Reid v South West Regional College of TAFE WA
[2014] WADC 134
•3 OCTOBER 2014
REID -v- SOUTH WEST REGIONAL COLLEGE OF TAFE WA [2014] WADC 134
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 134 | |
| Case No: | CIV:2206/2007 | 7 APRIL - 2 MAY 2014 | |
| Coram: | O'NEAL DCJ | 3/10/14 | |
| PERTH | |||
| 47 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's action dismissed | ||
| PDF Version |
| Parties: | VICTORIA REID SOUTH WEST REGIONAL COLLEGE OF TAFE WA THE FEDERATION OF WESTERN AUSTRALIA POLICE & COMMUNITY YOUTH CENTRES |
Catchwords: | Negligence Occupier's liability Recreational activity Obvious risk Risk warning Turns on own facts |
Legislation: | Civil Liability Act 2002 s 5O, s 5I Occupiers' Liability Act 1985 |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SOUTH WEST REGIONAL COLLEGE OF TAFE WA
First Defendant
THE FEDERATION OF WESTERN AUSTRALIA POLICE & COMMUNITY YOUTH CENTRES
Second Defendant
Catchwords:
Negligence - Occupier's liability - Recreational activity - Obvious risk - Risk warning - Turns on own facts
Legislation:
Civil Liability Act 2002 s 5O, s 5I
Occupiers' Liability Act 1985
Result:
Plaintiff's action dismissed
Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr P E Jarman
Second Defendant : Ms F Vernon
Solicitors:
Plaintiff : Not applicable
First Defendant : Jarman McKenna
Second Defendant : Gilchrist Connell
Case(s) referred to in judgment(s):
- O'NEAL DCJ:
Introduction
1 In 2006 the plaintiff was a student attending a program at the first defendant's TAFE college in Bunbury. She was then 48 years old.
2 At that time the second defendant operated premises in Harvey called the Mornington Adventure Camp (MAC).
3 The TAFE program that the plaintiff was taking part in was called the 'New Opportunities for Women' program, known by the acronym 'NOW'. As part of the NOW program students sometimes took part in recreational activities at the facility operated by the second defendant. On 24 October 2006, while taking part in one of these activities, the plaintiff fell and hurt herself.
4 The activity, described as the 'tyre activity', was part of a low ropes recreation course. In some manner that is not entirely clear, the plaintiff managed to fall off a tyre she was standing in that was suspended about 30 - 40 cm above the ground. The plaintiff fell off something very much like the kind of tyre swing that would be found hanging from a tree in many suburban backyards. She fell onto earth covered with a layer of wood chips or mulch, and sand.
5 The plaintiff alleges that her fall was caused by each defendant failing in broadly similar ways to take reasonable care for her safety in using the MAC facilities.
6 This fall, the plaintiff says, caused her both significant physical and psychological injuries. It has resulted in a list of serious injuries and permanent disabilities that runs for a page and a half of particulars. It has left her she says with an inability to work, or study, or to enjoy any of the ordinary pleasurable activities of life. She claims for lost earning capacity, past and future, in the amount of $547,000.
7 On all of the evidence the fall itself was an incident that scarcely warranted notice by other participants at the time. In order to understand how such a minor accident could result in claim of such proportions it is necessary to understand something of the plaintiff's history both before the fall and since.
The plaintiff's history
8 The plaintiff's life has been eventful in both good and bad ways. That is particularly the case if all that she says is accepted at face value. I will spend some time in these reasons describing that history. It provides a necessary context for the conclusions that I have reached, although it is not possible to tell the story in a strictly chronological way.
9 When she was still quite young, in 1965, the plaintiff was involved in a bicycle accident. That resulted in an injury to her left shoulder that was eventually treated by surgery in the mid-1980s. In 1986 she was diagnosed with depression and prescribed antidepressant medication. She has taken that medication ever since. In 1995 she received a disability pension because of her depression. She has been on that disability pension ever since.
10 So far as I am aware, her only significant source of income in at least the last decade and a half has been social assistance.
11 For many years, at least until 2008, she was the caregiver for her youngest son who suffers with a severe mental illness. It would be completely understandable that the burden of that role would weigh very heavily upon her. The high levels of stress in her life are a reasonably constant theme at periods reflected in her GP's consultation notes.
12 She has for many years relied on the government agency HomesWest for accommodation for her and her son.
13 The left shoulder injury continued to trouble her after the surgery. In a consultation in December 1999 with a general practitioner, Dr Hall, she presented with a spasm in her left trapezius muscle. She is recorded as telling him that she had had 'radiation treatment' for a rotator cuff problem, after 'two failed operations'. At the same time she reported 'neck headaches for 20 years, on and off'. This she said was usually treated with Panadeine Forte and acupuncture. The consultation notes over subsequent years show frequent references to neck pain, shoulder pain and lower back pain. There are references to her asking for and receiving prescriptions for Panadeine Forte. On one occasion at least, in February 2001, a GP who saw her declined to give her that prescription, referring her to her 'own Doctor' for that.
14 In July 2001 she was sufficiently troubled by her lower back complaints that she was referred for an x-ray of the lumbar spine.
15 In December 2002 she fell and injured her back. She said she stepped onto the edge of a small soakwell in a house provided to her by the Department of Housing and Works. The edge apparently subsided. A seeming consequence of that fall was that on various occasions in 2003 and 2004 the plaintiff reported to her orthopaedic surgeon that she had 'developed central low back pain', with pain in her lower limbs and left hip that woke her up at night. She also complained of pain in her neck, and her right hip and lateral thigh with numbness.
16 This accident led to a claim by the plaintiff against the Department of Housing and Works. I am satisfied that is the case despite the fact that the plaintiff denied that she had ever taken legal action against the Department of Housing and Works. In the District Court action she brought she was served with interrogatories. Her sworn answers to those interrogatories became an exhibit in this trial. On 19 September 2005 the plaintiff swore that the 2002 soakwell accident had caused, 'ongoing pain in the lower back and coccyx region, pain radiating in the hip region and down in the left leg and numbness radiating in the anterior region of the right leg … Soreness in the neck and shoulders associated with headaches'. Her answer goes on to list the activities which she said she was restricted from engaging in because of the injuries from the 2002 accident. It is a lengthy list that would have precluded her from virtually all even moderately strenuous household or recreational activities. She described the symptoms as 'ongoing'.
17 In her evidence before me the plaintiff initially accepted that that was indeed the position in September 2005. As she became aware of other evidence I will refer to, she sought to disavow the answers to the interrogatories, suggesting that she, 'probably didn't even read it … to tell you the truth'. Her efforts in cross-examination to explain what exactly she was or was not able to do at this time by way of recreational activities did not clarify the position.
18 In answer to an interrogatory as to whether since the injuries occurred the plaintiff had done anything which had aggravated the symptoms experienced, she answered, in September 2005, 'no'. This, as will be seen, had the potential to mislead.
19 In 2003 the plaintiff underwent laparoscopic surgery to have a band placed around her oesophagus. According to her GP's notes, this helped her lose '5 stone'.
20 On 1 April 2004 the plaintiff reported to her GP that she 'remains the same … Went to LA and was in hospital for three days for her sx…'.
21 The plaintiff had been referred to Mr Soni Narula, a consultant neurosurgeon in September 2003 because of her ongoing low back pain after her soakwell accident. After various examinations, including an MRI scan, he observed in November 2003 that the plaintiff's symptoms were '…far out of keeping with the MRI scan findings'. In a further letter to the plaintiff's GP following a consultation on 26 March 2004, Mr Narula recorded that the plaintiff had told him that on a holiday to Los Angeles she '… was in hospital for three days because of her sx'. In this context I interpret 'sx' as 'symptoms'.
22 Cross-examination did not yield any coherent explanation of this event, the Los Angeles trip, from the plaintiff.
23 In October 2004 the plaintiff was a passenger in a car involved in a shunting type accident. She suffered an injury to her left shoulder. A claim for damages arising from this accident was advanced on the plaintiff's behalf by her solicitors in the action against the Department of Housing and Works, Friedman, Lurie and Singh.
24 Throughout 2004, before and after her motor vehicle accident, her GP's notes show that the plaintiff was continuing to complain of pain in her lower limbs and left hip, across the lower back and in her left shoulder. In September 2004 she was considering a suggested spinal fusion procedure. In November 2004 she told her GP, Dr Rigby, that the slight pain in her left shoulder that she initially experienced had increased in severity and continued to be painful. This was the same shoulder that she told Dr Hall in December 1999 had required arthroscopic surgery 'approximately 17 years ago'. She also complained to her GP of pain in this shoulder in October 2000 and January 2001, but in November 2004 she told her doctor, 'following the arthroscopy her shoulder has been asymptomatic'.
25 I should also observe that in May 2005 the plaintiff was examined by Dr Stephen Dennis, a consultant occupational physician, at the request of the Insurance Commission of Western Australia. The purpose was to assess the plaintiff in respect of the injuries she said she had received in the October 2004 motor vehicle accident. As Dr Dennis' report of May 2005 shows, the plaintiff was then complaining of pain in her lower back, neck and left shoulder area. In the course of that assessment the plaintiff told Dr Dennis that at the time of the motor vehicle accident she had no history of significant back problems and that she was asymptomatic at the time of the motor vehicle accident. She did not mention the soakwell accident.
26 In an answer to interrogatories in this action she swore that in September 2004 she was recovering from the injuries caused by the 2002 soakwell accident that had left her with recurring lower back pain, hip pain and numbness from her right thigh to the knee. The 2004 motor vehicle accident, she swore, had aggravated those injuries. There is an obvious conflict between her sworn answers in the September 2005 interrogatories in the soakwell accident action, the history given to Dr Dennis, and her answers to interrogatories in this action.
27 In late December 2004 however she told her GP that her symptoms had improved slightly with physiotherapy and she was leaving to go to the United States in January, for a two week study course. Her doctor advised against that but she determined to go anyway.
28 On 7 February 2005 Dr Rigby saw the plaintiff and recorded this consultation note, 'Has returned from the USA-states it wasn't too bad - did take about four days to get over the return trip'. Dr Rigby notes the plaintiff's complaint that her pains were getting worse but records his observation 'neck movements are quite reasonable'.
29 The plaintiff's evidence was that on this trip to California she attended 'Academy Award nominated (Titanic) Hollywood makeup artist Tina Earnshaw's fashion and beauty makeup classes for film, television and print'. Two documents, each titled 'Certificate of Achievement', were tendered into evidence by the plaintiff. They are on what appears to be a pre-printed stationer's form of some kind. The form has been completed by hand printing in the plaintiff's name, the course descriptions 'Period Beauty Makeup' and 'Beauty and Fashion MakeUp' and the fact that each has been given at 'Tina Earnshaw's School of Makeup' on 20 January 2005. An advertising card for Ms Earnshaw shows that the courses were offered in 2005 for US $2,500, each.
30 At this time the plaintiff had not settled either of her personal injuries claims. She was living in subsidized housing and receiving a disability and carer's pension. Assuming it to be the case that she made this trip, a number of interesting questions are raised. None of these were explored at the trial however.
31 On 21 December 2005 the plaintiff settled her claim against the Department of Housing and Works for a total of $20,000 plus $9,000 for legal costs. Despite being shown the Deed of Settlement bearing her name, the plaintiff maintained that she had no recollection of the settlement. For some time she denied any knowledge of the litigation, until part way through the trial when she said that she had found a letter from her solicitors.
32 On 25 January 2006 the plaintiff's lawyers wrote to the Insurance Commission of Western Australia setting out the nature of the plaintiff's claim and seeking damages of some $57,000 on her behalf for the motor vehicle accident. Among other things the letter claimed that, following this motor vehicle accident, her general practitioner was of the opinion that the accident had aggravated her left shoulder problem and lower back problem and that she sustained soft tissue injuries and aggravation of pre-existing degenerative changes in the lumbar spine. By this time the fact of the plaintiff's 2002 accident had been discovered. It had been revealed by the discovery of her GP's medical file which was then reviewed by Dr Dennis.
33 The January 2006 letter refers to a 27 November 2005 review by Dr Dennis where the plaintiff was 'still tender in her neck and back' and, 'throughout the lumbar sacral spine and tenderness over the buttock muscles. She was tender in the sacroiliac joints bilaterally'. Understandably perhaps, the letter omits any reference to Dr Dennis' finding that '… the severity of the symptoms she describes does not appear to be fully consistent with her presentation'. It is in fact reasonably common for the notes of surgeons or physicians who have examined the plaintiff to record an incongruity between the plaintiff's complaints and her observable behaviour.
34 The symptoms included constant neck pain 'depending on activity', intermittent ongoing pain in the upper dorsal spine area and constant lower back pain, discomfort in the left knee when kneeling, 'and at times the knee swells', and among other things, 'constant neck pain radiating into the back of the neck and pain in the left greater hip'. 'Ongoing back pain' is said to arise from prolonged sitting and bending. All this is said to have resulted in considerable loss of enjoyment of life with an inability to do many activities that she had previously done. It was said that the motor vehicle accident had caused her intake of alcohol to increase to relieve the back pain.
35 Put shortly, the complaints that were advanced as caused by the 2004 motor vehicle accident were largely the same as those advanced in the action against the Department of Housing and Works. That is despite the fact that in September 2005 the plaintiff swore that she had done nothing that had aggravated the 2002 soakwell accident injuries, and told Dr Dennis in May 2005 that she had been symptom free at the time of the October 2004 motor vehicle accident.
36 In her solicitor's' letter it is said of the plaintiff, 'she used to be a very active person and she is currently living an isolated lifestyle'. This I note was said to be the plaintiff's condition less than a year after she had received her 'Certificates of Achievement … In recognition of distinguished achievement' from Ms Earnshaw's Academy in Marina Del Rey, California. According to her evidence at trial, 2005 was a good year for the plaintiff. It was the year of her trip to the USA and the time she resumed playing pennant tennis, three times a week. As will be seen later, she is said to be living this 'isolated lifestyle' just three months before her GP records the successful developments of her love life.
37 This motor vehicle accident claim was ultimately settled by a payment to the plaintiff of about $25,000 in February 2006.
38 Most unusually, there are no notes of any consultation with her GP between 16 December 2005 and 28 February 2006. I say 'unusually' because between 2000 and 2005 she was frequently attending her doctor. Quite apart from the historic, chronic, and allegedly recent musculoskeletal problems, and her requests for referrals to various specialists, she presented in that time with an extraordinary list of complaints. Putting aside understandable stress and depression because of her domestic circumstances, the consultation notes of her GP for this period record attendances for complaints described as impetigo, vertigo, nasal sores, vomiting, pharyngitis, ankle oedema, sore ears, a claimed (though not observed) sudden increase in the size of one breast, recurrent skin sores, pain above one breast, itchy ears, follicular cysts, dermatitis, hoarseness and loss of her voice, and a constant runny nose, to mention some.
39 This period where she was not frequently seeking attention from her GP appears to coincide with the time when she had had access to extra funds from personal injury claim settlements. This trouble-free time was not to continue however.
40 On 1 March 2006 she returned to her GP to renew her prescription for antidepressants. On 21 April she again returned for a prescription for Pariet, a drug to reduce the production of stomach acid and relieve symptoms of acid reflux. On 1 May she attended to complain about a constant nasal discharge of several months duration and being 'headachey - wakes up feeling thick in the head' and being lethargic. Apart from that, Dr Rigby has recorded 'Patient does actually feel pretty good at present - has two men in her live [sic] at the moment…'. A number of blood tests were ordered, and drugs were prescribed for what was apparently a nasal infection.
41 Between 29 June and 26 August the plaintiff attended her GP five times. Most visits related to the continuing problem with her nasal passages and other relatively routine issues.
42 On 2 September 2006 the plaintiff reported to the police that she had been a victim of a burglary. On 7 and 14 September she attended the police station to provide details of her loss. She claimed that some $40,000 worth of jewellery had been stolen from the house provided to her by the Housing Commission. She gave police a 20 page statement that concluded with the usual declaration as to its truth, and the plaintiff's knowledge that she would be guilty of a crime if she had wilfully included anything she knew to be false. On 15 September she made a claim on her insurer for the 'stolen' jewellery, valued at $40,000. Her claim was false. Her fraud or her attempted fraud was quickly discovered.
43 On 1 October 2006 she attempted suicide by taking an overdose of prescription medication. She was hospitalised for nine days. On 4 October 2006 she was charged with two serious criminal offences. She was released from the Bunbury Regional Hospital to be allowed to attend court on 6 October 2006.
44 After her release from hospital she attended Dr Rigby on 13 October 2006. In what is described as a 'long consult' Dr Rigby records a discussion that he had with the plaintiff following her release from the hospital after her suicide attempt. He refers to a
long discussion about patient's frustration with having to be the carer for her son who has schizophrenia … Patient blames her son's mental illness on her husband … Patient feels that her life is on hold because of her son – can [sic] get any help while living in Bunbury – her ex-husband doesn't want anything to do with looking after his son – feels her career is being jeopardized because of her son – she feels bitter, cheated … Her other two children she describes as been [sic] self-centred – her male companion in Perth apparently doesn't want anything to do with her since she has tried to commit suicide – patient is very angry at the lack of treatment available in the psych unit at BRH – states that she had no contact with any of the staff or doctors – they didn't seem to be interested in her well-being – her son can't get into appropriate accommodation until end of next year.
45 These complaints of the plaintiff with respect to her treatment at Bunbury Regional Hospital appear to be unjustified and unfair. Some 88 pages of records and notes for the nine days of her hospitalization were tendered into evidence.
46 In a consultation on 20 October 2006 the plaintiff again raised the extent of the stress in her life and told Dr Rigby of a number of matters which if true would give rise to stress.
47 On 24 October 2006 the plaintiff somehow fell from the tyre activity in the accident that is the subject of this litigation. According to the plaintiff, from that time she has suffered with a number of health problems she says are the consequence of injuries suffered in that fall. I will describe her complaints in more detail later in these reasons, but it will be seen that many of them came to closely resemble the same kinds of complaints made as a result of the 2002 and 2004 accidents.
48 In a consultation on 24 October 2006 she told Dr Rigby that she had fallen backwards from a suspended tyre, landing on her head and injuring her left scapular region, her left knee and her left middle finger. In early December of 2006 the plaintiff complained about pain in her back, neck and left hip. CT scans of her neck did not detect any abnormality. At the same time she complained to her GP of these matters, she had another problem with infected sores in her nose. These she said had somehow occurred while working on a 'film shoot' in fields near Perth. In her evidence before me she told me that was part of six or eight week period in which she was engaged in on a film called 'The Eleventh Soldier'. The actual amount of work involved seems to have been limited to a weekend or some weekends in that period.
49 In December of 2006 and January 2007 the plaintiff was in a new relationship with a new partner. According to a note made by her GP she had been 'travelling and visiting friends and relatives' with him. She had lost weight walking and cycling. Unfortunately while on a visit to Rottnest Island she fell from her bicycle and grazed her left elbow, and her left knee. They became infected and required treatment.
50 Her claimed film work and recreational and social activities from November 2006 would seem to be inconsistent with any significant injury arising from a fall in October 2006.
51 In February 2007 the plaintiff appeared before the District Court and pleaded guilty to one offence of falsely reporting criminal offences with intent to create a false belief, and one offence of with intent to defraud, by deceit or fraudulent means attempting to gain a benefit by fraud. She received a total effective sentence of 12 months imprisonment suspended for 18 months. Her counsel filed a lengthy statement from her that was relied on in mitigation. It was signed by the plaintiff and dated 17 January 2007.
52 The statement recounts at great length the circumstances of her two marriages and the alleged abuse of various kinds that the plaintiff said she suffered in those relationships. It describes the terrible circumstances of the condition of her younger son. His medication she said made him 'zombie like'. She said he 'makes a mess around the house. He is incontinent and wets his bed. I care for him: it takes a lot of time and is very draining. He is now 26. I have a carer's allowance and I am also on a disability pension myself because I have had long term depression'. She refers to 'having suffered injuries in two motor vehicle accidents, one when I was 15, the second after I was first married'. I note that neither of these is obviously the 2004 accident, although one may be.
53 She summarizes her mental state in these terms,
my mind is constantly occupied by the abuse I have suffered at the hands of both husbands … And I think about what happened to (her son) and the condition he is in. There are only two times I am able to get out of the grip of this obsessive round of thinking, first when I am on the set of a film doing makeup and secondly when I'm shopping. I am a freelance make-up artist. I worked for three weeks on the set of the film 'Last Train to Fremantle'. Unfortunately I was unable to complete the assignment because after three weeks my back hurt very badly. This is part of the aftermath of my car accidents. I am presently working on a film being shot in WA in which Sam Neill is involved ... The makeup work is very irregular and is not a regular source of income.
54 She refers to the fact that she had been attending the NOW program, before attempting to defraud the insurance company. She describes it as, 'a program designed to help women who have suffered abuse especially by helping to get into or back into the workforce'. As will be seen, this is not in fact correct, or no more than half correct. She describes group sessions four days a week which took five hours each,
At these sessions there were women talking about very distressing matters including about the murder of their husbands. This distressed me more than I was already. There was no proper counselling … I told the counsellors there how distressed I was about seeing the advertisement for the sale of (the former matrimonial home) … They gave me no help. I just continued these hair-raising group therapy sessions.
55 As will be seen, this substantially misrepresents the nature of the NOW program.
56 The plaintiff describes the reasons behind her suicide attempt in a way that was much different from what she said in her evidence before me. She said, 'People have suggested that it was the guilt of the insurance fraud that led me to attempt suicide. To be frank that is not so. It was the weight of the treatment of me by my husbands and the state that (my son) is in and the burden of looking after him. The fraud was the last straw'.
57 There is also a reference to the plaintiff's drinking problem. 'About two years ago I was convicted of driving under the influence of alcohol. I only took up drinking three years ago. Leading up to my suicide attempt I was an alcoholic. Now I drink moderately'.
58 In March of 2007 the plaintiff asked her GP for a letter to say that she could attend a gym for her hypotension. In the course of that consultation there was a long discussion about the plaintiff's drinking. Contrary to what the District Court had been told a month before it was noted that 'she continues to binge drink and she said that she would drink until she dropped'. She said however that she wanted to stop. Her doctor noted that she was 'living in the high life' and that she had said that she was going to 'Caines', presumably Cannes, for the film festival.
59 By this time the plaintiff had had for many years a problem of complaints with leg, hip and lower back pain. In October 2007 for the first time, she told her GP that pain had been, 'a lot worse since her fall last year'.
60 On March 2008 she presented to her GP with a lacerated right upper forehead. This she told her doctor occurred the previous Sunday when she was doing a workout in a gym in Perth. By 27 March 2008 her doctor notes that the wound 'on her right forehead had become infected and has actually split'. Her doctor noted that she was 'now requesting injections into the occipital prominence because the knock to her head when she sustained a laceration has stirred up her neck'.
61 In August 2008 the plaintiff presented to her GP saying that she had recently been punched in the face by another woman. She said that the other woman had thought that the plaintiff had been 'forward' towards the woman's husband.
62 In 2009 the plaintiff was referred to Dr John Salmon a specialist in pain management. Dr Salmon's appreciation of the purpose of the referral was that the plaintiff was suffering with 'widespread persistent pain following her accident in 2006'. Dr Salmon is one of a limited number of specialist doctors in this State who utilize a cervical spinal cord stimulation system implant for the treatment of certain types of chronic pain. Prior to her first consultation with him the plaintiff completed a questionnaire with respect to her pain and other symptoms. She describes her occupation/job 'pre-injury' as 'producer/makeup artist'. Her current work status she describes as 'none'. Under the heading 'pain history' she explains that her pain started 'straightaway 24 October 06'. In answer to the further question 'when did your current episode of pain start' she provides the same date. Nothing is disclosed in the questionnaire that would even hint at a lengthy history of neck, back, and leg pain prior to October 2006.
63 Dr Salmon determined to implant the spinal cord stimulator and did so towards the end of 2009. In his evidence before me he explained the nature of the operation that was performed. Based on what the plaintiff told him afterwards he concluded that the plaintiff benefited by a reduction of pain of 'more than 50%' and a reduced requirement for medication and an increased activity capacity. He concluded that it had, 'a markedly improved analgesic effect over the whole of her left side of her body where she had pain symptoms'. He acknowledged in his evidence before me that 'she's not symptom-free, and she has ongoing problems with her voice and breathing issues…'. The reported improvement in the plaintiff's pain he attributed to the fact that that pain had been 'nerve pain' that being the only thing for which the spinal cord stimulator implant is effective.
64 That conclusion was somewhat put into doubt by a report Dr Salmon made to the plaintiff's GP in February 2013 about a problem the plaintiff had encountered with her implant system. He said, 'her implanted spinal cervical cord stimulation system has been assessed and the battery has died from lack of regular charging which implies that she was not using it regularly for a period before that. It has been difficult to discern the efficacy of the stimulator with all the other symptoms that have continued and I have concerns about replacing a $20,000 battery in this setting'.
65 In fact the spinal cord stimulator system had not been working then for about seven months. Even before that, Dr Geoffrey Gee, a consultant in pain management, recorded following his examination of the plaintiff in May 2011 that the plaintiff's use of the stimulator had provided her with 'minimal improvement'.
66 Dr Salmon went on to report difficulties that the plaintiff had encountered with some of her medication. He goes on to say, 'she's going for further review by Rob Edis neurologist concerning the possible role of any intracranial pathology in her persistent pain state … She's also due to have a left hip replacement in April and possibly a knee replacement. I've cautioned her that with her widespread neurogenic pain it is difficult to tell what pain is arthritic and what is neurogenic and therefore particular care needs to be made in assessing the role of invasive surgeries'.
67 In August 2011 the plaintiff consulted Dr Rigby because she was convinced that she had thread worms. She had taken multiple courses of an over the counter drug to treat that problem. She provided a stool sample for analysis which she told Dr Rigby, 'was packed with mucus and worms'. Dr Rigby records that the faeces sample 'revealed NIL'. She was confronted with the objective fact that despite her concern about the presence of worms she had actually put on weight. Dr Rigby records this rationalization, 'states that the worms have eaten her lap band'. He notes, 'patient is really upset – states the laboratory is wrong'.
68 In January 2012 the plaintiff fell on her left hip with sufficient force to cause her pain or discomfort for some months. Later that year she received an artificial hip replacement.
69 In May 2012 she made another suicide attempt.
70 What is set out above is a very brief summary of the medical attention sought by the plaintiff between 2000 and 2012 and some related events. Her medical issues were only a small part of the plaintiff's life problems in this time.
71 According to the plaintiff, she has been spectacularly unlucky in some of her personal relationships. She implicates in or accuses her two ex-husbands of very serious crimes. I do not propose to repeat those accusations here other than to say that the most extraordinary accusation she makes, implicating one husband in particularly serious criminal acts, is not supported by anything that could reasonably generate such suspicion.
72 Regrettably, as I have described, one of her sons, now an adult has suffered for many years with schizophrenia.
73 According to the plaintiff however, there have been a number of positive aspects to her life, in particular her achievements in theatre and cinema. The plaintiff tendered into evidence two booklets of clippings. Many of the clippings came from publications such as the Bunbury Mail, the Collie Mail, the Busselton/Dunsborough Mail, the Bunbury Herald and the Harvey Australind Reporter. There is also an article in the Weekend Magazine of the West Australian newspaper, based on an interview with the plaintiff. The article is not dated but refers to a film project she is to be involved in 'next week' called 'The Bouncer'… starring John Waters'. This project was referred to in her 2007 statement to the District Court.
74 The magazine article commences in this way:
Every year at Oscar time, Johnny Depp looks for a new hat … Liz Hurley tries to find new body parts to reveal, and Bunbury mum Victoria Reid packs her bags for her biggest day's work of the year.
Reid is a make-up artist. For the past six years she has been part of an elite corps which powders and paints famous faces for Hollywood's biggest splash.
75 Some of the clippings relate to make-up workshops that the plaintiff has offered to the public, most commonly to school children. Many of the clipped stories bear the similarity of press releases. Most refer to 'Victoria Reid, a highly accomplished make-up artist who has trained in Los Angeles, New York and London'. There are some articles from 2003 that assert that the plaintiff has trained in these places.
76 There is an advertisement where the plaintiff offers to do make up for weddings. There are photographs where the plaintiff can be seen with groups of school girls doing demonstrations of graphic 'horror' make up, including bleeding wounds and scars. There are some photographs with people identified as celebrities, and numerous photographs which it appears to be suggested are examples of the plaintiff's make-up work.
77 The plaintiff was seen twice by a consultant psychiatrist Dr Gemma Edwards-Smith for the preparation of independent medical reports in connection with this action. Dr Edwards-Smith took a history from the plaintiff. Some of the flavour of that is set out in Dr Edwards-Smith's report of 10 February 2014,
… she told me that four international celebrities are coming to the trial by video-link, that the court has given permission; these including Robert Downy Jnr, Morgan Freeman, Julia Roberts and James Franco. She said that they will say that they would employ her as a makeup artist. She did not have any written communication but said that they had indicated this to her on the telephone and she had personal assurances from them. She said that she met Julia Roberts as she had done her wedding dress when she was going to marry Kiefer Sutherland. At the time she said she was working for Richard Tyler and had also done her [sic] makeup at the Oscars when Ms Roberts was pregnant. She said that she had done Robert Downey Jnr's makeup for the Oscars over a number of years and last spoken to him four weeks ago. She said that she also knew Morgan Freeman and James Franco from the Oscars and she had last gone to the Oscar ceremony in 2005.
78 None of this reported history, that is the history said to have been given by the plaintiff, was challenged by the plaintiff when Dr Edwards-Smith gave evidence.
79 In fact both Morgan Freeman and James Franco were included on the plaintiff's witness list for trial. I was told however at the commencement of the trial that they would not be giving evidence 'because the video-link was stopped'. That is, I was told that a number of 'celebrities' who were prepared to give evidence by video-link would not be giving evidence, 'because it got stonewalled'.
80 As best as I was ever able to understand from what was said by the plaintiff in one pre-trial hearing and at the trial, the plaintiff had sought an order that certain witnesses be allowed to give evidence by video-link. These witnesses included people associated with the motion picture industry. Some doubt was expressed by the defendants that these people would give evidence if in fact a video-link was arranged. A pre-condition to the making of an order was imposed by way of a requirement for some proof in writing of the witnesses' willingness or intention to give evidence. The condition was never satisfied and no order for witnesses by video-link was ever made. No 'celebrities' gave evidence at the trial.
81 The only evidence of any paid employment of the plaintiff of any kind consisted of a 2005 ATO Refund Notice and a pay slip from a company called 'Long Way Films Pty Ltd'. The Refund Notice showed that for the year ending 30 June 2005 the plaintiff had earned a gross amount of $2,545.
82 The pay slip is dated 10 April 2005. It records that the plaintiff had been engaged as a 'make-up artiste' at a rate of $30 per hour. For the period covered by the slip, the week ending 10 April 2005, she was paid $174.93 for holiday pay. Her total income with this employer was $2,274.93.
83 On 11 April 2005 Dr Rigby recorded this in a consultation note:
Has been working for the last 3 weeks in Perth on a movie set - having to work in a confined space- bending over and has developed severe pain- low back pain (the worse), neck and shoulder pain and headaches … Has also developed severe diarrhoea and this has put her off the set so that the actors don't get unwell- But doesn't feel she can go back to work because of her back pain…Wanted to document her back pain.
84 At one point in her evidence the plaintiff asserted that a job had been open to her in the management of a fitness studio or gym, but for the injuries she suffered from the fall on 24 October 2006. I do not accept that evidence.
85 It is difficult to reach any view about the plaintiff's claims of an association with stage and film production prior to 1995 when she began to receive a disability pension. In my view, whatever association she has had she has much exaggerated. Over the years since 1995 she may have earned some modest amount from make-up workshops and the like. She had some casual involvement in some modest and limited film projects in 2005 and 2006. Only one of these it seems offered payment.
86 The plaintiff may well have had the ability to take on occasional casual work. I am satisfied however that the plaintiff has not had and has not been capable of regular paid employment since about 1996.
New Opportunities for Women
87 The Southwest Regional College of TAFE is commonly known as the Bunbury TAFE. For some years it has offered a program called 'New Opportunities for Women' or 'NOW'. The program is designed to help older women who have been out of the workforce to prepare to return to work. The course operated three to three and a half days per week. The class size is now and was then normally of the order 12 to 14 participants.
88 In 2005 Ms Sabrina Haines took a position at the Bunbury TAFE. She was engaged as a lecturer. Her duties included instructing in the NOW program. In 2006 the class that she took included the plaintiff.
89 On one or two prior occasions with her NOW students Ms Haines had organised and taken part in an excursion to the MAC as a 'team building' exercise for her class. She got permission to do so again for the plaintiff's class.
90 The excursion was planned for 24 October 2006.
The consent/disclaimer/undertaking form
91 One of the red herrings (of a moderate sized shoal) that occupied much time at the trial involved the circumstances surrounding the completion of a form by the NOW students with respect to their attendance at the MAC. The form was called variously 'the disclaimer' (by the plaintiff) and 'the consent form' (by counsel for the defendants). In the context of this case, involving adult students on a day trip, it was neither. The form was nothing more than an undertaking by each student to abide by certain rules and an advice that students should have personal accident cover insurance for the excursion/camp. As a matter of law it could not have been relied on by either defendant as an exclusion of liability, and it was not. I mention it here only because of the significance it assumed for the central matter in issue in the trial, the credibility of the plaintiff.
92 The plaintiff in her evidence said that this form, which was tendered into evidence as an exhibit, was only produced to the students for execution by Sabrina Haines many days after the trip to the Camp and the plaintiff's fall. The plaintiff asserted that Ms Haines admitted to the class that she should have had it signed and submitted before the Camp trip. The plaintiff said that she did not want to sign it but
… unfortunately I was threatened by a couple of the students with that motion where you slit your throat and being told 'Nothing better happen to Sabrina'. I then – we all then signed it, handed it in.
93 The plaintiff said that while the class members were signing the form, a counsellor connected with the school, Ms Merritt, came into the class and in effect 'caught' Ms Haines doing this. The plaintiff gave evidence that Ms Haines then said, 'Oh I've been caught. I've been caught out.' or words to that effect.
94 Ms Haines said that these forms were required as part of a protocol she was required to follow to get her manager's approval for the trip. The manager required these, among other forms, before the manager would sign off as approving the excursion. Ms Haines said she printed out forms for the students from the college system prior to the excursion. She thought that she did that either in the days before the Camp or on the day. I note that the form signed by the plaintiff bears a date of printing of 24 October 2010.
95 Ms Haines gave evidence that she was required to have the forms signed before excursions from the college and she did so here. Like the plaintiff's fellow former students who were pressed by the plaintiff on this point, Ms Haines reacted with genuine bewilderment to the proposition that the forms were signed days afterwards, accompanied by some guilty confession on her part in the presence of Ms Merritt. Ms Merritt was similarly bemused by the suggestion.
96 I find that the forms were in fact signed on the morning of the departure for the excursion. The version of events created by the plaintiff about these events is false.
The MAC
97 The MAC is a recreation facility constructed on the site of a former logging camp or settlement. For some years the second defendant has used the Camp to provide a range of about 30 activities such as horse riding, bush skills, rafting and canoeing, abseiling, and high, medium and low rope activities. The activities are offered to everyone from children to adults, and to people with differing ranges of fitness, including people with disabilities. Trained instructors are provided for the groups that attend. They offer instruction in the activities, supervise, ensure that the activities are carried out safely, and provide first aid in the event of an accident.
98 The 'Standard Operating Procedures' manual, tendered into evidence at the trial, describes the Camp's adventure activities as 'primarily designed to introduce clients to activities/sports that they may not otherwise find the opportunity to attempt safely. MAC does not impart/teach technical skills to participants and all activities are designed and constantly modified to increase safety and remove the possibility of creating this impression. MAC activities are strictly experiential, and clients wishing to pursue technical aspects of these activities should attend the appropriate courses/training centre'.
99 The idea behind the Camp is obviously to provide what might be called 'soft adventure' to a range of people with a range of physical abilities, to provide opportunities for individuals to build confidence, and for groups to develop cohesion. No technical skills are required beyond those that can be demonstrated prior to the activity. Participants are intended to be challenged, but not put at significant risk beyond the possibility of scrapes, bruises, and sprains. There is no evidence of any history of serious injuries although the manual plainly anticipates a risk of injury and instructors are equipped with first aid kits.
The excursion
100 On the morning of 24 October 2006 Ms Haines' class travelled from the Bunbury TAFE campus in a bus that had been organised.
101 The plaintiff said in her evidence that in fact she did not want to go on this trip. She says that her teacher, Ms Haines, knew that the plaintiff had attempted suicide and as the plaintiff said, had 'just come out of Bunbury Psychiatric Hospital'. The plaintiff said that Ms Haines prevailed upon her, telling her that she needed to participate in order to bond with some of the women in the course.
102 The allegation that the plaintiff was bullied by the other students in her NOW class was the starting point of an elaborate line of reasoning. The apparent purpose of this line of reasoning was ultimately to remove any responsibility from the plaintiff for the unfortunate circumstances of her life in 2006, and to portray her as someone who was helpless and unable to make even a decision as simple as to whether she should take part in the activities at the MAC. Although not pleaded, it served to try to answer an obvious defence raised by both defendants. That is, that in addition to appropriate risk warnings given to the plaintiff, the risk of falling off a tyre swing and onto the ground was obvious to a reasonable person in the plaintiff's position. The plaintiff's convoluted process of reasoning was to this effect:
• Students were required to relive and share traumatic experiences in their classes in the NOW program.
• This caused considerable stress and anxiety among all the participants including the plaintiff.
• A number of the NOW participants were 'tough', difficult and dangerous women of a type, and perhaps a class, different to that of the plaintiff.
• In this environment the other students or a number of them took a set against the plaintiff that lead them to, among other things, threaten the plaintiff with physical violence.
• Such was the stress created by the bullying, that the plaintiff suffered mentally to the extent that she acted irrationally, to the point where she made a suicide attempt on 1 October 2006.
• The plaintiff was discharged from hospital following her suicide attempt on 10 October, still in a state of confusion from the drugs taken in her suicide attempt and the medications prescribed during her hospital stay.
• She was still mentally unwell on her return to class, and still affected by the medication on 24 October 2006.
• All or most of the facts above were known to Ms Haines who still compelled the plaintiff to take part in the activities at the MAC.
• It was for that reason that the plaintiff unwisely and against her judgement, to the extent that she was capable of exercising any, agreed to take part in the tyre activity.
103 Apart from the fact that a number of her class mates found her annoying and may well have expressed that, there is no evidence that could support any of the facts set out above. Indeed the evidence at trial, much of it elicited by the plaintiff herself, demonstrated that these allegations were patently untrue.
104 Although she was hospitalised following a suicide attempt, the plaintiff's statements both to her treating doctor in October 2006, and indeed to the District Court sitting in Bunbury in February 2007, say nothing about any issue of bullying by her classmates.
105 According to Dr Main, the psychiatrist who saw her when she was hospitalised, she recovered, 'quite quickly'. Care was taken to ensure that she was not discharged with medications that might be problematic or misused. The fact that the plaintiff might have taken part in activities at the MAC two weeks after discharge was not something that Dr Main regarded as 'necessarily inappropriate or unsafe'.
106 Much time and print could be spent in highlighting the other abundant evidence that proved the falsity of the plaintiff's claims about these matters, but it is sufficient for present purposes to say that when the plaintiff was discharged from hospital she was not under the influence of any drug that could affect her judgement. I am satisfied that Ms Haines was not aware of the plaintiff's suicide attempt or hospitalisation. I find that the plaintiff was capable of making rational decisions on 24 October 2006 and was not affected by anything that would have affected her motor skills or coordination.
Arrival at the MAC
107 Given the passage of time, it is unsurprising that the memories of those present at the MAC on the day that the plaintiff had her fall have faded. That most of those witnesses who gave evidence about the events of 24 October 2006 struggled to recall details is also explained however by the seeming unimportance of most of the events of that day, and in particular the lack of anything especially remarkable involving the plaintiff.
108 These are my findings about the events of that day, based on the evidence that I do accept from those witnesses at trial who were either present at the MAC on 24 October 2006, or were former MAC employees.
109 When the plaintiff and about nine other members of her NOW class arrived at the MAC they were greeted by Ms Christine Bamess. Ms Bamess was an 'Adventure trainer' employed by the second defendant between 2004 and 2006. She then held a Senior First Aid certification and a bronze medallion in water safety training. She was hired in particular to assist with water related activities, but she received 'very thorough training' for each of the activities she was required to assist with. Before she was allowed to supervise an activity she was required to observe and demonstrate that activity at least three times, under experienced supervision by the police constables then running the camp, to show that she could perform the activity and demonstrate it properly. She also watched the activity being supervised by the three or four different senior instructors, with different groups of varying ability, to gain an appreciation of different instruction methods. She was required to be familiar with the Standard Operating Procedures contained in the second defendant's manual.
110 She remembered being asked to assist in October 2006 with a women's group from TAFE who wanted to use the 'low ropes' course. She recalled that the group's bus was about an hour late. That provided her with extra time to do the usual safety check of the area where activities were to take place. That involved checking beneath the activities to ensure that there was no broken glass or other objects coming up from the ground that might cause injury, and checking to make sure everything was in order for the low ropes course.
111 When the TAFE group got off the bus, she ran through the required introductory remarks. Consistently with the Standard Operating Procedures, Ms Bamess told the class that although the low ropes course appeared 'peaceful and calm' because the activities were low to the ground, 'if there's going to be problems - that's where it would be … people take risks because they think it's quite safe'. She gave a warning to take care, '… as an overenthusiastic or non-prudent attitude could result in minor injuries such as grazes or sprains'. Such a warning was no doubt well intentioned, as well as prudent, despite the fact that risks of that kind with the low rope activities would be patently obvious to any even slightly intelligent person.
112 As they went around the course Ms Bamess demonstrated each activity for the group, and showed them the correct way to use it. The women were encouraged by her to take part but they were made to understand that there was no compulsion, and they were free to sit out any particular activity they were not comfortable with.
113 The plaintiff in fact sat out the first activity, one that involved climbing over a low wall using a rope to ascend and descend. One student who took part in this, Clair Conroy, twisted her ankle coming down the wall. Ms Conroy acknowledged that this was her own fault, having disregarded an instruction to use the rope to control her descent.
114 With Ms Conroy's example before them, the rest of the class carried on. The tyre activity was the second or third activity of the low ropes.
115 The tyre activity consisted of a wire rope about 10 or 12 m long suspended between two large gum trees, with eight more wire ropes clamped at regular intervals to the main cable hanging towards the ground. There was an automobile tyre attached to the bottom of each vertical rope and suspended above the ground. The vertical wire ropes were covered with plastic hose.
116 In 2006 five steps with a handrail led up to a platform for the first tyre. The platform was at a level slightly above the top of the first tyre. When not in use, the bottom of each tyre was about 50 cm, or the height of a man's knee, off the ground. Someone standing in the tyre would be about 10cm higher allowing for the wall of the tyre. When in use, the central wire would sag under the weight, bringing the bottom of a tyre to within about 30 cm of the ground. That distance I note is consistent with particulars provided by the plaintiff prior to trial. One of the former NOW students who gave evidence said that she was easily able to step back up into the tyre when she came off onto the ground, even though she is just five feet tall.
117 The object of the tyre activity was for participants to climb onto the first tyre, stepping into the centre of it while holding onto the vertical wire. It seems that people with less physical strength or agility may have been allowed to sit on the tyres, but usually participants stood in the tyre, on the bottom inside edge. The NOW students stood in the tyres. The idea was then to cause the tyre to swing so that the next vertical wire, just out of reach when the tyres were stationary, could be grasped. The participant then shifted their feet into this next tyre while holding onto both vertical wires. They were encouraged to use the momentum from letting go the first tyre to both swing to the third tyre, and to cause the first tyre to swing back into the grasp of the next participant, and so on.
118 There was a conflict in the evidence as to whether participants in the plaintiff's group were instructed to step onto the top of the tyre or into the centre of the tyre. Ms Bamess recalled that participants were instructed to stand on top of the tyre. She said that was to provide greater stability. Every other witness who described the activity including the plaintiff said that participants stepped into the centre of the tyre. I conclude that Ms Bamess, whose association with the MAC ended some eight years before her evidence before me, was mistaken. There were dozens of activities that she was required to supervise and I conclude that the passage of time has likely caused some confusion.
119 First, it does not seem to me that standing on the top of the tyre would have in fact increased stability. The lower the participant stood on the tyre, the greater the stability would be. It also seems to me that it would be extremely difficult to get a tyre to swing while standing on the top of it, and somewhat less difficult with the feet lower on the tyre, because of the length of the pendulum involved. Finally, having seen the plaintiff give evidence, I have no doubt that she would not have minimised the height from which she fell.
120 Participants were given partners to 'spot' or look out for them, in part to encourage team building. Sometimes, and it appears not to have been the case here, the participants in a group would help each other with a push along. The plaintiff said that Claire Porter was her partner or 'spotter' for this activity.
121 It was not uncommon for people to fail to complete the tyre activity. They could get stuck by inertia; sometimes their arms would get tired. When that occurred Ms Bamess said they would generally dismount themselves by sliding off or stepping down onto the ground.
122 Wood chips or mulch, were spread under all the low ropes activities, including the tyre activity. In 2006 at least, sand was also mixed in.
The accident
123 According to the plaintiff Ms Bamess asked, prior to the tyre activity, whether anyone had a problem with their back. The plaintiff said that she told Ms Bamess 'yes' she had a 'coccyx problem' with her lower back. According to evidence given by the plaintiff in cross-examination, her coccyx problem was one of long-standing, resulting from the birth of one of her children. The plaintiff said however that it was not symptomatic in any way on 24 October 2006. The plaintiff said that Ms Haines then said to the plaintiff, 'oh no, you'll be all right' or words to that effect. Ms Bamess denied that any such thing had been said. I do not accept the plaintiff's evidence with respect to this alleged conversation.
124 The plaintiff says that because she 'didn't want to make a scene', because she 'wasn't well' and 'wasn't mentally able to work out what was a risk and what wasn't a risk', she took part in the activity. She was, she said,
…just doing as I was told, I was very vulnerable. So I went and I proceeded I think two or three of the tyres. And on the tyre that I fell from, my foot got stuck and I could not retrieve it. I lost – because of the momentum of being pushed from tyre to tyre so you can actually get from one to the other, you need to actually then prepare yourself so that you can get the rope and then put your feet onto the tyre. Well, my foot wouldn't come with me, so consequently I went headfirst to the ground. I heard the crack. Some of the students heard the crack. Sabrina Haines heard the crack. I don't know what cracked, but there was a crack and it was very loud. I lay there and then proceeded to get myself up which Ms Bamess has said for me to do which was the correct procedure. I got to my feet, I was very dazed, I felt really quite ill. Didn't want to draw any attention to myself, so I proceeded with the others to the next apparatus which is then when Claire Porter hurt her knee … The girls were all feeling a little bit nervous because of the now two injuries. I couldn't participate. I went and sat in the shelter shed on my own, very shaken, feeling very sick. (ts 55)
207 I find the plaintiff did not suffer an injury to her nose, head, or brain in the fall on 24 October 2006.
'Incompetent' larynx, paralysed vocal cord and stridor
208 The plaintiff called Dr Ganesh Rajan, an ear, nose, and throat surgeon. Dr Rajan is highly qualified in that field. He explained the problem that the plaintiff suffered, the main symptom being stridor and breathing difficulty associated with that, called dyspnoea. He explained that the cause of the problem was that the vocal cord on the left side was paralysed, leading to a narrowing of the airway in the voice box which explained the plaintiff's stridor, the sound while breathing, her problems in breathing, and also explained the reduction of her voice quality. All these things he attributed to the October 2006 accident. He supported that conclusion in this way, saying to her in his evidence-in-chief, 'considering the fact that you had a normal voice prior to the accident, and after the accident you have obviously a reduced voice quality and you had the symptoms of the stridor and dyspnoea, plus the findings when we examine you, we can see that the vocal cord paralysis has been there for a while … You can say that it's been long-standing paralysis'.
209 A common problem faced by the various doctors and surgeons consulted by or seen by the plaintiff, is that she frequently does not give an accurate history. Some of the doctors that she saw from 2007 onwards were unaware that she had any history of accident or injury prior to October 2006. Dr Rajan was obviously labouring under a belief created by the plaintiff that prior to October 2006 she had none of the symptoms that the doctor observed. That was simply not true. From at least 2002 the plaintiff's general practitioner's consultation notes referred to problems with her throat and voice. In October 2005 one note records, 'Chest nil obvious wheeze but does sound wheezy when talking'. A note recorded by Dr Rigby in November 2005 says, 'chest – marked expiratory wheeze throughout'.
210 When the plaintiff was admitted to Bunbury Regional Hospital following her suicide attempt on 1 October 2006, the admission notes record, among other things, 'hoarse voice'.
211 Dr Rigby's evidence was that when the plaintiff presented herself after her fall on 24 October 2006 there was no mention of throat problems. Three days later she began to complain of severe pain in her neck and head, saying that her throat felt swollen and bruised, and that she was having trouble breathing and swallowing. Having been her GP since January 2003, Dr Rigby told the plaintiff, in his evidence-in-chief, 'your voice has been the same as long as I've known you. From memory I haven't noticed any change in your voice'. In cross examination he said, 'As far as I can recall she has always had a husky voice'.
212 I do not accept that any of the throat or voice box problems experienced by the plaintiff were caused by the October 2006 fall.
Depression
213 I accept that the plaintiff suffers a major depressive illness. That depression was present at least 10 years before the October 2006 fall. I find that it is in no way attributable to the fall from the tyre activity.
Damages
214 I find that the plaintiff's fall on 24 October 2006 was not caused by any negligent act of the defendants. In any event I find that the plaintiff suffered no significant injury as a result of her fall from the tyre activity. Any injury she suffered amounted to no more than transient discomfort, capable of treatment by an ice pack and a short course of aspirin or Panadol. I am not satisfied that any of the special damages claimed by the plaintiff, with the possible exception of her attendance on her GP, are properly attributable to the October 2006 fall.
215 Had I been satisfied that either defendant had by their negligent act caused the plaintiff's fall from the tyre activity, in my view general damages in the amount of $200 would have been an adequate award for pain and suffering and loss of amenities of life.
216 In her particulars of loss the plaintiff claimed $258,000 for 'past loss of earning capacity' and $288,871 for future loss of earning capacity. These claims were based on an alleged potential to earn an average of $665 net per week, 'as a makeup artist for film, TV and theatre productions and photo shoots for printed media and TV commercial productions, teaching and running workshops for actors'. An alternative that was offered was based on an allegation that the plaintiff had been offered employment as a training manager in a health club, employed part-time 25 hours per week at $665 net per week.
217 I am not satisfied that the plaintiff had any capacity to earn the amount claimed as a 'make-up artist'. I am not satisfied that such work was available or that if it was she would have been capable of performing it on anything close to a regular basis. I am satisfied that the plaintiff's long-standing depression and other psychological issues rendered her unfit for any regular employment and that she had no measurable earning capacity. I accept that prior to the October 2006 fall she had the capacity for occasional casual work. Her capacity since October 2006 is neither less or more than what it was before that.
Result
218 It follows that the plaintiff's claim is dismissed. I will hear from the parties as to any consequential orders.
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