Smriko v Minister for Education for the State of Western Australia
[2011] WADC 151
•22 SEPTEMBER 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SMRIKO -v- MINISTER FOR EDUCATION FOR THE STATE OF WESTERN AUSTRALIA [2011] WADC 151
CORAM: BRADDOCK DCJ
HEARD: 10-13 & 16 AUGUST 2011
DELIVERED : 22 SEPTEMBER 2011
FILE NO/S: CIV 3346 of 2009
BETWEEN: SABINA SMRIKO
Plaintiff
AND
MINISTER FOR EDUCATION FOR THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Damages - Personal injury - Accident at school - Blow to head - Residual physical and psychological disabilities claimed - Credibility - Turns on own facts
Legislation:
Civil Liability Act 2002, s 10, s 10A
Result:
Plaintiff awarded total damages in the sum of $1,809.70
Representation:
Counsel:
Plaintiff: Mr K Pratt
Defendant: Ms B A Mangan
Solicitors:
Plaintiff: Rando Solicitors
Defendant: Spark Helmore Lawyers
Case(s) referred to in judgment(s):
Brown v Rodrigues (Unreported, WASC, Library No 970334, 3 July 1997)
Makita (Australia Pty Ltd) v Sprowles (2001) 52 NSWLR 705
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Tomlinson v Thomas, [1999] WADC 119
Woods v Director of Public Prosecution (WA) 38 WAR 217
BRADDOCK DCJ: The plaintiff claims damages from the defendant for an injury allegedly suffered by the plaintiff when she was struck on the head whilst swimming in the pool at the South Fremantle Senior High School on 10 November 2003. Liability is admitted on behalf of the defendant but the injuries sustained are not admitted. The defendant says that the nature and extent of the trauma in the accident were relatively minor. The defendant disputes that the plaintiff suffered or suffers headaches to any significant degree due to the incident on 10 November 2003. The defendant further alleged that any residual disabilities were caused or contributed to by pre‑existing conditions.
The pleadings
In the statement of claim, the plaintiff's injuries are particularised as (a) scalp contusion and, (b) soft tissue injury to the cervical spine. The residual disabilities are stated as follows:
PARTICULARS OF RESIDUAL DISABILITIES
(a)anxiety;
(b)depression;
(c)constant and severe headaches;
(d)neck pain;
(e)facial sinusitis;
(f)sleep disturbances;
(g)blurred vision;
(h)dizziness;
(i)Post Traumatic Stress Disorder;
(j)adjustment disorder;
(k)restriction in domestic activities;
(l)gross restriction in ability to undergo TAFE or university studies;
(m)gross restriction in employment activities; and
(n)gross restriction on sporting, social and recreational activities in particular swimming and running.
Particulars of pain and suffering are given as follows:
PARTICULARS OF PAIN AND SUFFERING
(a)Pain and suffering associated with the initial occurrence of the accident, giving rise to the injuries and prior to the commencement of treatment.
(b)Pain and suffering by reason of treatment of her injuries.
(c)Continuing pain and suffering by reason of the residual disabilities particularised above.
(d)Pain and suffering and the loss of enjoyment of life by virtue of the Plaintiff being deprived of the ability to participate in normal, social and recreational activities, to enjoy life to the full and to otherwise take full advantage of opportunities otherwise open to her, full particulars of which will be provided prior to Trial.
The plaintiff claims to have suffered a past loss of earnings and a loss of earning capacity. She seeks damages on a 'global' basis in a sum of $100,000 for past and future economic losses and travel expenses of $500. For past treatment costs of a sum of $12,406.35 is claimed, and a global sum of $10,000 for future treatment costs.
Circumstances of the accident
The plaintiff was born on 8 January 1990. In the year 2003 she attended Year 8 at the South Fremantle Senior School in Lefroy Road, South Fremantle. On 10 November 2003, at around noon, the plaintiff was involved in a physical education class during which she was swimming laps of the swimming pool. She was one of the last children getting out of the pool, at the conclusion of the lesson. It happened that there was a water polo goal that had been sitting on the edge of the pool. As she was swimming, the plaintiff was struck on the head by the water polo goal that had been accidentally dislodged by another child and toppled over onto her.
The blow pushed her under the water having hit her straight across the top of her head. It seems that she was able to get out of the pool, and checked her head to see whether it was bleeding. It was not. She was shocked by what had occurred.
According to the plaintiff, she returned to classes that day and completed the school day and returned home. When she got home she told her mother, who was concerned about the accident. The plaintiff said she had a headache that afternoon, but she did not tell her mother about a headache until the following day. When she did, appointments were made for her to see the doctor.
The plaintiff gave evidence that she had a headache and pain in the right side of her neck. Her mother could not get an early appointment and she saw the doctor a few days later.
It appears from the evidence that the plaintiff was able to return to school the following day. She first saw her general practitioner after the accident on 20 November 2003.
The plaintiff's personal circumstances
The plaintiff was a 13‑year‑old schoolgirl at the time of the incident, living at home with her family.
After the accident, she continued as a student at the South Fremantle Senior High School and completed Year 12 in 2007. Her school reports show that she was involved in general physical education in the subsequent years including swimming, softball, touch rugby, badminton, volleyball, dance and drama as well as the core curriculum subjects.
Part-time jobs
Whilst she was still at school, the plaintiff had several casual part‑time jobs. In 2004, she worked at Bakers Delight for six months, for seven to 10 hours per week. In 2004 and 2005, she was employed by Coles in Spearwood as a cashier on a part-time casual basis. In 2006 she was employed by 'Old Shanghai Sweets' in the Fremantle Markets, for a period of six to seven months, for various times on Thursday nights, Friday nights and Saturdays. In 2007, she tried one day's work at Anchor Foods. Also in 2007, she was re‑employed at Coles in Spearwood, as a delicatessen assistant for 15 – 20 hours per week, over a period of about four months. In late 2007, she was employed by a Liberty service station, part-time.
Sports
In 2004, she was the assistant coach of the Year 9 school soccer team. In that year and 2005 she participated in the inter‑school sports carnival. In 2006, she applied for and was offered a place in the Women's State Soccer team. In 2007, she was elected as a school councillor. Also in 2007, she was a registered soccer player with 'Football West', was the runner-up 'sports person of the year' at the South Fremantle Senior High School and participated in the inter‑school sports carnival. At the end of 2007, she received a drama award at the South Fremantle Senior High School. Upon leaving school, she joined the Warehouse Gym in South Fremantle and attended regularly.
In late February 2008, having finished school, she travelled to Bosnia with her family for an extended holiday, visiting relatives, returning on 24 May 2008.
Post education employment
The plaintiff commenced full-time employment at Port Realty an office involved in the sale of real estate in Fremantle in September of 2008, in the role of office 'all‑rounder'. She remained in that employment until the end of January 2009. In March 2009, she made an application to join the WA Police Service.
In April 2009, she commenced employment at Valley Girl, a clothing retailer, as a casual shop assistant for 10 – 20 hours per week and remained there for a period of six to eight months. In April, May and June 2009 she went through the process of the application for entry to the WA Police Service, including examinations, psychological evaluation, medical examination and interview. She passed the physical performance evaluation, but was not recruited, although she was considered an applicant 'with potential'. She was eligible to re‑apply, 12 months later.
In September of 2009 she secured a job with a company called Asset Focus, which commenced on 28 September 2009, a job involving the preparation of valuation reports for properties and the production of reports on them. In late 2009, she travelled to Malaysia on holiday, returning to Asset Focus and completing the year there. By the end of the year, a pay rise had been negotiated. Her employment with Asset Focus was terminated in early February 2010, in circumstances which I will return to later. During the year 2009, she prepared various resumes for the purpose of seeking employment in which she described her activities.
In February 2010 she commenced employment with a company called Equip, an accessories retail outlet. She continued there until June of 2010. From February 2010 onwards, she was involved in pre‑season training in soccer at Cockburn Soccer Club. Again, in 2010, she prepared various resumes for applications for work.
In April 2010, she moved out of her family home to live with her boyfriend, Mr Hieu Chi Truong and his family in Willetton. On 9 April 2010, she obtained a medical report for the purposes of a recruitment agency, Jobwire. She left her employment at Equip, because she obtained full-time employment at TNT, where she remained until she resigned to take up employment at 'Sunrise Dam', a project 'up north'. She worked here between 17 June 2010 and 30 June 2010, on a two weeks on, one week off basis. From October 2010, she worked for Avis Car Rentals three or four days a week, about 20 hours per week, dealing with the hiring of vehicles at the Domestic Airport, until 16 November 2010. Meantime, at the end of 2009, she sat for, and in early 2010 passed, the test for a heavy vehicle driver's licence. In January 2011, she recommenced employment with TNT, in a different role, which continued until March 2011. At the time of trial, she had made numerous further job applications.
The plaintiff's evidence as to disability
In her evidence‑in‑chief the plaintiff stated 'I did get continuous headaches ever since that day', referring to the day of the incident. When asked, again in her evidence‑in‑chief, how often she got a headache in the first year, her response was 'pretty much every day'. She described the headaches as varying. Some days she said she would get a few little ones or one day she would get a strong one that would cause her to stay in bed. When asked about treatment in that first year she stated:
I tried everything. I was referred to different specialists. I went to physio. I did chiropractic. I also just tried some home sort or remedies, oil treatments. We thought it was my bed as well at one stage. So we changed the mattress on my bed. We adjusted my pillow. We got the chiropractic recommended one.
She said she did not cope too well at school. She had to take a lot of time off although on some days she would push through it. She would take Panadol and stay at school. In describing the headaches, she said that they could vary from seconds to almost an hour at stages. The plaintiff's evidence was that she suffered almost constant headaches following the incident, which made her life at school and outside school more difficult. She said that prior to the accident, she was always running around outside, but that after the accident she was more reserved and would rather spend time at home. She said that if she had a headache she would want to be in a safe place with her parents. At school, the injury affected her because, she said, she would get blurred vision, and dizziness. As to the blurred vision, when asked whether it was a continuing feature, she said it was there, it came every now and again but not constantly. She described herself as a sports fanatic who loved her fitness and her sport. She said that she did everything that was thrown at her, not to the best of her ability, because the headaches would stop her performing at her best, but she said that she still attempted all activities. She said that when she had a headache, she could not concentrate or think and she would just want to be left alone.
In Years 11 and 12, she pushed herself hard in her studies, but could not concentrate or focus when she had a headache. She said that when she did not have a headache she excelled and she made the most of that. She claimed that she walked out of two of TEE exams because she of a headache, but she could not say which exams. She said that it was so embarrassing and that she felt humiliated. She did not remember what her TEE score was, because it was 'too embarrassing to look at' them and it 'hurt too much'.
Socially, she said that it affected her because her friends did not understand. She said that her friends slowly stopped inviting her out because she would always complain and she said that she tried to avoid everyone in the final years at school. She said that in soccer, she was told to avoid heading the ball because it hurt her neck and that would cause a headache. However, she said she tried her best and when she got a headache she would sit down and take five, 10 minutes or just not go to the training sessions.
She said that she resigned from her first part-time job at Bakers Delight, in essence, because she was concerned about her headaches. She said it was very hard to work at Coles because of her headache and that the standing affected her posture and thus her neck. When she worked at the 'Old Shanghai Sweets' in 2006, she was serving customers, re‑stocking the fridge and doing general maintenance of the shop which she said she did enjoy, but on some days she could not cope and asked for breaks. She was there for seven months, approximately. The employment came to an end, she said, when she woke up one morning with a headache and was really snappy. She got the bus to work, only to arrive and find she was not rostered on that day. As a result of this, she left this employment, 'because she had put so much effort into coming into work with a headache'. She never returned. The day she started work at Anchor Foods, she found that she could not cope with the computer and therefore only lasted one day.
She was employed part-time at the Liberty petrol station in 2007, after she had left school, in a role which involved serving customers, re‑stocking, re‑ordering, checking the gauges for the fuel and the gas. She said she was good on some days but some days were not too good as she said she found that the fumes from the cars and petrol triggered headaches. The employment ended after she came home one day, she said, crying to her mother that she had a really bad headache. She spoke to her mother about coming up with something to resign 'nicely' without having to tell the employer of her headaches because she felt it was embarrassing. In resigning, and she gave the reason to her employer that her wage was late and she was not paid in full. This, she admitted, she had made up.
She said that she 'pretty much got a headache every day' when she was away on holiday in Bosnia in 2008, although she joined in activities. When she returned from that trip, she obtained employment at Port Realty. She was a personal assistant to the boss, Ms Susie Surina, as well as doing general cleaning, customer service, answering the telephones, taking messages and going out to properties. She said this was her first full-time job which she found very hard and that headaches would be triggered. She said there was a lot of computer work and a lot of filing. She also said that because she was the all‑rounder she often had to go out into the middle of Fremantle and could walk around, which was helpful. She came to the point where she wanted to go home a bit earlier and asked the boss, telling her that she had to pick up her sister from primary school. She did not discuss the problems she was having because of headaches with her boss at that stage. She said the reason she gave of going to pick up her sister was an excuse and it was to relieve her headache: - her grandmother was capable of picking her sister up. On 30 January 2009, she was given a letter terminating her employment. The letter advised that her position as office junior was no longer available.
On the plaintiff's account, the termination of her employment at Port Realty came about when, one afternoon, she had a headache and went to ask Ms Surina if she could leave a little early. She was asked to go and sit down for a few minutes. When she went back 10 or 15 minutes later she was given the note. She was asked to pack up her things and leave. The impression given from her evidence was that the termination related to her condition.
Her next employment was at Valley Girl, a female clothing retail shop in the heart of Fremantle. The plaintiff took up employment there part-time casual shortly after Port Realty. Her duties involved cleaning, vacuum cleaning, putting up the clothes on the racks, selling merchandise and all the duties that one would expect in such circumstances. She said that at times her neck would hurt from her activities, and the loud music that was played in the store gave her headaches. She asked for the music to be turned down a bit from time to time. She said at that period of time her neck hurt often, and that there were headaches associated. She described the headaches as being daily. She resigned from that employment telling the manager that she had found new employment. In evidence, the plaintiff said that this was not true; that she simply told her that because she did not wish to leave on 'bad terms'.
Towards the end of 2009, she was working for Asset Focus earning $800 a week. She said she took a day off now and again when her headache was really bad, but she could not recall the dates. She described the termination of the employment at the beginning of 2010 as being due to her boss making an unreasonable request for her to do a job in Joondalup. On the day in question she communicated with her employer by email about the jobs assigned. She had not had enough sleep and had a bad headache. Her description was that the email exchanges came to a point at which the employer said, 'If you're not going to do the job then you will have to be terminated' and that was the end of her position.
After trying a day's work at a coffee shop, she ended up with further employment in retail at 'Equip' in Garden City, which was an accessory shop, 'full-time casual', and again the plaintiff said that the music was too loud, Garden City was too busy and that her boss permitted her to take regular breaks and take Panadol. She finished that employment because she got a full-time job at TNT, doing the bookings and dealing with customer enquiries for this courier company. She described as suffering quite bad headaches while sitting for long hours and looking at the computer. She worked there for three or four months and left because she had been offered 'an awesome job in the mines'. She said that she wanted to work in the mines and decided to pursue that. She said she lasted a month at the job at Sunrise Dam, complaining of the workload being the main issue. She said it was very stupid that she pushed herself to work the 12 hours. She could not handle her headaches and her neck. She also said that in part, she missed her family and the support of her family and her partner and that was also a reason she returned to Perth.
She then worked three or four days a week with Avis. She loved what she was doing and she loved being put under pressure or 'she said under the pump'. On her account, she worked there for four or five months but that her head and neck would almost always play up when she was moving around a lot. She resigned telling her boss that the environment was not suited to her headaches.
After Avis, she returned to TNT, obtaining the position through a recruitment agency, Jobwire. The work was full-time, earning over $1,000 a week before tax. This time the role was that of a despatch officer. She said that she was ultimately terminated from TNT because she had had trouble with her headaches, had had to reduce her hours and had taken too many days off. Since that time she had been seeking employment on a wide basis.
Her evidence was that at school she had been planning to get into the fitness industry but had not done that because of her headaches. She said that she could not study due to her headaches. She also said that her social life had deteriorated personally, emotionally and physically. She said she really wanted a full-time job, to have one job, not as many as she had tried and she said it was 'very embarrassing'. She said that the situation has made her feel degraded. It was debilitating and that she felt humiliated and ashamed. She said she had felt like that for the whole of the last eight years. She said that she had seen psychologists, physios, chiropractors, heat treatment, kinesiology, tapping techniques. She said that she had tried everything.
In summary, the plaintiff's evidence gave the strong impression that each employment she held had been adversely affected by her headaches leading to its termination, in some fashion, save for the first job at TNT which she quit to work up north. She gave no detailed description of how it transpired that jobs she had sought, enjoyed, and did well at initially, came to be too much for her.
Other evidence of fact called by the plaintiff
Aida Smriko
The plaintiff's mother confirmed that her daughter had an accident in November 2003. She recalls that she came home one evening, looking nervous and upset and said she was 'not herself'. The plaintiff explained to her mother that she was swimming in the pool and that the water polo goal post fell on her head. Mrs Smriko said she checked her head and her daughter started crying. Mrs Smriko said although she had many questions to ask her, she did not ask them at that point in time. She saw there was no blood or anything on the head. She rang the doctor but they had no appointments for that night and she said that she made one for the next day or the next available appointment.
She described her daughter prior to the accident as being a tomboy, hardly ever inside but out playing sports and that her health was very good.
She said that when they went to the doctor she saw a female doctor who later had maternity leave, and then she saw another doctor, Dr Gallagher.
Mrs Smriko said that her daughter complained of symptoms of her vision, her neck and her headaches after the accident. She said that after the accident Sabina would not go outdoors often; she would not go in the pool by herself, she was speaking of her backyard pool; she said that her daughter would not go on sporting or other activities with friends a lot of times and effectively described her after the accident as being housebound. In her later high school years, the mother said she became very depressed, would spend a lot of time in her room, and would not go out. She was very snappy with the family. She did not accept that any changes in behaviour might be attributable to adolescence. The mother said she joined a football club in 2010 for the season to encourage her daughter to go because she was withdrawn and would not go. She said they had a lot of fun and did training together.
Mrs Smriko confirmed that her daughter participated in school sports after the incident. When asked whether she continued to excel in school sports her response was 'not as she could have'. She confirmed that Sabina loved drama, that she was very funny, that she was 'like a class clown' or a 'comical person'. She described her as being very good at dance. She confirmed that her daughter was a registered member of the Phoenix Soccer Club from the age of 10. Later she moved to the Cockburn Soccer Club. It was my strong impression, under cross‑examination, that she sought to minimise her daughter's achievements. For example, in soccer when it was put to her that 'she had scored goals' she answered 'if she fluked them, yes'. She gave evidence of her daughter complaining about headaches in the context of playing soccer at various times. She confirmed that her daughter suffered other unconnected injuries whilst playing soccer. She went skydiving with her daughter, for her own birthday in 2009. This was a present from her daughter. She confirmed that her daughter was interested in, and involved in, a wide range of activities. She accepted that she was involved in making excuses to the Liberty petrol station owners to 'allow' her daughter to quit, and said that it was she who claimed to the employer that her daughter was not being correctly paid, when this was not true.
Hieu Chi Truong
He is the plaintiff's boyfriend, a teacher at the Darling Range Sports College, and has known the plaintiff since early 2009. They now live together at his parents' house. They met at The Warehouse Fitness Centre in Fremantle. He said that the plaintiff, like himself, was keen on staying fit. He described that they would go for a run, and go to the gym to train. He said that a few times she could not complete her exercises because of getting headaches and had to stop because it was too much. He also said that they would go out socially, depending on her headaches, he said they stayed home mostly and did not get out much at weekends. His expression was that it was for her comfort, knowing that if she did come down with a headache it would be easier for her to manage at home instead of being out somewhere and having to take time to get home depending on where they were.
Sarah Gunson
Ms Gunson was a young woman who worked with the plaintiff at Port Realty in Fremantle. She was the receptionist when Ms Smriko was the office junior. Her evidence‑in‑chief principally concerned the termination of the plaintiff's employment at Port Realty. She described the afternoon and she did not recall any harsh words being spoken. She said that the plaintiff walked out saying she had been fired, with their employer right behind her. Otherwise, she described the plaintiff as a good worker apart from her headaches. She confirmed there was an arrangement made for the plaintiff to leave work early to pick her little sister up from school. She could not speak to the attendance of the plaintiff at work in any detail. She said that Sabina was very good with clients, did the filing and they were still friends. She confirmed that both she and the plaintiff had got into trouble for being on the internet too much. There was an issue about an afternoon where the boss was out and the two girls had both left work early, she received a call from Ms Serena who had been unable to contact the plaintiff. She was cross‑examined about the mode of the plaintiff's departure and could not recall any foul language.
Henry Halim
This young man worked with the plaintiff at the airport for Avis, a car hire company. They were both in customer service. He had worked there for longer than the plaintiff. He described her as working there for four or five months, casual. He described her as a lovely person who talked a lot but sometimes she could be really quiet all of a sudden. He described her as a hard worker. He said that she missed quite a few of her shifts and he had to cover for her in the evenings sometimes. He said that the plaintiff did tell him that she had headaches sometimes when she went really quiet. He agreed that she was pretty reliable to work with.
In summary, the witnesses of fact called in support of the plaintiff's case provide no independent corroboration of her evidence of disability. The plaintiff's complaints of headache, or neck restriction, are of their nature invisible to the eye. At best, the evidence of this kind can only indicate consistency of conduct, or consistency of statements in relation to conduct. Overall, I find that these witnesses confirm more the extent of the plaintiff's ability to participate in normal work and activities, and add little otherwise, save that the plaintiff, on occasion, complained of headaches.
Mrs Aida Smriko confirmed the immediate aftermath of the incident on 10 November 2003, and that she caused her daughter to have an appointment at the doctor's and attend for medical assessment, it would appear, quite quickly. However, from the notes of the medical practice and the evidence of the general practitioner, the plaintiff did not attend for examination until 10 days after the incident. The records do not show that there was any attendance upon a female doctor prior to that time and after the incident. It may be that she was mistaken in this regard as to the visit to a female doctor. It does not hold great significance in the course of treatment.
My impression of the mother was that she was very supportive of her daughter, to the extent of personally querying with the police the reasons for her non‑acceptance into the service, thinking it might be related to her own employment with the Western Australian Police. I find that she was naturally very concerned for her daughter, but less of an accurate historian. Her minimising of her daughter's sporting interests and achievements echoed closely to the plaintiff's own portrayal of these matters. I do not consider her to be a reliable or independent witness on disputed matters. She confirmed the subterfuge in relation to the plaintiff's resignation from Liberty petrol station, which I find to have been unnecessary and deceitful.
Evidence of fact called by defendant
Suzana Esther Surina
Ms Surina is and was the principal of the real estate agency, Port Realty, in Fremantle. She described the business as being engaged in real estate sales, property managing, commercial leasing and all other real estate matters. She confirmed that the plaintiff commenced employment with her firm on 3 July 2008, as an office junior. In that role, she did a little of all office duties, mailing, computer work, entering data into the property management programs, receiving money from tenants, sending emails, sorting emails, the filing, going to the bank, preparation of the banking, basically all-round general office duties.
The described the plaintiff's performance, initially, as being excellent. She said she was a very good employee who in the first few months could not do enough to help. She described her as being very good with clients, having a nice manner, being confident and an asset to the business. She confirmed that shortly after commencing her employment she asked if she could leave early to collect her little sister from school. Her recollection was that the mother had work commitments and her grandparents were overseas, or otherwise away, who would normally pick up the little sister. She said she was quite lenient and allowed her to do that possibly over the July/August period of that year. She did not return to work on those occasions. Ms Surina's evidence was that the plaintiff started to change after about three or four months, from being a terrific employee, to being more lax in her work, for example, texting that she would not be coming in, not responding to phone calls and spending a lot of time on the computer for personal use. She described that if she was out of the office, when she checked the computer logs, there would appear to be almost continual internet use of 'play sites' whilst she was absent. She said she had a word with the plaintiff and also Sarah Gunson in relation to this matter.
She described the plaintiff as a person whom she thought had a lot of potential, as an attractive girl with a big personality and confidence. However, she reported that after the initial period, she had to put up with a lot of back talk and the plaintiff not doing as she was asked. She gave examples, such as the plaintiff not obtaining photocopying when requested for the purposes of a meeting that Ms Surina was having with a client. When Ms Surina remonstrated with her, that she needed the document immediately, the plaintiff's response was 'Well, you didn't say that. Why didn't you ask?' Ms Surina said incidents of that kind happened on a few occasions, plus not getting the job done, not responding to text messages and not replying to phone calls. She said as a result of this behaviour she called her into the office, told her that she had been doing a good job but that she needed to change her attitude. On that occasion, she described the plaintiff leaning over looking at the clock on the computer and saying 'Oh, it's 5 o'clock. I have to go now. We'll have to finish this another time. Bye'. She described another occasion when both of her junior employees left the office unattended in her absence, and did not respond appropriately to phone calls.
She said that the plaintiff did not tell her about headaches at the beginning of her employment but after a few months she said that the plaintiff told her of an event that happened at school, and that she had headaches from that. As a result, Ms Surina suggested that she try a chiropractor in Fremantle. Ms Surina's account was that in October/November she started to take a lot of sick days. This she described as being different from the odd day off she took in the first few months. She said there were certainly no illnesses at the beginning.
She said that the plaintiff ceased working for her on 30 January 2009, after about seven months. On that particular day, she said she had come to the conclusion that because of the economic downturn, and the fact that the plaintiff was not working well, she could not afford to maintain her position. She said that she had planned to give her a letter at the end of the day, which was a Friday and to give her notice. On that morning she said that the plaintiff worked as usual, but after lunch came to see her saying she was not feeling very well. The plaintiff said she was going to go home. Ms Surina said that she did not ask to go home, she just told her that she was going to go home. Ms Surina's response was to ask her to wait for a moment and then presented her with the letter terminating employment and a cheque for that week's pay in lieu of notice. Ms Surina said that the plaintiff read the letter in front of her, and then proceeded to scream and swear at her. Her description was that she 'exploded'. Ms Surina asked her to leave, followed her down to the front office during which time she said the plaintiff was calling out to Sarah Gunson using obscene language. Ms Surina saw her off the premises. The plaintiff actually came back to get her mobile phone and was told that she was not welcome to return to the office. The letter of termination referred to the economic climate and her inability to maintain the position.
After that afternoon, apart from some correspondence concerning superannuation and the like, the next Ms Surina heard from the plaintiff was when she emailed her to ask Ms Surina to assist with the case against the Department of Education.
Under cross‑examination, Ms Surina confirmed that the plaintiff was terminated because she could no longer afford to keep the position open, in the economic conditions that were then prevailing, as she was employing her to assist with the workload but that was not justified when, in fact, Ms Surina was dealing with the workload herself. She denied that she was specifically terminated for being rude and insubordinate, but stated that she was very disappointed in her attitude, when she had persisted with the plaintiff's employment. She confirmed that the plaintiff was a 'terrific girl in the first few months'. She could not fault her. She said that she did not have headaches at the beginning. She said that her mother did not tell her that the plaintiff had any illness (the mother had been instrumental in recommending Sabina for the job). Ms Surina said that she initially got on very well with the plaintiff. Subsequently, she could see an excellent employee going downhill in her attitude. Nor did she take days off because of headaches in the first few months. She confirmed there were later discussions about headaches, after she started taking a lot of time off in October/November. She confirmed that whether or not the plaintiff's attitude had changed she would still have had to let her go because she was not doing the work. She said that 'the back‑chatting and the attitude was just a superficial personality trait which was not doing her any favours'.
Casey Ellen Collins
Ms Collins was the owner of Asset Focus Pty Ltd, the company which employed the plaintiff as a 'property inspector'. She was employed after receiving an email from the plaintiff with a resume. After a day's trial, she was taken on to carry out property inspections and write the reports on those inspections. She was to type the reports at home. The inspections were booked on a daily basis and notified to her. Initially her contract was casual with a probation period of three months. Ms Collins described the plaintiff's work initially as being of a very high standard and the plaintiff as being very reliable. She recalled that the plaintiff participated in a Melbourne Cup function in November 2009 held by the firm. She described the plaintiff as a bubbly, happy, cheery lady. Before the end of the probation period, the terms of her employment were changed and she was offered a salary package including superannuation on the basis that she would do three jobs per day and at times be required to travel to wherever the jobs were to cover other staff if necessary. As a result, her pay increased.
Subsequently, in the New Year, Ms Collins indicated that the plaintiff had a couple of consecutive Fridays off, on which jobs had been booked out to her, and the quality of her work had gone downhill. Ms Collins subsequently learned that Sabina had actually taken time off to complete a driving test.
In early February, the roster required the plaintiff to complete various jobs including one in the Joondalup area. The plaintiff indicated by email that that was too far for her to go and she was not going to do that. Ms Collins considered that this was not in accordance with the agreement that had been concluded when her employment was confirmed and her rate of pay increased. As a result, there was an exchange of emails, as to the terms and conditions upon which the plaintiff was employed and the requirements for her work. This occurred on 3 February 2010. The plaintiff ultimately refused to do the work. Ms Collins in her email expressed her disappointment, noted her unreliability in relation to sick days and refusing to carry out jobs, to which the plaintiff responded that she loved the job, took pride in her work but accused Ms Collins of taking advantage of her. She was offered three options, to revert to the original contract, to stick to the second agreement or to resign. In her response, later in that day, she accepted that she took her heavy vehicle driving lesson on a Friday that she took off as sick and then sought to justify this conduct, arguing with her employer in terms that only be described as petulant and childish. As a result, having refused to choose either to revert to the original contract or continue with the current contract or resign, she was given notice. There followed further administrative difficulties in relation to her final payment and the reports that she was deliver. Following the termination of her employment, Ms Collins heard nothing from her until an email on 4 December 2010 when the plaintiff requested assistance with her court case.
Both Ms Surina and Ms Collins impressed me as practical business women and forthright witnesses. I accept their descriptions of the plaintiff, in the initial months of her employment in both their businesses. I accept that the termination of the plaintiff's employment with Port Realty occurred in the circumstances as described by Ms Surina, due to the economic circumstances at the time, but that the plaintiff's position was not assisted by her work or the attitude she had developed in the later months of her employment. In relation to Asset Focus, it is not necessary to determine with precision whether or not the company was asking more or less than was potentially required under her contract at the time. Be that as it may, the plaintiff's response in email, as already described, was quite unacceptable. I accept Ms Collins' description of her earlier enthusiasm and the change in her attitude, accompanied by the decline in the standard of her work and loss of interest.
I accept the evidence that initially there was no mention of headaches to Ms Surina, and that the question of headaches only arose at a later stage and at the time that the plaintiff's attitude had begun to deteriorate.
Both these witnesses expressed what I considered to be genuine surprise and dismay at the change in attitude of their employee.
My conclusion is that the plaintiff had no difficulty in performing her duties to an excellent standard in both employments in the initial months. These were periods of not insignificant duration.
Accordingly, I am not persuaded, on the balance of probabilities that the plaintiff suffered from unchanging symptoms as she describes. The evidence is not confined to her being able to perform well at work on an isolated occasion. The changes in her performance and behaviour are not consistent with a continuing persistent condition that might vary from day to day but otherwise was continual and debilitating. In my view, the plaintiff’s performance at work to the standards described by her employers in the first few months of each employment, are entirely inconsistent with the symptoms and problems she generally described. In my view, the decline in the plaintiff's performance is in each case more likely than not to have been due to a waning of her enthusiasm for the job, and an immature and, at times, rude and insubordinate attitude as an employee.
Medical evidence
Dr Gallagher
Dr Gallagher was a general practitioner at the Phoenix Medical Centre and had known the plaintiff for many years as a patient.
He confirmed that the plaintiff was seen initially following the incident of 10 November 2003 on 20 November 2003. She reported headaches and some blurred vision and a sore neck. His diagnosis, on 20 November 2003, was of a scalp contusion and a soft tissue injury of the cervical spine. His notes record a general neurological examination. She was again seen on 10 December 2003 when she was described as 'not being 100%' and having episodes when she felt faint and dizzy. She described trouble seeing the blackboard at school. On 5 January 2004 the plaintiff saw Dr Van der Veen who also gave evidence. He confirmed that he saw the plaintiff on 5 January 2004, when she complained of feeling lightheaded and suffering from dizziness and having difficulty on the computer. His notes record an impression of stress symptoms and he recommended neck exercises. He said, in evidence, that he thought that neck exercises might relieve tension and that movement was a distraction from pain. Dr Gallagher subsequently saw the plaintiff on 27 February 2004 and ordered tests which he said were to check for any other cause of headache apart from trauma. He requested a neck x‑ray and when he saw her subsequently on 21 April 2004. He referred her in July to a chiropractor. He received no report from the chiropractor but did have a telephone discussion with him which he believed was simply to check that other investigations had been done. He also referred the plaintiff to neurologists being Mr Knezevic, Dr Silverstein and Dr Goodheart. The reason for such a referral was the persistent nature of her headaches and their daily occurrence and the lack of response to treatment.
He had subsequently seen her since the accident from time to time. He said the common thread was that there had been persistent headaches involving the neck and the back of the head but there had not been any consistent features suggestive of migraine. He had referred the plaintiff to a psychologist and for physiotherapy. He noted that she had initiated physiotherapy treatment herself after the accident prior to his involvement. His reports in relation to the plaintiff were based upon what the plaintiff had told him. He accepted that the plaintiff's complaints to him were consistent with the usual features of what he described as 'tension' headaches. He also confirmed that there were no notes of the plaintiff seeing any other doctor prior to his consultation with her on 20 November 2003 in relation to this injury. His reference to such a consultation was dependent upon what she had told him. There were other attendances for unrelated conditions during the times he treated her.
Dr Gallagher provided a report which indicates that he last saw her in June of 2007. He confirmed that her treatment had involved physiotherapy, chiropractic treatment, a trial of antidepressant medication and x‑ray CT scans of her spine and head plus two MRI scans of the head. Her investigations and consultations he said had been required due to the persistence of her symptoms and the need to exclude underlying serious pathology. He described her response to physiotherapy as limited, but that she did have some response to chiropractic treatment initially but the headaches ultimately recurred. The trial of antidepressant medication was unsuccessful. The failure of response to those treatments prompted him to refer her to seek help with pain management from a clinical psychological.
Dr Semmens
Dr Chris Semmens was a clinical psychological of 30 or more years' experience who saw the plaintiff in 2007 on a reference from her general practitioner. He saw her on a number of occasions and prepared a report dated 5 November 2007. In that report, having described the history related to him by the patient, and the treatment received, he expressed the view that she was suffering from post‑traumatic stress disorder. He applied various psychological techniques, but he said the plaintiff did not appear to benefit from any of the approaches aimed at alleviating the symptoms of post‑traumatic stress disorder. However, he expressed the view that she had benefited from arousal control and pain management skills. The symptoms he described which she suffered from were intrusion, that is reminders bringing back feelings from the instant, trouble staying asleep, hyper‑arousal, for example trouble concentrating, being watchful and on guard, avoidance, for example staying away from reminders of the incident and deliberate attempts not to think about it and headaches. In the report he said he considered the plaintiff capable of employment but that she would not be currently able to work around water.
His views were based upon her description of her experiences and symptoms and some screening tests, but primarily her input and description were the foundation of his views.
He said that the plaintiff told him she suffered from headaches since the incident. These headaches occurred on a daily basis and vary in intensity. The headaches vary in terms of how they last from about 45 minutes to five minutes. By reason of the fact that she did not respond to his treatment, he expressed the view she needed to be referred to another clinical psychologist, which is what in fact occurred.
Dr Semmens had no knowledge or notes of the sports that the plaintiff was involved in at school and understood that she was reluctant to be involved in swimming. He was clearly not aware that the plaintiff, in the years up to 2007, had played sports at school as well as being involved in dance studies.
The plaintiff gave no direct evidence of trouble staying asleep, of pictures of the incident popping into her mind, of being watchful and on guard, or of staying away from reminders about the incident.
Ms Connolly
Jenny Connolly is a clinical psychologist, in practice since 1994. She saw the plaintiff in the years 2008/2009 and prepared a number of reports. She initially saw the plaintiff on referral from Dr Semmens and in her first report stated:
Sabina has described a significant anxiety problem since an accident at school in 2004 when she was in year 9 which she has coped with largely by avoidance (eg not taking any physical education subjects at school, despite her passion for that area, as they would require her to go into the vicinity of the pool where the accident occurred). She has also suffered from intense and disabling headaches with relationship to the accident and anxiety is unclear. However, there are indications of an anxiety component to her reactions to the management of her headaches.
She described the complainant as being a keen and active participant in treatment, having made some sound progress with her anxiety based on a structured desensitisation program.
She further described in her report of 30 December 2008 that:
Since the accident Ms Smriko had experienced exaggerated threats/anxiety reactions to perceived danger. Around water, she rated the level of danger to about 80% and described feeling terrible and being preoccupied by mortality issues. However she also experienced anxiety in other situations most notably crowded social situations. She described herself as feeling afraid and insecure in all situations other than with family and close friends where she felt valued, safe and secure.
She went on to say:
She had coped with her anxiety largely by avoiding situations where it was likely to be provoked. This meant that she had avoided swimming at either pools other than with family members at home or at the beach, did not do sport at school, minimised social activities with friends and preferred not to talk about the accident or her headaches.
As to activities she said that:
Ms Smriko described herself as a sports fanatic who had thought she would pursue a career in a sports related field. However since her accident she had avoided all reminders of it as much as possible (although 'everything reminds me of it'). At school, she had felt agitated and distressed near the sport area, including the pool, and so had not chosen any non‑compulsory sport subjects.
Ms Connolly stated that the plaintiff described symptoms consistent with a diagnosis of an adjustment disorder with anxiety and depression that could be attributed to the unresolved and interacting physical and psychological sequelae of the accident on 10 November 2003. Ms Connolly described treatment involving the cognitive behavioural strategies, relaxation techniques and desensitisation of anxiety relating to being alone near or in the home swimming pool. Her early treatment was prior to the family trip to Europe in February 2008. Ms Connolly goes on to describe her resumption of treatment in June 2008, at which time she records that the plaintiff gained a job that she was very pleased about in the real estate office close to home. She records that the plaintiff did not initially tell her boss about her problems and her headaches and once again her headaches began to trigger high levels of emotional distress focused on fears of letting people down and losing her job. She says that the plaintiff's mood continued to decline until she told her boss about the reality of her struggle to which her boss responded supportively by reassuring Ms Smriko of her value and offering her flexible hours.
Generally, Ms Connolly accepted that headache can be attributable to stress and that headaches are indeed common in the community. Ms Connolly clearly gained the impression that the plaintiff was not accepted into the police force because of her condition and, in her report dated 4 August 2009, confirmed that she had seen the plaintiff in April, June and August of that year. On each occasion she presented with signs of anxiety and depression and she stated that the plaintiff had worked very hard on the self‑management of her headaches.
In contrast to her apparent reports to Ms Connolly, the plaintiff gave no evidence of having any difficulty around water, commenced and continued training in 2009 with the Cockburn City women's soccer team, met her boyfriend in early 2009 at the Warehouse Fitness Centre and engaged in the police entrance process in the year 2009, including providing an inconsistent description of herself referred to earlier.
Dr Goodheart
The plaintiff was referred to Dr Ross Goodheart, in about August 2006 by Dr Gallagher, and saw her subsequently on a number of occasions and prepared a number of reports. In August 2006 he briefly describes the plaintiff giving a history of three years of headaches, troubled by almost constant daily headache, and that she said her headaches responded to chiropractic therapy and a period of rest. She also said the headaches could be precipitated by sporting activity, particularly running. His opinion was that the majority of headaches can be explained on the basis of muscle contraction and he recommended scalp massage, neck exercise including swimming. He also discussed relaxation technique and the use of heat therapy. He noted that there was no past medical history of note, that an MRI scan of the brain was normal and that on examination there was no particular restriction of neck movement. In November of 2006, having seen her again and repeated the neurological examination, he decided to repeat the cranial MR scan. He still thought that the majority of headaches related to muscle contraction. In December of that year, his report stated that he was wondering whether there could be a component of headache particularly that associated with swimming in association with facial sinus disease. He postulated obtaining an ENT opinion depending on her progress. He said she would monitor the headache symptoms associated with swimming in the next week or two. From the school sporting records, it is clear that the plaintiff had continued to swim throughout this period. The plaintiff herself had described herself as a strong swimmer. His opinion was that the plaintiff sustained a soft tissue cervical injury in the course of her incident and that she had associated muscle contraction headaches. He described her as being mildly affected by her headache symptoms. He said that in her opinion she was partially incapacitated for studies due to the ongoing symptoms. He saw her again on 1 February 2010 when she indicated there had been very little change in her symptomatology over the period of approximately three years since he last saw her. She reported continuing to experience daily headache symptoms which were still a major problem. The headaches were often precipitated by activity, particularly exercise. He expressed the view that she remained partially incapacitated with respect to social, domestic and recreational activities due to the ongoing symptoms she described. In particular, he stated that she had been unable to return to organised sporting activity as these pursuits exacerbated her headache symptoms. Again, after a consultation on 16 March 2011, Dr Goodheart confirmed the plaintiff saying that she was troubled by daily headaches which could vary in location and severity and that she was troubled by constant neck pain. His opinion was unaltered and to the effect that she was limited in her capacity to maintain prolonged periods of static posture including sitting at a workstation and assessed the injury as being 12 1/2% of the full and efficient function of the cervical spine. However, he confirmed in his evidence that the headache was common, that he was dependent upon the history given by the patient.
He confirmed that a soft tissue injury of the cervical spine was a very variable injury similar to whiplash, caused by a sudden movement of the neck but that the patient ended up with a predominant neck pain without definite evidence of bone or nerve damage. His explanation of headache in the case of the plaintiff was that they were coming from the muscular layer outside of the skull but she was getting tension in her muscles and that it appeared that they were being triggered by her ongoing soft tissue symptoms at neck level. There were no objective physiological signs to explain the headaches. He stated that headache is usually a diagnosis of history: generally doctors were fairly dependent upon the history, but here they were more so. Under cross‑examination he agreed that the plaintiff's headaches could be non‑specific muscle contraction headaches, apart from the history that they came on following a specific injury.
It is my view that taken as a whole, this medical evidence is dependent upon the accuracy and honesty of the reports that the plaintiff made, at various times, to the treating practitioners. I find that the plaintiff did not make the practitioners aware of the extent of the activities in which she was involved at the times she consulted them. There is a significant disparity between the impression gained by each of the treating practitioners, from the plaintiff, as to her condition, and the activities in which she was involved at the time. This is similar to the impression that the plaintiff gave of her condition in her evidence‑in‑chief, until confronted with the details of her various activities and achievements in cross‑examination.
The plaintiff's credibility
This case turns on the plaintiff's credibility. The nature of her complaints renders her accurate reporting of her symptoms and residual disabilities crucial. Not only is it necessary for her evidence to be accepted in relation to the persistence of her symptoms, the severity of her symptoms, and the efficacy of any treatment received, but her reports are also vital as the foundation of the medical opinion evidence upon which she relies. Without a proven factual base the opinion evidence is of no evidential value.
I had the opportunity to observe the plaintiff closely during the extended time she spent in the witness box. She was a well presented young woman. She was quite fluent and did not have difficulty in expressing herself. I am conscious that, in assessing a person such as the plaintiff allowance must be made for her youth, the unfamiliar nature of court proceedings, and the necessity to present her information in the form of question and answer. However, having made all due allowances for those factors, and the fact that she was being asked to recall events over an extended period going back to when she was 13 years old, I am left in serious doubt about her reliability and credibility. There are a number of reasons for this, which I set out below.
1.The plaintiff had little or no compunction in telling lies, when it suited her to do so, even where, on an objective assessment, such conduct would not be required to achieve her ends. For example, she was employed at the Liberty petrol station as mentioned above, on a part‑time casual basis, and she claims that she found either due to the fumes causing her headaches or due to headaches, that the work was too much and she wished to resign. Instead of simply tendering her resignation, she and her mother misrepresented to the employer that she had not been paid properly. This was unnecessary and admittedly untrue. The most startling aspect of the matter is that the plaintiff did not appear to perceive how inappropriate such conduct was. When it was put to her that she made an accusation concerning her pay rather than tell the employer that she had a headache she responded:
I don't see how telling him will benefit me in any way. It will just make me embarrassed. Have something on my shoulders. I don't want everyone to know.
She had no answer to why she did not simply resign without explanation.
2.The plaintiff has represented herself to third parties in terms inconsistent with her evidence of disability: firstly, when the plaintiff applied to join the WA Police Service, she was required to write a concise personal history in which the plaintiff included the following:
2007 I finished Year 12 TEE, wanted to become a personal trainer but got a job in a real estate firm, worked in real estate for seven months, I unfortunately got dismissed due to the economic crisis. I had learned a lot, really enjoyed my time there. But would find myself more happier in a more hectic, demanding environment where I will be faced with a challenge and different scenarios. I am always outdoors, love keeping fit and healthy, I run at the beach every morning. I try getting either parents to come along but everyone hates running with me because I push them too hard. I've been playing soccer for five years now, I love the thrill and excitement, challenge and pressure of the game. I recently accomplished skydiving with my mum. The most exhilarating thing anyone can do. I plan to go again but to do it solo (tandem).
That application, made on 5 March 2009 contained a declaration that the statements made and information given were true to the best of her knowledge, information and belief. There was no necessity for her to have expressed any comment upon the reason for her dismissal from Port Realty, in that application. Her given reason is consistent with that of Ms Surina, her employer.
Secondly, the picture painted by the plaintiff in this application to the police was not isolated. A number of her personal resumes were produced, including one dating from April 2010. In this document the plaintiff describes herself as happy, resourceful, positive, team player with good sense of humour:
I'm a person who enjoys work and challenges. I strive under pressure and I am very capable of handling complex and demanding situations. At present I play soccer on a women's team, go surfing occasionally and I am a member of The Warehouse gym in South Fremantle. I am fit, competitive and skilful.
She goes on to describe herself as being capable of using a number of forms of software to carry out general administrative duties in a timely and efficient manner. These representations and descriptions are at odds with the impression that the plaintiff gave in her evidence, of a significant on‑going incapacity due to the incident when she was 13.
Thirdly, when required to undergo a medical, by the agency Jobwire, she filled in a 'health survey form', dated 15 March 2010. In that form, she stated she was not being treated by any doctor for any illness, did not have any difficulties with multiple activities described in the form, did not suffer from any physical condition, specifically, she answered 'no' to the question whether she had ever had any physical problem with her neck/shoulders. In the section left blank for the question 'Any other physical or health related issues?' she has put a large cross.
When challenged under cross‑examination on the resumes, she gave explanations such as 'some words were just emphasised a bit more, that I'm capable, and making me look a bit more better and stand out from the crowd'.
The plaintiff confirmed in evidence that she had made a large number of recent job applications, across a wide area of expertise, in all of which she had described herself in positive terms. These recent descriptions of herself also are totally at odds with her impression given of restrictions and disability and depression.
3.The plaintiff's school records, both academic and sporting, together with her involvement in women's soccer, are entirely inconsistent with the degree of disability she claims she suffers. Her sporting activities were not isolated occasions. She complains that she would have done better but for her headaches. An objective view is that she had performed well, and there was no evidence from which I could conclude, independently of her assertions, that she had been held back in her interests, by any condition emanating from the accident.
4.The plaintiff's evidence was that she did not complain at school of any difficulties arising from her headaches in connection with her academic or sporting activities. I cannot accept that there would not have been some complaint, letter of excuse for particular activities or some indication from the school records of her difficulties, had the sequelae of the accident been as significant as the plaintiff represents, or her performance been seriously erratic. Her absences from school vary, but do not show any pattern consistent with her evidence.
5.She has made a number of misrepresentations to her treating doctors, previously referred to, as to the extent of incapacity she was suffering at the time she consulted each of them.
6.The tenor of the plaintiff's evidence was that she was subject to termination at Port Realty, because of her condition. I accept the evidence of Ms Serena as to the circumstances and reasons for that termination. The plaintiff was well able to do the job without difficulties for several months. I accept there was a change in her attitude to her work and her employer, which ultimately contributed to her dismissal together with economic conditions at the time. I accept the evidence of Casey Collins about the termination of the plaintiff's employment with Asset Focus. The email communications passing between Ms Collins and the plaintiff at that time show an extraordinary attitude on behalf of the plaintiff, as an employee. I am driven to the conclusion that it was aspects of the plaintiff's character and attitude that have caused her to have difficulty in retaining these employments, quite independently of any complaint of headache.
7.The general practitioner's evidence and notes show that in recent years, other injuries caused her to seek medical advice. There is no indication of prescriptions for ongoing medication, or for trials of other medication for headache or other related symptoms. There are no claims or receipts for medications taken in recent times. The plaintiff's evidence was that chiropractic treatment helped her. The schedule of her medical expenses shows chiropractic treatment over a period between July 2004 up until the end of January 2009, although not consistently. There is no independent evidence as to the nature of the treatment, the purpose of the treatment or its effectiveness. It is remarkable, if the treatment was of benefit, that there has been no follow‑up of that treatment since January 2009.
8. The plaintiff engaged voluntarily in activities which she might have been expected to avoid for fear of causing herself further symptoms, had she suffered as she describes, for example sky diving. Whilst it is not possible to assess what a normal social life should be or could have been there was evidence that she attended social functions and was no recluse.
In summary, the plaintiff's evidence‑in‑chief contained broad assertions in relation to her alleged symptoms and incapacities but did not provide details or examples that gave colour to her complaints. Upon close scrutiny, her descriptions were at variance to the objective facts. The manner in which she presents herself in her applications for employment, her resumes, and her enthusiasm are entirely in conflict with her claimed disabilities. Her attitude to telling the truth was one of self‑interest. I am not prepared to accept her uncorroborated evidence of her claimed symptoms and disabilities.
Discussion
Far from having a devastating effect on her life, the evidence discloses a young woman who, from the age of 14, engaged in full‑time education, in sporting activities and, from 2004, fairly consistently until she left school, was also engaged in part-time employment, at a number of different retail commercial outlets. The overall picture is inconsistent with the claimed disabling symptoms of headache and neck pain, linked to anxiety and depression. It is also inconsistent with her claimed need to be with family and close to friends at all times. In 2007, when Dr Semmens' opinion was that she suffered from post‑traumatic stress disorder, based upon amongst other things, avoidant behaviour as far as swimming and water is concerned, the plaintiff accepted that she had gone to swimming class, in the week following, or later in the week of the incident and her school reports show her doing swimming in the following year.
In 2009, at a time when she described to Ms Connolly that she was anxious and defeated, she was simultaneously playing competitive soccer with a Cockburn City women's team and working at the Valley Girl clothing store, whilst hoping to be successful in her application to the West Australian Police Force.
It is striking that no explanation emerged from the plaintiff's evidence for the periods of consistent ability which she undoubtedly demonstrated in her employment, as described by Mr Halim, Ms Collins, Ms Surina and Ms Gunson. Although she states that she wished to pursue a career in sports or fitness, there is no evidence that she made any attempt to investigate or pursue such studies, ascertain what they involved, or whether she would be able to sustain the particular requirements. At the same time, upon leaving school, she immediately joined the local fitness centre, and trains, as described by her boyfriend, on a regular basis. Her last attendance upon her general practitioner in relation to a complaint of headache was on 6 August 2009. Her last attendance upon Ms Connolly was on 3 August 2009. Her treatment with Dr Semmens concluded in June 2007. She last apparently engaged in treatment at the Cockburn chiropractic clinic on 29 January 2009. Her last physiotherapy account is dated 14 October 2006.
Early in 2011, she made various applications for employment including applications as customer service representatives, bookkeeper/office all‑rounder, administrative officer, project administrator in the mining sector, Leyton Contractors, a job as a document controller. In her letters to the various HR managers in relation to those jobs, she describes herself as a former mine site cleaner with a strong interest in the construction industry, experienced in working long shifts and hours, experienced in safe work procedures ensuring diligent and hygienic work practices, interested in developing her knowledge and experience in the construction industry, having strong verbal and written communication skills, holding a HR driver's licence, confident of working in a fast paced environment, passionate and positive in her outlook. She also applied for a dump truck operator's position, a medical receptionist position, a job with Corporate Express, a job as a receptionist, an HR driving position, a shipping receiving clerk position, a job in a café and a position with Toll Personnel. The plaintiff also completed a 'responsible service of alcohol' course. When cross‑examined about the applications that she had made, she said that she had obtained assistance to write out resumes and covering letters, she confirmed that she had sent applications by email in relation to those job applications.
Evidence of isolated instances of activities or abilities do not necessarily militate against the existence of continuing disability after an injury. Symptoms of headache or similar complaints and psychological problems are not visible and may vary from time to time. Experience shows that people can and do make special efforts on occasion to participate in activities, for various reasons, and may suffer adverse effects from doing so. In this case, however, the plaintiff has not been observed on a handful of occasions to perform unexpectedly, rather she has been shown over the years to have acted in a manner generally inconsistently with her claims.
Conclusions
I do not accept the plaintiff as truthful and reliable witness in relation to her alleged ongoing symptoms and disabilities. I find, as is admitted, that the plaintiff suffered in an incident in the swimming pool on 10 November 2003, when a water polo goal post was knocked into the water and struck her on the head. I find that that resulted in a bruise to her head which would have been a shocking and upsetting experience for a girl in those circumstances. I find that she suffered some ongoing discomfort in her neck and some headaches resulting from that impact. I am, however, unable to accept the plaintiff's description of daily ongoing consistent headaches and other problems since that time.
I am unable to attach any weight to the opinions of the medical practitioners based, as they are, upon the plaintiff's accounts of her condition and symptoms: Woods v Director of Public Prosecution (WA) 38 WAR 217 [231] – [233]; Makita (Australia Pty Ltd) v Sprowles (2001) 52 NSWLR 705.
The plaintiff claims damages not only for pain and suffering, but also for loss of earning capacity, pursuant to Medlin v State Government Insurance Commission (1995) 182 CLR 1. Thus, she is obliged to satisfy the court of two things:
The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of … earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR 340.
The plaintiff bears the onus of proving, on the balance of probabilities, the facts upon which she relies.
Contrary to her assertions, I find that she was successful at school, successful in her sporting activities at school, an enthusiastic women's soccer player out of school, able to obtain casual employment, whilst still at school, and a variety of part-time and full-time jobs after she finished school. I do not accept that any symptoms of later headaches were relate to the incident or interfered with her ability to be employed. She has not established any loss of earnings or that she has suffered a loss of earning capacity which might be productive of financial loss in the future. I do not accept that she would necessarily have been unable to study.
I do not accept that the plaintiff suffered from post‑traumatic stress disorder or from an 'adjustment disorder'. The plaintiff’s bruised head and soft tissue injury to her cervical spine, I find to have been minor. I do not accept its persistence. The plaintiff attempted significantly to minimise all her achievements, both at school, academically and in the sporting arena, and that, additionally, significantly undermines her credit.
The defendant relied upon evidence of earlier headaches the plaintiff suffered as a child on which her mother consulted the general practitioner, prior to the incident. I do not consider that evidence as indicating more than that the plaintiff suffered previously from a relatively common complaint, which may well have been incidental, on occasion, to a viral infection or otherwise explained.
The plaintiff has not established on the balance of probabilities that she suffers any ongoing symptoms related to the injury in the school swimming pool. If she has occasionally suffered headaches, I am not persuaded that such symptoms had any connexion with the incident. Thus, the plaintiff has failed to establish any of the residual disabilities set out in the statement of claim.
She would have suffered pain and shock in relation to the initial occurrence, but the further particulars of pain and suffering have not been established.
She has not claimed any specific past loss of earnings, but sought a ‘global’ award for past and future losses, as may be awarded in certain circumstances: Brown v Rodrigues (Unreported, WASC, Library No 970334, 3 July 1997); Tomlinson v Thomas, [1999] WADC 119. The plaintiff has not established any specific past losses nor any loss of earning capacity due to the incident which could support such an award.
The plaintiff is entitled to compensation for pain and shock due to a blow to the head on 10 November 2003. In my view, the plaintiff is likely to have significantly recovered from that injury in a relatively short period of time. I am unable to specify the precise period of time, due to my inability to rely upon the accuracy of the evidence of the plaintiff as to her symptoms.
The Civil Liability Act 2002 applies to this claim. Section 9 of the Civil Liability Act provides that if a non‑pecuniary loss is assessed to be 'not more than Amount A' for the year in which the amount is assessed, no damages are to be awarded for non‑pecuniary loss. 'Amount A' currently is specified as $17,000.
But for the Civil Liability Act, I would have assessed general damages to the plaintiff at not greater than $2,500, which is well below the threshold amount. I make no award to the plaintiff for non‑pecuniary losses.
Due to my factual findings, I make no award for past loss of earnings or loss of future earning capacity.
There remains a claim for past and future medical expenses. Consistent with the failure to establish any ongoing residual disabilities, I make no award for future medical costs.
The claim for medical and related expenses prior to trial covered the period from the incident up to August 2009, with one account for Insight Clinical Imaging on 10 February 2010. In evidence, the plaintiff did not know what this was for, and the general practice notes related to her back. As I do not accept her claimed ongoing symptoms relating to the incident, I propose to take a broad approach and allow limited recovery of medical expenses, to the extent of approximately the first 12 months following the incident, for convenience, to the end of the year 2004. This amounts to the sum of $1,809.70.
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