSUE
17.40	Date of signage
17.40	Number of jobs
20.25	Date of signage
20.28	Assistance from Christopher
21.1	Lifting the lawnmower
21.13	Doing hedges
22.50	Assistance from Christopher
38.13	Date of signage
42.22	Date recommenced work
46.33	Working on weekdays vs weekends
47.45	Mowing on slopes
48.40	Emptying lawnmower catcher
49.25	Using a hedge trimmer
50.5	Jumping down from vehicle
50.16 ff	Lifting lawnmower of and on vehicle
50.40	Bending back 90 degrees
51.25	Date of signage
52.26	Number of jobs per week
60.14	Assistance from Christopher
61.3	Ability to do gardening
62.10	Lifting at work

61. The following submissions were advanced as to the matters identified in the above table:

1. First, each of the above matter listed were put to the plaintiff in the context of cross-examination and, particularly in light of the surveillance footage, are relevant to the plaintiff’s capacity and her credit on those issues.

2. Secondly, a general submission was advanced that what the plaintiff has said in her evidence does not always depict an accurate representation of the reality of the situation. As previously set out, the surveillance footage is at odds with aspects of the plaintiff’s evidentiary statement, examination-in-chief and, in particular, cross-examination.

3. Thirdly, whilst noting there is merit in assessing each individual instance of contradiction, senior counsel for the defendants contended:

[T]he significance in this case is probably more in the accumulation of so many many things that can be seen on the surveillance over so many days and comparing that with the plaintiff’s story and when one considers what’s put in the particulars, particularly in relation to her economic loss and the claim for damages, in my submission, your Honour, her surveillance footage, from what your Honour can discern from that your Honour has seen and from what’s written in the reports, the picture that emerges from the surveillance dramatically contradicts her claims and it goes to the plaintiff’s credit very much.

62. As to the further written submissions advanced by the plaintiff, counsel for the defendants submitted “we would dispute or raise issue with each of them”. In that respect, it was contended:

1. In para 2 it is submitted that the case pleaded is that the plaintiff has, at best, a very limited ability to do the lawn mowing work. We agree with that. That is the way the case was pleaded, but it was not what was shown in the film in our submission.

2. In para 3 in the second or third last sentence it stated clearly if the plaintiff could do anything else making more money she would. We would say that that cannot be said to be clear or even arguable when one looks at her physical capacity. The job was performed over so many years in this work. The plaintiff has conceded more than once is hard work.

3. At para 4 it was submitted by the plaintiff that the fact that she may have denied or not recalled one or two matters that occurred more than three years ago. That is not however, accurate having regard to the film.

4. In para 5 it was submitted the surveillance material does not impinge upon her credit. That proposition is contested.

Plaintiff Submissions

63. In opposition to the tender of the surveillance footage, the plaintiff advanced the following submissions:

1. Reliance was placed upon the fact the material was not served in accordance with r 31.10. As such, save for the Court being satisfied that the defendant has a legitimate forensic purpose for not serving the material (see r 31.10(2)(a)), it ought to have been served at least 7 days prior to the commencement of the hearing.

2. The plaintiff observed that the defendant does not apparently seek to rely upon any report from a doctor who has viewed the surveillance material. Thus, there would appear to be no medical opinion on any of the issues in the case, particularly the issue of economic loss. In the absence of medical opinion, it was contended, the Court would not be assisted by the surveillance footage on the issue of economic loss or domestic assistance.

3. The only basis on which the film could, therefore, be admitted is that it has some value in relation to attacking the plaintiff’s credit. To have any real effect in this matter, that is, to say to have any basis to propound that the film has a legitimate forensic purpose, the Court would need to be satisfied that what is shown in the film is so far removed from the evidence given by the plaintiff about matters shown therein that it would have some real effect upon her credit. It was contended that approach is problematic on two bases:

1. First, the plaintiff had agreed with senior counsel for the defendant in relation to just about everything that he asked her. She has not sought to hide, either in her oral evidence or in her histories given to the various doctors, the fact that she pushes a lawn mower for a living. She has not suggested to anybody that she is completely incapacitated in so far as work is concerned. What she does say is that when she does any of the heavier aspects of the job, which she mostly seeks to avoid and utilise the services of her son Christopher or her partner, she suffers for it. In response to one question by Mr Priestley she said that she takes Endone to manage the pain when she is working. She did not deny that she could not do these things shown.

2. Secondly, with the reliance upon the film is that she was cross-examined at a level of considerable generality. That is to say, specific dates and times were not put to her. Of course, even if that was done, she may not recall such dates. But simply putting matters in a general timeframe does not assist this Court at all in determining what the situation with the plaintiff was at any particular time. The only time that was even closely referred to is when she re-started work. The surveillance material commences in July 2017. The plaintiff was asked many questions about this.

4. What cannot be gainsaid is that she has been upfront, as far as her memory is capable, about her ability to work in circumstances where it would be unsurprising if she simply decided not to work anymore. As an example of that, the last set of surveillance covering the period before Christmas last year. It shows the plaintiff undertaking the tasks of which she gave evidence, namely, pushing a lawn mower around, using a small, apparently light weight whipper snipper and putting up signs and so on.

64. Turning to consider the footage in closer details, counsel for the plaintiff advanced the following submissions:

16. Further, what is seen in that surveillance is the plaintiff doing the work she says that she does, with pain, with the assistance, on that occasion, her partner. She gave evidence that her partner assisted her from time to time. Her son does not appear but all of the surveillance was undertaken on weekdays, not weekends when Christopher helps.

17. Other of the surveillance shows her doing lawn mowing, a couple of times a day as she said. Sometimes she does it without assistance, as she said she sometimes does.

18. The plaintiff emphasises that these are all matters that she said she can undertake. Further, the surveillance shows that the work she does, generally comprising 2 or 3 jobs on any given day, confirms that she cannot do the 6 to 8 jobs per day, 5 or 6 days per week, that she would do had she not been injured.

19. One also sees her shopping in the surveillance. Of course, that is consistent with what is contained in her evidentiary statement at [68] (CBP 112). That is to say Christopher does the big weekly shop but she is able to do small shopping herself every couple of days. It shows her doing things she says she can do.

65. As to the purpose of surveillance footage as relied upon by the defendants (and set out above), it was submitted:

1. As to the contention that surveillance footage reveals the plaintiff undertakes more work than she suggested, the plaintiffs evidence was that “she has done MORE work than is shown. The surveillance can’t achieve the proposed purpose”. Reference, in that respect, was also made to the fact the surveillance footage covers 16 days over a period of 880 days.

2. In the absence of medical opinion, the footage cannot establish the plaintiff has “greater physical capacity, and less restriction” that she has stated in her evidence, nor can it assist with the "assessment of various heads of loss”.

3. The plaintiff rejected any contention that the material undermines her credibility. This is because “it does not show her doing anything she says she cannot do. And the Court should recall that she, unsurprisingly, has little recollection of the specific movements that she was questioned about”.

66. In reply to the contentions at para 9, it was submitted:

24. So far as the matters contained in para 9 of the Defendant’s submissions are concerned, contrary to the Defendant’s submissions the only one she specifically denied was (b) and, I think, (c). These were a single incidents nearly 3 years ago. It can hardly provide grounds to suggest she is lying.

25. Some of the matters in [9] of the defendants submissions are easily met. She said she could do, or had no particular recollection of doing, the matters in (a), (d), (e), (f), (g) ,(i), (j), and (k) were all matters she agreed she could do. Of course (j) cannot assist because these were all week days. Finally, (l) does not impinge on the Plaintiff’s credit unless evidence from a doctor says it does.

26. In those circumstances, what is there to be seen in the surveillance that is so inconsistent with her evidence that the Court should entertain an application to show surveillance film of more than 12 hours? The plaintiff’s answer to that question is that there is so little value in what is shown in the film, indeed given her evidence no value, that the Court’s time should not be taken up with showing this surveillance material.

67. The plaintiff also contended the Court would not accept the defendants’ contentions that the plaintiff “tailored” her evidence to make it more like what is shown and that her evidence has “doubtful veracity”. It was submitted both contentions are contrary to the evidence before the Court. In that respect it was noted, save for a couple instances, the surveillance footage shows “exactly what she says she can do” (see schedule of transcript references produced by the plaintiff). Further, the medical evidence “supports the plaintiff’s case unreservedly”.

68. The transcript references relied upon by the plaintiff, together with analysis by the plaintiff, is extracted below:

T38.32

When the plaintiff first saw Dr Tait (October 2015) the plaintiff said that she would have been able to mow 6 to 8 lawns a day.

That is to say the plaintiff told Dr Tait that her capacity to work, uninjured, was 6 to 8 lawns a day.

T39.3

The plaintiff agreed that it was easier to walk forward pushing a mower because she had something to hold onto.

T39.14

As at October 2015 plaintiff found it harder to work upright with a whipper snipper compared to pushing a lawn mower.

T39.37

(During 2016 her business was) dropping off because I was in a lot of pain; in the end I just couldn’t do any lawns.

T41.47

(The plaintiff started mowing lawns and edges again) in around 2017, around the middle to end I’d say.

T43.37

(The plaintiff was clearly unsure as to when she recommenced work but clearly it wasn’t in 2016 as she was going to rehabilitation until January 2017).

T46.19

The plaintiff gave evidence that she does a couple of jobs lawn mowing and edging on weekdays. This evidence does not seem to be constrained by a time period. She also gave evidence at T46.25 that she also works on weekends. At T46.29 she says she does more on Saturdays.

T46.40

On the weekends Christopher goes with her.

T46.50

The plaintiff agreed that she does have to bend from time to time. However, gave evidence in the previous answer that she finds it very hard.

T47.6

The plaintiff agreed that she uses a whipper snipper which requires her to bend over to start it.

T47.18

The plaintiff also agreed that’s she has to bend over to start the lawn mower.

T47.48

The plaintiff agreed that sometimes she needs to mow on slopes.

T48.40

The plaintiff agreed that sometimes she has to empty the catcher.

T49.2

The plaintiff agreed that sometimes she has to take the lawn mower up and down the ramp by herself.

T49.22

The plaintiff said that she does not carry a hedge trimmer with her. However, the time to which that was meant to refer is unclear. Certainly, the surveillance shows her using a hedge trimmer in 2017 but not thereafter.

T49.49

The plaintiff agreed she steps up onto the back of the ute.

T50.5

The plaintiff could not recall jumping down onto the ground. Again, that was shown to have occurred in 2017, over 3 years ago. But she agreed in the next answer that she may have done it.

T50.22

The plaintiff was asked whether she had ever lifted the lawn mower off the back of the ute without using the ramp. Her answer was ‘not recently’.

Again, that is consistent with what is shown in the surveillance.

T50.35

It was put to the plaintiff that she can lift the lawn mower off and onto the truck without a ramp. Her answer was ‘no’.

Again, the question and answer would seem to refer to the present not some years ago when it is clear she did do it, as she said at line 22 on that page.

T50.45

She was cross examined about bending her back to ’90 degrees and hardly bending her knees’. Her recollection was that she did not. The following questions and answers clearly indicated that she was unsure about what in fact she did. Given that she had no particular reason to recall this it is hardly surprising.

T51.39

The plaintiff was asked whether she put signs up since 2017. Her answer was ‘maybe put one or two up, not anymore’.

T52.42

The plaintiff agreed that she occasionally did jobs without anyone assisting her during the week. Following on she said that she was sometimes accompanied by her partner as can be seen in the surveillance.

T57.27

The plaintiff agreed she collected scrap metal off the side of the road to sell.

T59.18

The plaintiff agreed that when doing lawn mowing work in 2017 she would have been bending over from time to time. She went on to say that it set off pain when she did it. She went on to say then that if the pain was set off it didn’t stop her doing the work.

T61.3

The plaintiff did not accept that she was regularly lifting as part of her work. In the next answer she said her son was with her ‘most of the time’.

T61.28

The plaintiff agreed she may have been doing up to 6 lawns a week by December 2017.

T61.47

The plaintiff was asked if she sometimes does whipper snipper work the answer was ‘I do sometimes, yes’. She went on to agree that she lifts the whipper snipper up off the utility. All of that is shown in the film.

Thereafter the plaintiff was cross examined about histories taken by Doctors. Presumably the intent of the cross examiner was to show that the histories that she had given did not align with the surveillance material. As the Court would be aware in Mason v Demasi [2012] NSWCA 210 the Court of Appeal cautioned that there was a restricted use that histories given to doctors could be put. This was because what the medical practitioner takes a history for is not the forensic purpose for which it might be used in Court (see also Simoes v Kel Campbell Pty Limited [2018] NSWCA 28.

69. As mentioned earlier, further submissions were annexed to a schedule of transcript references

FURTHER SUBMISSIONS

2. The case pleaded in the plaintiff’s further amended statement of particulars (CBP 68ff) is that the plaintiff has, at best, a very limited ability to do the lawn mowing work that she had proposed doing full time before her accident. It is not her case that she cannot do the things that are shown in the snapshot of her life that forms the surveillance material. It is her case that she cannot do such work on anything like a full time basis. Noting shown in the surveillance materials suggests to the contrary.

3. As the Court knows the medical material is all one way. She clearly has a very severely injured lower back. To her very great credit she has not let that stop her working for the modest amount of income that she makes. Clearly, if she could do anything else making more money she would. Her evidence is that she cannot. Nothing in the surveillance material suggests otherwise.

4. The fact that she may have denied, or not recalled, one or two matters that occurred more than 3 years ago is hardly a matter that adversely affects her credit. Given that there is no medical evidence dealing with this material it can only go to her credit.

5. The surveillance material does not impinge upon her credit. Therefore, it has no probative value and should not be admitted into evidence.

6. Accordingly your honour should exercise you discretion not to admit the surveillance evidence.

Reply Submissions as to Transcript Reference

70. During oral submissions on the application, the parties each advanced submissions in reply to the respective transcript references relied upon in support or in opposition to a finding of a legitimate forensic purpose, namely, challenging the credit of the plaintiff.

71. Counsel for the defendants, in support of the relevant forensic purpose, contended that transcript references provided by the plaintiff as to her evidence support an adverse finding as to credit. In that respect, it was submitted:

1. As to T47.48, one can see that dispute between the cross-examiner on the one hand and the plaintiff and her counsel on the other, as to what she will concede and the evidence. It was submitted, it can only be read as a denial by the plaintiff that she does that and, in effect, has ever done it and the film shows her doing it on a number of occasions. In that respect, the extract relied upon is a good example of a credit issue which is assisted by the admission of the surveillance footage and, further, was a legitimate basis to withhold the footage until the witness was cross-examined.

2. As to T50.35, which concerns the plaintiff’s denial that she can “lift the lawnmower off and onto the truck without a ramp”, that extract is again relevant to credit, specifically, as to whether or not she can do a task as heavy as that and when one sees her doing it on more than one occasion, “there’s no evidence whatsoever to suggest any deterioration since the time that she was seen to be doing that, it is a genuine credit issue as to whether or not she can now and has been able to for some years”.

3. As to T50.45, which concerns “bending”, and the plaintiff’s submissions therein, it was submitted that “that is a matter about which the film speaks on many many occasions and it’s also a matter about which it was therefore legitimate to withhold and it goes directly to her credit”.

4. As to T51.39, which concerned whether the plaintiff had put up signs since 2017 and the plaintiff indicated maybe one or two but “not any more”. It was submitted that this issue is relevant to credit “because the plaintiff has gone to the trouble, when one looks at all of her evidence, to try and create a picture of her advertising the business in its early stages and not in its later stages and I can take your Honour to the film in due course if necessary but, in my submission, even from reading the reports, she is putting up signs on a number of the only 16 days of the last three years that she has been filmed”.

5. As to T52.42, the plaintiff agreed that she occasionally did jobs without anyone assisting her during the week. That is a credit issue because “one cannot fairly view the film and accept that she only - that to say that she occasionally does jobs without anyone is a fair reflection of the way that she's been working over those years”. A similar submission was advanced with respect to the plaintiff’s evidence as to the assistance provided by her son.

6. As to T61.3, the plaintiff gave evidence that her son was with her “most of the time”. In this respect, reference was made to the absence of her son in the footage that traverses a 16 day period, excluding weekends. Whilst it was accepted that Mr McDowell said he only assisted on weekends, it was submitted: “that does not mean that it was accurate or honest to say that her son was with her most of the time”.

72. As to the transcript references provided by the defendants, counsel for the plaintiff advanced the following submissions as to a selection of references:

1. As to T20.28, which concerned the assistance provided by Mr McDowell, it was submitted that caution should be taken to ensure not to examine the extracts, such as this, devoid of the surrounding context. It is true the plaintiff gave evidence that she relied upon the assistance of her son, but she also conceded that in the past she had undertaken the work by herself but it takes longer.

2. As to the instances in the surveillance footage in which the plaintiff is seen jumping off the ute, for example, which she had earlier denied doing, emphasis was placed on the fact the footage was taken “three years ago”. As such, the plaintiff should not be criticised for faults in her memory.

3. As to the T38.13, which concerns the plaintiff’s evidence as to putting up signs, it was contended that the defendant mischaracterised her evidence – as she does not deny that she put up more signs. In fact, she confirmed that she put up more signs.

4. As to T46.33, this aspect of evidence concerned working on weekends. In reply to that reference, it was submitted that no relevant issue appeared to arise. This was because none of the footage concerns weekend work. Further, “[i]t was not suggested to the plaintiff's son this morning that what he was saying about doing work most Saturdays, it wasn't suggested that that was untrue. So that evidence will be accepted”.

5. As to reference concerning mowing on slopes, emptying the lawn mower catcher, using a hedge trimmer, jumping down from a vehicle, lifting the lawn mower off vehicle and bending back 90 degrees, reliance was placed on written submissions (summarised above). In supplementation, counsel for the plaintiff also submitted:

Remembering that these were three years ago that this film was taken. One doesn't see, for example, hedge trimming, despite the best efforts of the surveillance operative, one doesn't see any hedge trimming at 2017, and your Honour will remember that's when she goes back to work. One doesn't see her jumping down from the vehicle or lifting the lawn mower in the last two or three years. So those issues are hardly matters that could be said to go to her credit in any way, shape or form.

6. It was conceded that there were at least two instances of the plaintiff giving incorrect evidence, namely, about jumping off the truck or carrying in 2017, or lifting the lawnmower off the Ute in 2017. However, it was contended that “[t]wo or three matters like that do not mean that your Honour should exercise your discretion to admit into this case 12 hours of surveillance material”.

Considerations arising under ss 135 and/or 136

73. The parties also briefly addressed the discretion of the Court to admit such evidence under ss 135 and/or 136. The plaintiff contended that as the surveillance footage has the capacity to be prejudicial to the plaintiff, noting it captures only a snapshot of time, the Court would be minded, to limit the use of it. However, as a primary submission, it was contended that it should be excluded on the basis that the evidence is “unfairly prejudicial”.

74. In reply, whilst noting that s 135 of the Evidence Act could be applied against the admission of the evidence, it was contended that the weight should be placed on the probative value of the evidence, which, it was submitted, “is manifest in the case of personal injury damages based on lack of capacity to work”. Counsel for the defendants contended that the surveillance footage should not be considered to have any prejudicial effect.

Ruling of the Court

75. There was no dispute that the defendants had not complied with the provisions of r 31.10(1). The surveillance footage plainly falls within the definition of “audio-visual recording” pursuant to r 31.10(4) and the plaintiffs were not given the opportunity to inspect the recording 7 days prior to the commencement of the hearing (in fact, the recording was provided at the commencement of the hearing). Whether the application to address the footage was admissible fell for determination for the purposes of r 31.10 under sub-rule (2).

76. By r 31.10(2), a party who fails to comply with subrule (1) may not tender the audio-visual recording except under two circumstances:

1. in the case of a “prescribed item”—where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item; or

2. in any other case—by leave of the court.

77. The defendants primarily relied upon the former basis but alternatively sought leave of the Court.

78. To constitute a “prescribed item”, the audio-visual recording must be obtained “in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing”. I accept the submission advanced by the defendants that the footage was obtained by Coles for the purpose of testing the plaintiff’s credibility, inter alia, with respect to her volume of hours and jobs worked and to demonstrate, in that respect, that she has greater physical capacity and less restriction then set out in her testimony and in statements to medical practitioners.

79. Both parties produced schedules of transcript references and advanced submissions as to why the Court would or would not be satisfied that there existed a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item. The defendants, in that respect, emphasised that credit issues arise in several aspects of the plaintiff’s physical capacity. Several instances were sited, including references relied upon by the plaintiff, in which the plaintiff either down plays, denies or does not accurately describe the reality of her capacity – which may be contrasted with the footage (for example, her capacity to bend and lift the mower off the ute). Reliance was also placed on the accumulation of issues referred to is as significant as the examples highlighted for the attention of the Court.

77. In contrast, counsel for the plaintiff rejected the assertion that the transcript references produced by the defendant support adverse credit findings and, as such, do not sustain a finding of a legitimate forensic purpose. In that respect it was contended that the plaintiff generally agreed with what is shown in the surveillance footage, further, it was contended that to criticise an absence of specification or certainty of memory recall as to matters that occurred over three years ago is not a sound foundation to doubt the credibility of plaintiff.

78. Following a consideration of the submissions advanced by the respective parties, together with reference to the transcript references relied upon and my own observations of the surveillance footage and the evidence of the plaintiff, the Court accepted the submissions advanced by the defendants, because there are significant discrepancies between the plaintiff’s evidence as to her physical capacity and that shown in the surveillance footage.

79. The service of the surveillance footage in advance would have hindered the legitimate forensic purpose sought to be tested in the light of those discrepancies, namely, the credit of the plaintiff. It follows that in order to properly test the plaintiff’s credibility, the surveillance footage could not be served upon the plaintiff prior to the trial. To do so may have permitted the plaintiff to tender her evidence, a consideration reinforced, in part, by the evidence given by the plaintiff in the trial.

80. I do not consider that the evidence in the footage assists or materially assists the plaintiff’s case. Hence, the defendants satisfied, in my view, the provisions of r 31.10(2)(a).

81. If leave were required of the Court, in the examination of the alternative case brought by the defendants, I would grant that leave.

82. An issue has been raised as to the exercise of the Court's discretion. Whilst not precisely defined, I have assumed that the submissions in that respect were directed to the provisions of ss 135 and 136 of the Evidence Act. I do not consider that those provisions and the considerations within them in either case should result in the Court refusing to receive the evidence in question.

83. There was no suggestion that the material was misleading or confusing. Further, the evidence is plainly relevant and for the reasons given with respect to r 31.10(1) the evidence has a reasonably high probative value. The timing of the receipt of the evidence had, no doubt, a prejudicial effect but, in all the circumstances, not such as to make the evidence “unfairly prejudicial”.

84. Therefore, to the extent that an application was before the Court under r 31.10 of the UCPR, it was granted. For completeness, to the extent that there was an objection to the evidence sought to be led in the form of the surveillance footage, the objection is overruled.

85. As to the other material tendered on the application, namely, surveillance reports and the issue of costs, the Court noted:

A bundle of material came before the Court, and in particular surveillance reports for the purposes of ruling upon the application/objection. I have not admitted that material as it is not sought to be admitted in the application presently before the Court but have regard to it for the purposes of the determination I have made. I mention that fact because there is much of the material contained in the surveillance report which prima facie may be objectionable in its own right, save for the purposes of considering the application and objection in question. I have, for the purposes of s 135. Taken into account the consideration as to the operation of costs with respect to the present application. That is a matter that will remain extant in the Court's consideration of the proceedings but it's not one that I propose to pass upon at the present time in that respect.

I mention the question of costs both in terms of the notion of there being an application but also in terms of the provisions of s 135 and the considerations as to costs that may arise in that context.

Plaintiff’s Application to Tender the Report of Dr Fearnside

89. On 27 October 2020, the plaintiff sought to tender the report of Dr Fearnside dated 9 July 2020.

90. The plaintiff’s application is brought pursuant to r 31.28, which is extracted below:

31.28 Disclosure of experts’ reports and hospital reports

(1) Each party must serve experts’ reports and hospital reports on each other active party—

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3) Except by leave of the court, or by consent of the parties—

(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c) the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied—

(a) that there are exceptional circumstances that warrant the granting of leave, or

(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).

91. It is common ground that the provisions of r 31.28(1) and (3) would exclude the admission of the report of Dr Fearnside by virtue of the report being served contrary to an order of the Court, unless leave were granted by the Court to receive the evidence by virtue of the exception contained in the preamble to r 31.28(3) and r 31.28(4)(a).

92. The Court has a discretion to admit relevant expert evidence despite failure to serve a report in compliance with this rule (or any order or direction): Cameron v Baker (Court of Appeal (NSW), August 1980, unrep); Dawson v Hall (Court of Appeal (NSW), 29 July 1994, unrep). The discretion conferred by r 31.28(4)(a) is limited by the requirement that the court is satisfied there are “exceptional circumstances” warranting the grant of leave. The rule does not set out what constitutes “exceptional circumstances” - that assessment must depend on a careful consideration of the facts of the individual case: AWA v Independent News Auckland [1996] 2 NZLR 184 at 186.

93. In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66], Campbell J considered the meaning of “exceptional circumstances”:

[66]   Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2)(2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4):

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward)[2000] 1 QB 198 (at 208).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland[2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295[2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

(See also State of NSW v Tyszyk [2008] NSWCA 107 at [206]-[207].)

94. The mere fact that an opposing party is aware of the contents of the report is not necessarily sufficient to justify leave being granted to excuse non-compliance with the rule: Carey v Gruzman (Court of Appeal (NSW), 10 April 1991, unrep) at [10]). On the other hand exceptional circumstances, sufficient to justify leave, may exist where the opposing party is not only aware of the contents of the report but has had ample notice of its likely tender (for example as a result of prior cross-examination) and the tender would not give rise to significant prejudice: State of New South Wales v Tyszyk at [188]–[208].

95. In State of NSW v Tyszyk, in making a finding of exceptional circumstances, Campbell JA observed at [207]:

…the combination of the reports having been cross-examined on, the reports having been in the plaintiff’s possession for nearly one year, the defendant having notified an intention to tender the reports, lapse of a reasonable time for the plaintiff to take steps to deal with the tender of the reports (which might or might not be 28 days), and lack of any identifiable prejudice would, in the absence of any other countervailing factors, amount to exceptional circumstances.

96. The plaintiff advanced the following submissions, consisting of relevant procedural background, in support of the existence of exceptional circumstances:

1. On 28 September 2017, the plaintiff had previously obtained a medicolegal report from Dr Yeo, a spinal and rehabilitation specialist.

2. On 22 June 2020, the proceedings were listed for directions before this Court. The plaintiff was ordered to serve any refresher medical evidence by 8 July 2020.

3. Dr Yeo has since retired. As such, it was not possible to obtain a “refresher report” in order to comply with the rules of the Court.

4. The plaintiff sought to obtain a report from Associate Professor Fearnside. Professor Fearnside, whilst being a neurosurgeon, is also a spinal specialist and thus has expertise similar to that of Dr Yeo. It was also noted Associate Professor Fearnside had available to him the same radiological material as was available to Dr Yeo.

5. In the plaintiff’s submission the retirement of Dr Yeo constitutes exceptional circumstances warranting the grant of leave.

97. In written submissions dated 27 October 2020, the plaintiff advanced submissions critical of the late objection by the defendants, noting the report was served on 15 July 2020. Further, the plaintiff contended that upon review of all the medical evidence “it is difficult to see that the opinion of Professor Fearnside could take the defendants by surprise. Frankly, their own Dr Stephen provides a similar, poor, prognosis”. Particularly reliance was placed upon these two factors in support of a finding that “there can be no prejudice to the defendant[s]” in admitting the report.

98. In light of the emphasis placed on similarities between the medical evidence, as a contraindicator against a finding of prejudice, the relevant submissions are extracted in full below (together with references to the court book provided by the plaintiff):

15. At CBP 262 Professor Yeo under the heading ‘PAST HISTORY’ recorded that the plaintiff had recently become interested in ‘gardening activities’. However, he confirmed that she was unable to participate in any repetitive, heavy lifting, particularly that involving rotation.

16. Dr Fearnside on CBP 278 ([7.2]) refers to the plaintiff requiring assistance in her lawn mowing business and a resultant fall in her earning capacity.

17. Of course, Dr Giblin also deals with the matter. At CBP 270 under the heading ‘Work’ the doctor recorded that the plaintiff was able to do 3 – 5 jobs a week with her son to help. Dr Giblin observes that the plaintiff has a real restriction in her earning capacity.

18. Accordingly, on the issue of work capacity the Court would not be satisfied that there was any appreciable difference in the opinions of the two doctors.

19. In the conclave report (CBP 287) at [4] Doctors Giblin and Stephen also record a limitation in her ability to do her lawn mowing business because of her symptoms.

20. In regards to prognosis Professor Yeo at CBP 263, [5] recorded the possibility of some improvement but noted that the plaintiff would remain suspectable to recurrence of low back pain. That was particularly so where it involved the rotation of the lumbar struck and pelvis. He noted scar tissue had developed in the region of the L5/S1 nerve roots, clearly being a matter that leads to her current problems.

21. In his opinion (CBP 278, [7.4]) Dr Fearnside opined that her prognosis was ‘pretty much as she now presents’. Like Professor Yeo he was of the view that she would continue to experience low back pain with radicular symptoms in her legs. He also noted objective evidence of a right L5 nerve root lesion, that being in the same area that Professor Yeo had referred to. He thought that her problems were permanent.

22. In the conclave report at CBP 288 Doctors Giblin and Stephen said this:

‘The prognosis is not good. The plaintiff would continue to have severe problems with low back and leg pain into the indefinite future. Both doctors had also noted possible impingement on the exiting left L4/5 nerve root (CBP 287, [6]).’

23. When one reviews all the medical evidence, but particularly that referred to above it is difficult to see that the opinion of Professor Fearnside could take the defendants by surprise. Frankly, their own Dr Stephen provides a similar, poor, prognosis.

99. The tender of the report was objected by the defendants. Whilst accepting procedural history summarised by the plaintiff, counsel for the defendants also noted that report was previously sought to be filed in the proceedings and, on 15 October 2020, the Common Law Registrar ultimately made a determination unfavourable to the plaintiff.

100. The Court’s ruling, in this respect, was provide via an email to counsel dated 28 October 2020. That email is extracted below:

His Honour has considered the plaintiff’s application to admit the report of Dr Fearnside of 9 July 2020. The application was opposed by the defendants.

For the purposes of considering the application, his Honour had regard to the written submissions of the parties and the notice of motion supported by the affidavit of Ms Tanya To of 9 October 2020, which was heard before the Common Law Registrar.

The application is refused.

101. The reasons for that ruling may be shortly stated:

1. On 22 June 2020, the plaintiff was directed by the Common Law Registrar to file and serve “refresher” medical evidence by 8 July 2020. Rule 31.28(1)(a) provides that each party must serve expert reports and hospital reports “in accordance with any order of the court”. The report of Dr Fearnside dated 9 July 2020 contravenes the order of the Court in two respects:

1. being a report produced by a new medical expert, it may not be accepted as “refresher” medical evidence; and

2. having been served after 8 July 2020, it was, in any event, provided late.

Accordingly, leave is required pursuant to r 31.28(3) and (4).

2. The plaintiff properly conceded that exceptional circumstances were required to be established to warrant the grant of leave to admit the report. In that respect, the plaintiff primarily relied upon the retirement of Dr Yeo. In an attempt to emphasis the importance of the expert, reliance was placed upon his expertise with respect to spinal injuries.

3. I do not accept that the retirement of one expert and the inability to produce a singular “refresher” report, in the face of substantial medical material, constitutes exceptional circumstances, particularly, in light of the fact that updated reports could instead have been obtained from either of the two treating neurosurgeons who have previously provided reports, Dr Tait or Dr Davidson, and thus, have been tendered under UCPR 31.28(4)(b). Such an approach was permitted and invited by the 22 June 2020 direction of the Court.

4. Further, the suggested course to introduce a potential fourth neurosurgeon into the plaintiff’s case at a late stage of the proceeding must be balanced against the possibility to prejudice to the defendants, which is twofold. First, Dr Fearnside’s report, notwithstanding any similarities as to medical opinion, is not a “refresher report” – it is fresh evidence. The defendants correctly submitted that the report introduced a further element to the plaintiff’s case relating to spondylitic change at L4/5, and raised the possibility of an acceleration of degenerative change at that level, (adjacent to the fused level). Whilst there may be matters of concurrence of opinion between the experts, to which the plaintiff identified and relies upon to counter arguments of prejudice, the relevance of this new information was not addressed.

5. The overall lateness of the sought tender is particularly relevant in light of its proper characterisation as fresh evidence.

6. In all the circumstances, I find the plaintiff has not established exceptional circumstances that would warrant the grant of leave to admit the report of Dr Fearnside.

CREDIT

The Evidence of the Plaintiff

Defendants’ Submissions

102. Turning to the credit of the plaintiff, counsel for the defendants contended the Court would not accept the plaintiff as a honest or convincing witness. That contention was supported by reference to the plaintiff’s evidence during cross-examination and in particular, the contrast between her manner of answering questions prior to viewing the surveillance footage. Counsel for the defendants also sought that the Court place particular weight upon the surveillance footage in its assessment of the plaintiff’s credibility vis-à-vis her account of physical limitations, capacity to work and pain. It was also contended that the surveillance footage casts doubt upon aspects of the medical evidence that relied upon the plaintiff’s self-reporting.

103. Counsel for the defendants contended the plaintiff was “an entirely unconvincing witness”. She was “terse and guarded” in her answers. She would continually adjust her evidence where she perceived there may be risk to her in not doing so. This was particularly evident with respect to her evidence concerning her various work activities, the putting up of signs for the business after surgery and the proportion of customers who paid cash. During oral submissions, it was submitted: “her approach to questions seemed to be, I don't want to deny anything outright, but I don't really want to admit anything outright. She was quite aware, it would seem, of the risks in doing either”.

104. The ultimate example, it was contended, was an attempt by the plaintiff to “sweep away so much of what was inconsistent in her evidence when compared to the surveillance footage”. It was submitted that the plaintiff “insisted” that she had testified that her condition had deteriorated since 2017 (reference was made to T107.7). The transcript, it was submitted, reveals this too was untrue. The relevant portion (together with a portion of the cross-examination that follow) relied upon appears below (T107.7-26):

Q. Do you know when you gave that evidence?

A. Yesterday.

Q. You saw yourself, did you not, on 8 November 2017, lifting a lawnmower off the utility tray?

1. up to $90 per week for fuel;

2. $180 for car petrol per week; and

3. $24 per week for blades and servicing.

480. As a result of injuries sustained in the accident, the plaintiff was unable to resume her lawn mowing and gardening business in the manner that she had hoped to carry it out prior to her accident. She did not return at all until May 2015.

481. At the time the plaintiff returned to her lawn mowing and gardening business in about May 2015, she performed 3 to 6 jobs per week at $50 per job. This amounted to gross weekly earnings of between $150 to $300 per week.

482. Reducing the weekly income of $2,100 by $334 leaves a taxable income of $1,766 per week. On current tax rates that would amount to $1,310 net per week.

483. However, the particulars relied upon by the plaintiff provide a significant margin for the fact that the business was being built up and other such vicissitudes. Accordingly, for the period up to the present the claim proceeds on a basis that she would have earned $800 net per week. The plaintiff does not seek to resile from that claim.

484. In relation to the future, the claim, more realistically, is based upon a net loss of earnings of $1,250 per week. This is amply justified by the evidence.

485. Further, so far as the future is concerned the Court would accept the plaintiff’s evidence that she could work at least 30 jobs a week earning $50 to $60 per job. That amounts to $1,500 to $1,800 gross per week. From that tax would have to come as would expenses.

486. Of course, the matter is one where some speculation is required given that she had only just started her business. What the Court would accept is that this lady had a very strong work ethic, even in the face of injuries that might have brought other people down.

Defendants’ Submissions

487. In terms of past economic loss, it is evident that the plaintiff was working at or near full capacity through much of 2015 despite the accident. She conceded she was doing up to nine lawn jobs a day in that year: T 35.20. She registered her business name in the middle of that year: T 112.15. On 16 October 2015 Dr Tait recorded that she was still able to mow 6-8 lawns a day: CBP 243.

488. Even taking appropriate caution in relation to the accuracy of histories in medical reports, this is likely what she said, because the fact is further explained in the same sentence by the doctor in a logically consistent fashion. The plaintiff’s account of the what she in fact said, (I probably have said I would have been able to do that much, (uninjured), T 38.30), is highly improbable, because it is so unlikely that a statement to that effect would have been incorporated in any way into the doctor’s history of what she was doing, and the plaintiff herself was such an unreliable witness.

489. The evidence then would only seem to support past economic loss claims for some closed periods leading up and recovering from the June 2016 operation.

490. Economic loss damages are to be awarded for loss of capacity to earn. A full and proper consideration of the surveillance evidence, and the plaintiff’s quite unsatisfactory evidence in the face of this, leaves little basis to conclude that there remains any economic incapacity at all. On any view she continues to regularly perform what she herself described as “hard work”. The regular and onerous nature of the work can be seen on the film, and further was recorded by Dr Ho is his report of 4 October 2016 at CBP 292, (although again the plaintiff saw fit to deny the accuracy of the doctor’s report).

Conclusion: Economic Loss

491. A substantial part of the defendant’s submissions accord with the findings I have made as to the plaintiff’s evidence, her undertaking of work and her capacity to undertake hard physical work. I also agree with the defendant’s historical summary of work undertaken by the plaintiff and the relevant passages of the plaintiff’s evidence relied upon in the defendant’s submission on this issue.

492. The defendant proposed damages for past economic loss upon the bases noted for each time period:

(a)   January 2015 to 31 December 2015:

The Plaintiff was building her business which commenced in late 2014. In October 2015 the Plaintiff was doing multiple jobs (possibly 8-9) per day. The Plaintiff alleges she deteriorated until the surgery in June 2016. The Defendant allows no economic loss until 31.12.15.

Nil

(b)   1 January 2016 to 5 June 2016:

The Plaintiff deteriorated until the surgery. The Defendant allows three months (13 weeks) at $800 net per week.

$10,400

(c)   5 June 2016 to 31 December 2016:

The Plaintiff gradually returned to full fitness. The Defendant allows $800 net per week for 6 months (26 weeks).

$20,800

(d)   1 January 2017 to date:

The plaintiff was fit for all forms of employment.

Nil

493. By reference to the respective periods in the above schedule, I allow damages for the periods (b) and (c) for the amounts shown and disallow claims for economic loss for periods (a) and (d).

494. I also accept that allowance should be made for a cushion or buffer against future disadvantage in the open labour market becoming manifest. The defendants’ schedule of damages contained an amount of $25,000. I would allow $50,000.

Domestic Assistance

Plaintiff’s Submissions

495. The report of Ms Zeman contains much inadmissible material. For example, at CBP 882 in para 8.6, the author, an occupational therapist without medical qualifications, delves into medical matters, particularly in the second and last sentences. In CBP 886-887 the author has sought to undertake what would normally be a medical examination and then put her own, non-medical, opinion in her report following from those examinations.

496. At CBP 889 the author has apparently undertaken psychometric testing. What qualifications she had to do that is unknown. Further, the results that she has produced apparently rely upon unverifiable testing. The methodology is not disclosed and the results are not disclosed beyond her interpretation of them.

497. In Brighten v Traino [2019] NSWCA 168 at [78]-[79], the Court of Appeal was particularly critical of neuropsychological testing “the validity of which was impenetrable and unproven in Court”.

498. The purpose of the assessment undertaken by Ms Zeman was to:

1. undertake an Occupational Therapy Assessment of Ms Jacqueline Pike’s living arrangements and ability to independently undertake Activities of Daily Living;

2. undertake a review of Ms Jacqueline Pike’s current status and treatment requirements;

3. provide recommendations regarding Ms Jacqueline Pike’s current functional abilities and limitations.

499. Ms Zeman was not provided with the reports of Associate Professor Yeo, Dr Matthew Giblin or Dr Ho.

500. At 5.6, BACKGROUND Ms Zeman stated “Despite reported total resolution of spinal symptoms in 2013, Ms Jacqueline Pike has not worked since 2012, assumed to be associated with her ongoing symptoms of Buerger’s Disease”.

501. At 6.24, HISTORY Ms Zeman stated “Ms Jacqueline Pike stated that prior to the subject incident, she last worked in 2012, undertaking lawn mowing and property maintenance as a contractor”.

502. At 6.25, HISTORY Ms Zeman stated “At the time of the subject accident, Ms Jacqueline Pike was on a disability support pension...in the process of starting up her own lawn business in the Penrith District. …she had started advertising…she had not been working prior to such given her having been diagnosed with an autoimmune disease and given her previous history of spinal injury and associated surgery”.

503. At 6.26, HISTORY Zeman stated “…following the subject accident…she went on to establish her lawn mowing business….”

504. At 14.2, Post Incident Roles and Responsibilities Ms Zeman stated “Ms Jacqueline Pike advised that some four months following the subject incident, she started up her lawn mowing business….”

505. Having regard to the evidence available in these proceedings, the above statements are clearly not correct.

506. At 8.6, PREMORBID AND CONCURRENT MEDICAL HISTORY Ms Zeman provided an opinion as to the triggering of Buerger’s disease.

507. Ms Zeman is not qualified to give this opinion nor was such opinion reasonably required for the purposes of the assessment.

508. At 12, FUNCTIONAL CAPACITY EVALUATION, Ms Zeman reported (12.1.3 Cooperation and Engagement) “Ms Jacqueline Pike…initially refused to allow observation of her home without solicitor approval…was unable to assess the whole home, as assessment access was restricted to living areas, kitchen and bathroom only”.

509. In examination-in-chief, the plaintiff denied stopping the OT access to parts of her house other than the bedrooms (T 25.38-T 26.5).

510. At 13, RESULTS OF STANDARDISED TESTING Ms Zeman undertook psychometric testing.

511. The plaintiff submitted the Court should have no regard to the purported results and the opinions expressed by the consideration of the testing. Ms Zeman is not qualified to issue psychometric testing, nor is she qualified to interpret any purported results from such testing. She has no qualifications in general medicine or psychology.

512. Such testing was not reasonably required for the purpose of the assessment.

513. At 14.4, Assumptions regarding Gratuitous care periods, Ms Zeman notes from the report of Dr Tait, “She is having great trouble walking in the street; however, she is still able to mow 6-8 lawns a day as she finds it easier to walk leaning forward with the mower”. Ms Zeman further noted “Ms Jacqueline Pike reportedly continued to undertake such work until 2 May 2016, gaining assistance from her son as necessary”.

514. At 14.7.2, Internal Housekeeping Ms Zeman assessed the plaintiff as having the functional capacity to complete light routine household maintenance tasks, including vacuuming, mopping and bathroom maintenance. This assessment is based upon a report to Dr Tait, after the subject incident and before surgery in June 2016, and apparently disregarding of the plaintiff’s stated functional restrictions.

515. Ms Zeman opined that, with respect to reported difficulties with packing and unpacking and the need for assistance from her children, that “this would have been required in any event, given her past history of spinal injury and co-morbidities”. This assessment failed to have regard to the plaintiff’s report of no pain or restriction of movement prior to the incident in January 2015.

516. In Internal Housekeeping Gratuitous Assistance (Past Care) (other than periods 1,3,5 and 6) Ms Zeman assessed the plaintiff as “having the capacity to likewise engage in routine residential maintenance tasks with pacing of task performance”.

517. The plaintiff submitted that the above assessment is based upon a false premise. That false premise being that at “other times she demonstrated the capacity to engage in heavier tasks such as mowing associated with her business”. The plaintiff’s evidence and the uncontroversial medical evidence, including treating general practitioner notes, should be accepted above this assessment.

518. Similarly, with respect to the assessment of 14.7.3 Laundry Gratuitous Assistance (Past Care), the plaintiff submitted the necessity for assistance from her children with respect to hanging out laundry, the plaintiff’s evidence and the uncontroversial medical evidence, including treating general practitioner notes, should be accepted above this assessment.

519. With respect to 14.7.5 External Heavy Household Maintenance, Ms Zeman opined that for the period 11 May 2015 to 2 May 2016 “the sequelae of the subject incident itself did not impact on heavy household maintenance tasks”. The plaintiff submitted that the evidence should be preferred as to her pain and restriction of movement and functioning during this period. Ms Zeman relied upon what Dr Tait says that she told him (Dr Tait’s report of 16 October 2015). In cross-examination, the plaintiff denied telling Dr Tait she was mowing 6-8 lawns a day.

520. At no stage did Ms Zeman report what the plaintiff says about the frequency and nature of the lawnmowing work she does.

521. At 14.7.6 Shopping/Financial Management (CBP 903), Ms Zeman provided no basis for the assessment that the plaintiff is assessed as fully independent with shopping. The plaintiff submitted the evidence of the plaintiff and her son should be preferred.

522. At CURRENT SYMPTOMS, Ms Zeman reported the subjective experience of the plaintiff’s pain as at the date of the assessment - April 2018. The rating given with respect to pain and weakness across the entire lumbral sacral region, pain aggravated by seating etc, was said to be 5-8/10.

523. An ntermittent ‘tearing’ sensation over the bilateral hips, radiating down the lateral and posterior aspect of both lower limbs and into the feet was given a rating of 5-8/10.

524. The plaintiff submitted that in the contemporaneous clinical notes of Dr Ong, the reports Dr Davidson, Dr Ho and Dr Tait there is continued reference to back pain. These references also include the prescription of powerful analgesia such as Lyrica, Mobic, Endone and Targin. It was also submitted that no reasons are given by Ms Zeman for such a broad rating.

525. The plaintiff further submitted that it is inexplicable in the circumstances of the objective medical evidence as to why such a broad range of ‘subjective experience of pain’ is provided, when the objective medical material and the plaintiff’s own report identifies serious and persistent pain. Further, again, having regard to the objective medical material, and the plaintiff’s reported pain and restriction of movement provided at 10. CURRENT SYMPTOMS, the assessment provided by Ms Zeman at 12.2.4. Range of Motion (ROM) for Hip - Normal active ROM in all planes - is inexplicable.

526. In all of the circumstances, no weight should be given to the report of Ms Zeman and the evidence of the plaintiff and her son should be preferred. Further, the objective medical evidence with respect to capacity and past and future care should be preferred.

527. For those reasons alone the plaintiff submitted that little weight can be placed upon the report of Ms Zeman.

528. Further, the way that Ms Zeman approached the matter was apparently to disbelieve the plaintiff, something that Dr Stephen certainly did not. For example, Ms Zeman finds that so far as the internal housekeeping is concerned the plaintiff was independent. Yet under the heading ‘Comment’ she recorded, presumably from the plaintiff, a history that she, the plaintiff, currently relies upon her son for assistance. However, in the third last paragraph of that page Ms Zeman gives a medical opinion, namely that the plaintiff’s report of difficulties with tasks such as vacuuming, mopping and bathroom cleaning, were not consistent with her reports to Dr Tait. Essentially, Ms Zeman chose to disbelieve this plaintiff and instead make her own medical evaluation.As the Court of Appeal has found elsewhere, the lay evidence of persons involved in the house cleaning is to be preferred over the assessment of someone such as Ms Zeman.

529. The plaintiff’s evidence and that of her son is that he has been spending about 10 hours per week assisting her. Accordingly, a claim is made in that regard on the basis that the care has been provided gratuitously.

530. However, that is unlikely to continue forever. The plaintiff should be provided with damages that allow her to engage a cleaner for some hours a week. The claim in the schedule of damages claims 8 hours a week at $41 per hour. There is evidence as to what it costs to employ such persons, namely $52 per hour. That leads to a claim for future domestic assistance of $375,232.

Conclusion

531. I accept that, as contended for the plaintiff, there are aspects of Ms Zeman’s report which should be viewed with considerable caution and afforded little weight particularly as opinions of a medical character.

532. Nonetheless, in my view, the evidence does not ultimately support any claims for domestic assistance for the past. There may have been some periods where she required gratuitous assistance in this regard, but having regard to her work history, it has not been established that there have been any periods of 6 hours per week for 6 months in accordance with the statutory threshold.

533. I have already found that the evidence of the plaintiff’s son as to domestic assistance may be doubted. His statements of what chores he did, and more importantly why, cannot be reconciled with the plaintiff’s demonstrated strong physical capacity in 2015, and since 2016: His estimates of time spent years earlier, as a teenager, were unconvincing.

534. There is no basis to conclude that the plaintiff will require any domestic assistance in the future, paid or otherwise. She continues to regularly perform tasks in her work as or more onerous that any household chores.

535. I agree that, even the occupational therapist’s modest allowances for assistance, were too much. Ms Zeman was however correct in using the fact that the plaintiff could do paid gardening work as an objective indicator, rather than simply accepting the plaintiff’s statements. Ms Zeman’s assessments as to the plaintiff’s lawn mowing work are compatible with the findings in this judgment as to the plaintiff’s capacity.

536. I note that during cross-examination, the plaintiff gave the following evidence as to the difficulties she experiences with “bending” for housework in contrast to lawn mowing work which underscores why her claim for domestic assistance should fail, in the light of my findings as to the unreliability of her evidence. An extract of that evidence appears below:

Q. You’ve given some evidence, haven’t you, about not being able to do your own housework, that’s right, isn’t it?

A. Yes.

Q. I suggest to you that the work that you have been doing for years now, since the surgery in 2016, is physically heavier than any of your internal household chores, isn’t that right?

A. It’s not – not that, it’s the bending over. Bending over back, I can barely stand up afterwards.

Q. But you do regular bending in your work and get on with the job, don’t you?

A. I need the money or I go to work and I take medication and I’m in a lot of pain.

Q. What I suggest to you again is that the work that you do get on and do in your lawnmowing job is physically heavier than any of your internal household chores, do you accept that or not?

A. No.

Q. You’ve told people, haven’t you, that you have difficulty mopping and sweeping in your own home?

A. Yes, I do.

Q. Yet you can use a whipper snipper and a lawnmower in other people’s yards, correct?

A. Yes.

Q. So it’s not true, is it, to say that you have difficulties sweeping and mopping, is it?

A. Yes, it is.

Q. How is that so?

A. Bending over continually while you’re vacuuming or mopping hurts more than anything. I cannot bend at that rate. I can bend over to pick something up but I can’t bend over and keep bending over.

537. Any claim for past domestic assistance by the plaintiff would, in my view, be at best for closed periods and would no surpass the threshold under s 15(3) of the Civil Liability Act. I do not consider the plaintiff will require further domestic assistance.

Out of Pocket Expenses

538. The plaintiff’s Schedule of Damages makes a claim for $174,228 for past treatment expenses. Of this $137,941 has been paid by Coles.

539. The claims additional amounts for Medicare ($7,500), pharmaceutical expenses ($4,168.84), the Nepean Hospital (unpaid of $1,570) and parking and travel expenses ($3,047.22).

540. The plaintiff was to bring in revised Medicare amounts to the date of hearing but has not done so. I will deal with this matter further below.

Conclusion

541. Past out of pocket expenses have been covered by Coles in the sum of $137,941. The payment of those expenses should be allowed. I do not consider there is a basis for further expenses. The position as to Medicare amounts will need further consideration.

Treatment expenses/Future Out of Pocket Expenses

Plaintiff’s Submissions

542. So far as the future is concerned the plaintiff takes various medications and that is obviously going to continue for the rest of her life. There is a possibility, but a possibility only, that she might require some future surgery as suggested by Dr Giblin in the conclave joint report.

542. A claim for $40,000 for future treatment expenses is made and it is submitted that that is more than reasonable in all the circumstances.

Conclusion

544. The evidence does not establish that future surgery is necessary because of the accident, or likely to be offered to the plaintiff, or likely to be chosen by the plaintiff. The joint report of the medical experts was divided on the need for this treatment] and the plaintiff has expressed reluctance.

545. Otherwise, the plaintiff continues to take medication, as she did for many years prior to the accident.

546. As noted, Coles has already paid an amount of $137,941.80 to or on behalf of the plaintiff in relation to past out of pocket expenses with respect to the accident. Coles has also paid a $20,000 ex gratia lump sum, without admission of liability. These sums need to be accounted for in any damages award.

547. The defendant accepted that an allowance should be made for future medical expenses against the chance that the accident related condition may flare up and require medical or GP visits. It has allowed for $2,000.

Conclusion

548. In my view, an allowance of $8,000 should be made for future out of pocket expenses.

CONCLUSION

549. Coles is liable in negligence for any injuries, loss or damages occasioned to the plaintiff arising from her fall at the car park outside a Coles supermarket on 20 January 2015.

550. I do not find the owners liable in negligence.

551. No issue of contributory negligence arises in the proceedings. By virtue of arrangements between the defendants, the cross-claims have fallen away.

552. The Court has made determinations as to each head of damage contested in the proceedings which are specified in the section of my judgment bearing that heading.

553. At the conclusion of the hearing, the amount of Medicare charges remained uncertain. The Court indicated that, in that light, some further steps may be required before judgment in order to determine the quantum of damages. The Court has not received any update in that respect.

554. The defendants should bring in short minutes of order reflecting this judgment, after discussion with the plaintiff, as to Medicare charges. There is liberty to have the matter listed in the event of any dispute as to those charges or the form of the short minutes of order. Costs shall be reserved.

DIRECTIONS

555. The Court directs that the defendants bring in short minutes or order reflecting this judgment within 14 days of the publication of the judgment

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Amendments

19 January 2022 - Amount of out-of-pocket expenses at [538] corrected (from $157,941 to $137,941).

Decision last updated: 19 January 2022