Trudy Olsen v Identix Australia Pty Limited
[2002] NSWSC 157
•15 March 2002
CITATION: Trudy Olsen v Identix Australia Pty Limited [2002] NSWSC 157 FILE NUMBER(S): SC 12855/00 HEARING DATE(S): 25/02/02, 26/02/02, 27/02/02, 28/02/02, 29/02/02, 4/03/02 JUDGMENT DATE: 15 March 2002 PARTIES :
Trudy Olsen (Plaintiff)
Identix Australia Pty Limited (Defendant)JUDGMENT OF: Einstein J
COUNSEL : Mr M Maxwell, Mr J de Greenlaw (Plaintiff)
Mr M B Williams (Defendant)SOLICITORS: Gerard Malouf & Partners (Plaintiff)
A O Ellison & Co (Defendant)CATCHWORDS: Claim to damages regulated under Workers Compensation Act 1987, section 151 Z (2) - Personal Injury - Liability of employer - Alleged injuries sustained by plaintiff employee after fall down stairs at work - Medical reports and other evidence inconsistent with plaintiff's evidence of fall - Whether plaintiff fell on date alleged - Whether plaintiff fell on prior occasion - Contributory negligence - Plaintiff employed as office manager - Damages not litigated - Assessment of damages LEGISLATION CITED: Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)CASES CITED: Fox v Wood (1981) 148 CLR 438
Griffiths v Kerkemeyer (1977) 139 CLR 161
Heuston v Yore Contractors Pty Ltd (unreported, Supreme Court of New South Wales, Hunt J, 9 March 1992)
Jones v Dunkel (1959) 101 CLR 298
Kondis v State Transit Authority (1984) 154 CLR 672
Sullivan v Gordon (1999) 47 NSWLR 319
Wyong Shire Council v Shirt (1980) 146 CLR 40DECISION: Short minutes of order to be brought in by the defendant providing for a verdict for the defendant. Submissions as to costs invited.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONEINSTEIN J
15 MARCH 2002
JUDGMENT12855/00 TRUDY OLSEN V IDENTIX AUSTRALIA PTY LIMITED & 2 ORS
1 The plaintiff claims damages in respect of injuries which she claims to have sustained on 4 August 1998 when in the course of her employment and whilst walking down stairs in the premises of her employer, the first defendant, she is said to have slipped on the top step falling heavily to the ground.
2 The claim requires to be determined under the regime provided for in section 151z (2) Workers Compensation Act 1987.
3 The plaintiff had joined as second defendants the registered proprietors of the property in which the accident was to have taken place. The second defendants had in turn cross-claimed against the first defendant and against the managing agent retained by the second defendants apparently under a written agreement. Soon after the commencement of the final hearing terms of settlement were handed up resulting in the dismissal of the proceedings as against the second defendants and resulting in the dismissal of the cross-claims. In those circumstances it is convenient to refer to the employer, Identix Australia Pty Ltd, as "the defendant".
The plaintiff’s employment
4 The defendant at all material times carried on a business at 765 Pacific Highway, Chatswood. The business concerned the manufacture of a biometric device which verified the identity of persons by the use of a three-dimensional picture of a fingerprint which was scanned.
5 The plaintiff had commenced working at the subject premises in 1996, with her employer then being Fingerscan Pty Ltd. Fingerscan was taken over by the defendant in March 1998. At the time when she commenced employment with Fingerscan her position had been as personal assistant to the Managing Director and Chief Operating Officer of the company
6 In about March 1998, at the time when she became aware of the takeover by the defendant, the plaintiff was offered a different position, namely the position of Senior Office Manager at the Chatswood office which entailed a change of salary. Her then duties, as described by her in giving evidence, were as follows:
- “Managing the staff that were present in Australia; arranging for staff we did employ.. in Australia who were in the United States to be found a home, for them to bring their wives and children there, to make sure they were comfortable in their new environment; take care of all the administrative duties in the office such as overseeing the payments of creditors, debtors; doing some company secretarial work; making sure the PR part of the job - human relations part of the job with the staff was fulfilled; make sure the staff were happy, and that included taking care of the environment they worked in so whether they had a problem with their car park or whether they had a problem with their particular job, ensuring they were kept happy in the best way possible; the maintenance of their work environment, ensuring they had everything within their means to work efficiently; stock ordering from Identix in the United States; client or customer contact; liaison; repairs and ensuring that the repairs were done on board and in the office efficiently; customers were charged or not charged depending on the relationship we had with them.” [transcript page 25]
7 The plaintiff’s evidence was that from March 1998 she reported to Mr John Bruce-Smith, the chief financial officer who at that stage was situate in California, and that she also reported to another person in the United States whose name she could not recall.
8 The way in which she communicated with Mr Bruce-Smith was by e-mail and by telephone. On her evidence, if she needed to spend some money on the office she would deal with Mr Bruce-Smith in this regard.
9 A letter of appointment from the defendant to the plaintiff dated 10 March 1998 became exhibit P2. This makes plain that the position which she was offered was the position of Senior Office Manager reporting to the Managing Director. The description of duties includes the following:
· Unofficial secretarial responsibilities for the Corporation.. including such items as:
· Building Maintenance and Management
· Human Resources
· Staff Management in the absence of appropriate executives"
10 The plaintiff’s evidence was that her salary was increased with the letter of appointment. That salary was to be $57,500 per annum.
The office premises
11 The building in which the plaintiff worked was an office building comprising a basement area and car park with a security cage for stock. The reception was on the ground floor. The first floor comprised office space in which the plaintiff worked. Above the first floor was another floor for use as further office space. Access from the basement area/car park up to the reception floor was via 2 flights each of six stairs separated by a landing being part of the stairwell. The stairwell turned in on itself (ie. goes in the opposite direction) after the landing. Further access from the reception floor up to the first floor was via further stairs. The plaintiff had been in the habit of accessing the basement area from the area where she worked by walking down one and a half flights of stairs into the reception area, through a door on her left-hand side and then down the additional flights of stairs into the basement car park area.
The circumstances of the alleged accident
12 The accident is said to have taken place whilst the plaintiff was engaged in the task of carrying boxes from the reception floor down to the basement floor for the purpose of placing them in the security cage. She claims to have descended the first flight of stairs without difficulty, turned on the landing, felt for the top stair with her foot and slipped to the bottom of the flight of stairs. The anti-slip guard on the top stair had come off some time before. There had also been a problem with the lights in the area and the light was extremely dim. Holding the boxes made it difficult for her to see in any event. Had the lighting not been a problem, she believes she would have been able to look down towards the lower flight of stairs as she turned on the landing or it would have been easier for her to look in that direction.
13 The plaintiff was not a member of a private health fund at the material time. [transcript page 139]
The use of the stairs
14 The plaintiff’s evidence was that in her capacity as office manager she had occasion to use the flights of stairs on a regular basis and on occasion as part of her job would take stock to the cage in the basement where office supplies were stored. She would do this as often as required depending upon staffing levels, although it was not in her express job description.
Authority to expend monies to effect repairs
15 Her evidence in chief was that in her capacity as office manager she reported, as I have said, to Mr Bruce-Smith and that as part of her employment she had authority to expend moneys on the part of the company to some extent. In relation to the question of what that extent was, her evidence was "to effect minor repairs", meaning as she expanded, to the furniture, to purchase light bulbs and toilet paper and those kinds of items and minor repairs perhaps to desks or chairs being assets owned by her employer. In relation to how she would have these repairs carried out, she was asked in chief whether she would have to seek authority to do this or whether she just used the petty cash. Her answer was that petty cash was available for that use. On my findings the petty cash float was at all material times in some hundreds of dollars, likely to have been $500.00.
16 The plaintiff gave evidence as follows:
- " MAXWELL: Q. During the course of your employment with Identix Australia Pty Limited, did you have discussions with anyone there, that is superior to yourself, about where your authorisation, that is authorities in relation to repair, extended?
- A. No.”
The problem had been apparent for months
17 The plaintiff’s further evidence was as follows:
“Q. In the months or so leading up to August 1998 in relation to the staircase that you talked about leading to the basement, I think you indicated that you went down there and went up and down there on occasions?
A. Yes.
Q. Did you notice anything in particular in relation to that staircase specifically in relation to the lighting first?
A. Yes.
Q. What was that?
A. Several things, that the lights on the first landing at the bottom of the first set of stairs were flickering. One was, they were fluorescent bulbs, one was completely out, one was flickering. At the bottom of the second set of stairs the exit light was off, was out.
Q. Are we talking about the stairwell, the staircase between the reception and the basement?
A. That's right.
Q. What effect, if any, did you notice that had on the actual lighting in the area of the staircase?
A. The lighting was extremely dim.
Q. When did you first notice that?
A. Several months before my accident .
Q. Was there something else that you noticed?
A. The anti-slip, the metal anti-slip guard had come off the stairs.
Q. Where in relation to the stairs particularly had that come off?
A. It was off the first step on the second flight down.
Q. So to assist his Honour, you had come down a set of stairs?
A. Yes.
Q. From the reception area?
A. Yes.
Q. And how many stairs approximately in that set?
A. Perhaps eight.
Q. Then you came to a landing?
A. Yes.
Q. And in relation to that landing, are you able to describe where the anti-slip device had come off?
A. As you turn the corner on the landing it was the top of the first step on the first step.
Q. Then there were a number of steps going down?
A. After that.
Q. When did you first notice that?
A. Several months, I can't recall. It was a fair few months prior to the accident.
Q. Did you say anything firstly in relation to either of those matters to anyone at Identix?
A. Yes.
Q. Who was that?
A. John Bruce-Smith.
Q. Which matter did you raise with him?
A. The anti-slip guard .
Q. Do you recall when it was that you raised that with him?
A. It was very soon after I noticed that it was missing.
Q. How did you raise it with him?
A. By email.
Q. What did you say?
A. I asked him for advice on who was responsible for repairing such things and to get back to me.
Q. To get back to you?
A. Yes.
Q. At the time you sent the email, where was he?
A. He was in California.
Q. Did you have a response?
A. Yes, I did. The response was--
OBJECTION (McCULLOCH)
……
Q. Mrs Olsen, in relation to the email that you sent, to assist recovery, if it is at all possible, are you able to give us any particular information such as passwords or files that may indicate where it has been retained on the computer, if it has been retained?
A. I have no idea whether it has been retained. It would have been under "building management" or perhaps "lease documents".
Q. Lease documents?
A. Yes. Other than that, I have no idea, I'm afraid.
HIS HONOUR: Q. Did you have a folder for your emails to and from Mr Smith, a separate folder?
A. No.
[I interpolate that a call on the defendant, made as on subpoena, for such emails produced none]
MAXWELL: Q. You received a response in any event, did you, from Mr Smith?
A. Yes.
Q. As a result of that response, what did you do?
A. I went to see David Niven.
Q. Who is David Niven?
A. He was the, so far as I was aware, the building management gentleman that I dealt with at Mainland.
Q. Had you dealt with him before?
A. Yes.
Q. In what respect had you dealt with him?
A. Such items as paying rent, general items to do with sub-letting the building, painting the outside of the building, putting our Fingerscan - taking our Fingerscan sign off, painting over the faded area where the sign had been, painting the inside of the building in the office area.
Q. When was it that you went to see David Niven, do you recall?
A. I don't recall the exact day. It would have been very shortly after I received the request from Mr Bruce-Smith.
Q. And then by reference to the date of the accident, how long before that was it?
A. Oh, several months perhaps .
Q. Where did you see David Niven?
A. In his office.
Q. Where was that, in relation to your building?
A. That was right next-door. It was a short walk around the corner and up the staircase.
Q. What did you say to him?
A. I asked, I told him what had happened.
Q. Can you say what happened, as if you are having a conversation now?
A. Okay. I told him that there were several items that needed repair so far as work was concerned , one of them was the anti-slip guard on the stairs, the other one was the poor lighting in the stairwell and in the garage area and I needed a, I was requested to get a copy of the lease to determine whose responsibility it was to repair those items.
Q. What did he say?
A. He said he didn't have a copy there, we had several copies in the office and as far as he was aware, it was Identix's responsibility to maintain those items.
Q. What did you do then?
A. I went back to my office and I emailed the answer back to John Bruce-Smith.
Q. Did you receive a response to that email?
A. No, I didn't.
[Likewise – no such emails were produced on the ‘subpoena’]
Q. In the email, that's the final email that we have just discussed, did you send anything to John Bruce-Smith, apart from the agent's reply, sorry, Mainland's reply?
A. I located a partial copy of a lease, but it did not have everything in it and I think I posted that to him. I can't be clear.
Q. Did you hear anything more from John Bruce Smith in relation to those items?
A. No.
Q. Prior to 8 August 1998 - 4 August, sorry.
A. No....
...
MAXWELL: Q. And from the time that you spoke to John Bruce-Smith and following that conversation with Mr Niven and the final email to John Bruce-Smith, was anything done in relation to those complaints that you made, that is the lights and the anti-slip device on the stairs?
A. Nothing was done by Identix.
Q. I'm sorry?
A. Nothing was done by Identix.
Q. Was anything done at all in relation to those complaints, by anyone?
A. Yes.
Q. Before 4 August?
A. Yes, yes.
Q. What was done?
A. I personally climbed a ladder and fixed the exit sign at the bottom of the stairs .
Q. How did you fix that?
A. I replaced the fluorescent bulb that was inside and I also replaced the starter that activated the fluorescent bulb .
Q. That was the exit sign?
A. That's right.
(Mr McCulloch applied for photocopy access to exhibit P2; access granted.)
……..
MAXWELL: Q. Mrs Olsen, after you sent the email to John Bruce-Smith and subsequently sent by mail a partial copy of the lease, did you have any discussions with anyone else in the office in relation to the problem with the stairs and the lighting?
A. Yes.
Q. Who was that?
A. John Parselle.
Q. What was his position there?
A. Yes, he was the managing directors [sic].
Q. What was your responsibility to him, at that time?
A. I reported directly to him.
Q. Do you recall when you had the conversation?
A. A few months before the accident.
Q. What did you say to him and what did he say to you?
A. I said, "John, we have got some issues in the office that we need to resolve, several issues"; they were the lighting in the stairwell, lighting in the garage area and the slip guard that had come off the stairs. "We need to sort them out, we need to get them fixed".
Q. What did he say?
A. He said to me, "I don't have the authority to authorise any repairs of that nature". He was leaving the company, "Refer them to John Bruce-Smith".
Q. Did you have any discussion thereafter with John Bruce-Smith?
A. Yes, I did.
Q. Was that by email?
A. Telephone.
Q. How long after the conversation with Mr Parselle was that?
A. Very shortly after.
Q. What did you say to him and what did he say to you?
A. I said, I related the conversation I had with John. I'd asked him, I said, "Hi John", this is John Bruce-Smith, "Hi John, how you doing? We need to get some issues sorted out over here with relation to repairs to the lighting in the garage, the stairwell, repairs to the stairs" and he said, "Trude, there are no funds at the moment for these, we are in the middle of taking over another company, it's the least of my worries, it will have to wait".
Q. Do you recall when that conversation took place?
A. It was a few months before, it was very shortly after John, I spoke with John Parselle.
Q. Did you have any conversation either with Mr Parselle or Mr Bruce-Smith about whether the job was a big job or a little job or was expensive or not expensive? If you don't recall then--
A. No, I don't recall whether that was discussed at all.
Q. Then between the time of that last conversation then with John Bruce-Smith and 4 August 1998, did you have any conversations with anyone else at the office about those matters?
A. Yes, several of the employees.
Q. Did you have occasion to discuss the matter, the same matters, with Mr Parselle again after the conversation with John Bruce-Smith?
A. I don't recall exactly. I may well have done.
HIS HONOUR: Q. Did you say "several of whom"?
A. Several of the employees, yes.
MAXWELL: Q. Again between the time of the conversation with John, the last conversation that you mentioned with John Bruce-Smith when he said there were no funds or words to that effect, and 4 August, were any repairs effected to the stairs?
A. No.
Q. In relation to the lights in the stairwell, as I understand it, there are two areas of lighting, there was one area where there were two fluorescent light bulbs?
A. Yes.
Q. And the exit sign ?
A. That's right .
Q. I think you indicated that the exit sign you had replaced the fluorescent tubing?
A. Correct.
Q. Did that material affect the lighting in the stairwell?
A. Oh, with minimal effect.
Q. What happened between the date of that last conversation you've just referred to and 4 August in relation to the two fluorescent tubes, the other set of lighting? Did they remain the same, were they repaired?Q. What was the lighting like after you effected that repair?
A. Still very dim.”
A. No, I actually think that the one that was flickering ended up going out altogether. I can't recall .
- [transcript pages 31 and following]
1966-1969
The plaintiff’s relevant medical history
18 The plaintiff’s medical history as relevant is that she was investigated between 1966 and 1969 for thyroid problems. She was diagnosed for Graves disease which is hyperthyroidism. The symptoms were shakiness, palpitations, quick metabolism and bulging eyes. After that diagnosis she was given medication to control the hyperthyroidism.
Mid 1992
19 Much later and shortly after her second child was born in mid 1992 she was treated, then in New York, with radioactive iodine treatment in an attempt to control her thyroid problem. The effect of this treatment was to reverse the position and give her hypothyroidism. Her symptoms of this were tiredness, lethargy and putting on weight for no apparent reason. She was given medication to control this having, prior to the radioactive iodine treatment, been consistently taking medication for the hyperthyroidism, which problem had been under control with that medication. Following the radioactive iodine treatment the medication that she was prescribed did not immediately successfully control the hypothyroidism, but after more than a year started controlling this condition. As a consequence of that treatment she still has regular monitoring sessions for the hypothyroidism every three to four months and if the doctor requires it then she sometimes has to increase the dosage of Oroxine which controls the condition. Her evidence was that the hypothyroidism is essentially under control presently with medication. It had not been under control completely since the initial period following the treatment in New York and she has had to reduce or increase medication dependent upon the blood results during the monitoring sessions every three months or thereabouts.
June 1998
20 Her evidence was that in about June 1998 she had a pelvic ultra sound having experienced severe period pains, pain associated with ovulation, ‘tummy pains’ and slight back pain. Her evidence was that the back pain was associated with the period pains. After the pelvic ultrasound she was prescribed Voltaren and given advice to go back on the pill which she did and which somewhat helped the problem.
21 Her evidence as to her health immediately before 4 August 1998 was: "I was fine". [transcript 41]
The specific incident alleged
22 The plaintiff’s evidence was as follows:
MAXWELL: Q. On 4 August 1998 did you attend work with Identix as usual?
A. Yes.
Q. What time did you arrive?
A. Approximately 7.30am.
Q. What were you doing that morning?
A. I was attending to my usual duties and I had to move some stock from the reception area into the cage in the basement.
Q. What did you do to do that?
A. I waited until Jim Kosyfas arrived in the office, so he could help me and we proceeded to unpack the pallet of boxes of stock and take it down into the cage.
Q. Had you been on that stairwell any time that day before that?
A. Yes.
Q. In what circumstances was that?
A. After I parked my car I came upstairs.
Q. On the way up the stairs what had you noticed, if anything, about the lighting?
A. It was extremely dim. I think that the other light was out.
Q. What lighting was actually working there, to your recollection?
A. It would have been only the exit light, to my recollection .
Q. And exit light is right down the bottom of the stairs?
A. That's right.
Q. What did you do then to remove the stock to the basement area?
A. Physically carried it downstairs.
Q. How many pieces of equipment did you carry?
A. Between four and five, mostly four, four boxes at the time.
Q. Are they small, large boxes?
A. I guess average size, small boxes.
Q. You are indicating with your hands there?
A. (Indicating) About that, it would be about.
Q. Each box is that wide, is that what you are saying?
A. Yeah, a little bit wider than my body width.
Q. About 15 inches. Can you indicate one more time?
A. About that wide. (Indicating.)
Q. Fifteen to 18 inches?
HIS HONOUR: Q. How high?
A. Probably about that high. (Indicating.)
Q. See there is a brown box up there, is it something like that, or smaller than that? There is a red one above it.
A. A similar width and probably a greater length.
Q. The brown one?
A. Yes.
HIS HONOUR: You can describe it for the transcript.
MAXWELL: Q. The brown box described is approximately 15 inches?
A. Sorry, it is actually probably closer to the white one next to it.
HIS HONOUR: I don't know what is in it. We will have to be careful, the white one, Court officer. Perhaps I will ask my research assistant, who may have an advantage.
HIS HONOUR: Perhaps that can be left with someone so the measurements can be given and this witness has indicated that approximately as the measurement.MAXWELL: Perhaps we can do that some other time. It is a VHG box.
[the box was later measured at 45 millimetres by 34 millimetres as to length and breadth and 16 millimetres depth – transcript 91]
MAXWELL: Q. Having a look at the box now here on the bar table, is that the approximate size?
A. Yes.
Q. How many of those did you have?
A. Between four and five.
Q. You were taking those boxes to the cage in the basement below?
A. That's right.
Q. Did you do that by accessing the stairwell?
A. Yes.
Q. From where?
A. From the reception area.
Q. Were you first to go down or had Mr Kosyfas gone down before you?
A. I don't recall.
HIS HONOUR: Q. Were they in the reception area in some fashion? You didn't have to bring them down to reception?
A. Yes, they were on a pallet.
MAXWELL: Q. Can you explain what happened then as you accessed the stairwell?
A. I, carrying the boxes down, came to the landing , felt for the step and slipped off the stair.
Q. When you say "the landing", that's the landing we have seen, the only landing at the stairs?
A. At the bottom of the first flight, yes.
Q. You felt for the step, you say?
A. Yes.
Q. And slipped?
A. Yes.
Q. Do you recall what foot it was that slipped?
A. I can't be sure.
Q. Do you recall on what you slipped?
A. I slipped off the edge of the step.
Q. In relation to that photograph that I showed you, A, do you remember the series of three photographs?
A. Yes.
Q. A1, 2 and 3, you pointed out you put an X on that photograph?
A. Yes.
Q. I think it was on A1. In relation to that photograph, are you able to tell us where you slipped?
A. On the step that I marked with an X.
HIS HONOUR: The X is on the A2.
MAXWELL: My apologies, thank you, your Honour.
Q. What happened to you then?
A. I landed at the bottom of the stairs.
Q. How did you feel at that stage?
A. A bit shocked. I felt bruised.
Q. Where did you feel bruised?
A. My, in my lower back, the tailbone area.
Q. What happened to the boxes?
A. They were everywhere, all over the floor.
Q. Whilst you were in that position, did someone approach you?
A. Yes, Jim Kosyfas was coming down with another load of boxes behind me and--
Q. What was his position in the company?
A. I believe he was a technician. He effected some repairs.
Q. When he came down the stairs, where were you?
A. Sitting on my backside at the bottom of the stairs.
Q. Did you have a conversation with him?
A. Yes.
Q. What did you say to him?
A. He said to me, you know, "What happened to you?" I said, " I fell down " and he said, "Are you all right, mate?" and I said, "Yeah, I think so."
Q. What happened then?
A. I stood up, made sure I was okay to walk around and continued on with the job.
Q. So you picked up the boxes?
A. Yes.
Q. What did you do with those?
A. Put them into the cage.
Q. Did you go back up stairs then?
A. Yes.
Q. Did you speak to anyone?
A. Yes.
Q. Who was that?
A. John Parselle.
Q. Did he say anything else about that?Q. What did you say to him?
A. I told him, I said, "John, I have fallen down the stairs putting the boxes in the cage". He said, "How are you feeling?" I said, "Oh, I'm feeling a bit bruised, bit sore."
A. Yes, he said, "I think you best go see the doctor."
[transcript 44 and following]
23 It is common ground that in August 1998 Mr Bruce-Smith was in California. He had been there for some time.
The attendance upon Dr Kucera - 4 August 1998
Following the alleged incident
24 The plaintiff gave evidence that approximately two hours after the accident she went with her husband to see Dr Kucera. She drove home and her husband drove her to the doctor. Her evidence was that she explained the problems which she was having to Dr Kucera, that she was feeling pretty bruised in the lower back and did not go back to work that day but believed that she went back to work the next day. She had not stayed the day after the accident for the entire day but only for part of that day. Some x-rays were taken in relation to the lower spine and after her return to work she had a CT scan of her lower back. She started some physiotherapy. She had no benefit from the physiotherapy, but continued to see Dr Kucera. She continued to work full-time in the next week or two after the accident but was having difficulty coping with the work.
22 August 1998
25 The plaintiff’s evidence was that on this day she was admitted to Hornsby Hospital. From the time of the accident up until 22 August her pain had worsened a great deal. The occasion which led to her admission at the hospital was that she had collapsed at home. As she rose out of bed she felt extreme pain in her lower back and down her right leg feeling ‘like a hot poker’ and being a violent shooting pain. She was unable to stand and collapsed in the bedroom. Her husband took her to Hornsby Hospital and she was there for about six days. During that time she had a further CT scan of her lumbar spine and an MRI scan of her lumbar spine.
26 August 1998
26 On this day the plaintiff signed a claim form. [Exhibit P5]. The document identifies what happened as "fell down flight of concrete stairs carrying out duties in office". [transcript page 51]
27 Also on the same day an employee's report of injury form was signed by Mr Bruce-Smith as financial controller of the defendant. [Exhibit P6].
28 August 1998 - 20 September 1998
28 On 28 August 1998 day the plaintiff was transferred to the Sydney Adventist Hospital [the “San”]. She there came under the care of Dr Dixon and has remained under his care up to the present time.
29 The plaintiff’s evidence was that the treatment which in general terms she had during her hospitalisation at the hospital involved pain relief, hydrotherapy and light physiotherapy.
30 Her evidence was that upon her discharge from the San she was feeling “slightly better” than when she had been admitted.
Denial of any previous fall prior to 4 August 1998
31 The plaintiff’s evidence was that she had not had any other fall apart from the fall which she alleged had taken place on 4 August 1998. [transcript page 52 ]
The period from late September on
32 The plaintiff’s evidence was that after she was discharged from the San she was feeling very weak and did very little around the house. Initially she was assisted by her husband and then she had a nurse. For a short time her mother had also assisted, she thought whilst she was at the San and for a few days after her discharge.
33 The plaintiff’s evidence was that was that at the hospital she was not able to look after her own self-care. Her husband had helped her with her showering at the hospital on a few occasions and after she returned home she had to be assisted with her personal care and showering and so on. She never returned to work.
6 October 1998
34 The plaintiff’s evidence was that on or about 6 October 1998 she received correspondence to the effect that her employment services were to be terminated.
6 November 1998
35 On this day the plaintiff signed a deed of settlement and release with the defendant which provided for a full and final payment to her of certain moneys and by which she released the defendant from all claims excluding any claim she may have under the Workers Compensation Act1987 (NSW) or the Workplace Injury Management and Workers Compensation Act 1998 (NSW) arising out of the injury she suffered at the company's premises on 4 August 1998. (Exhibit P7)
November 1998
36 In this month the plaintiff was referred to Combrook Pty Ltd, a rehabilitation provider, for occupational rehabilitation. She was still, on her evidence, feeling extremely weak and advised that the rehabilitation provider was not prepared to proceed with rehabilitation at that time.
21 December 1998
37 On this day the plaintiff consulted Dr Little in the Gosford area. He was unable to give her any real assistance.
March 1999
38 In this month the plaintiff began receiving assistance from a district nurse and this nursing attention continued until about October 2001 when the insurance company refused to pay for any more of this nursing assistance. The plaintiff’s evidence was that the nurse had attended to things like her personal hygiene regime, monitoring her pain medication, ensuring that she had some form of exercise and also some counselling. Since the nurse’s departure, Mr Olsen has taken her place.
May 1999
39 Also in May 1999 the plaintiff saw Ms Julia Fleming who is attached to the Sydney Pain Clinic. This had been proposed as a pain management exercise with cognitive exercise and strategies. She saw Professor Cousins associated with the Sydney Pain Clinic but there had not been any other than ‘slight’ improvement in her condition at that time. Dr Cousins gave her some facet block injections which helped for the first two days. Prior to those injections she was experiencing extreme lower back pain and then pain in both legs. After she had the facet blocks she noticed a problem of incontinence and had certain tests. She saw Dr Coombes, a neurological surgeon, in this regard.
40 Ultimately the plaintiff did undertake the ADAPT Program which covered a five-week period and during which she was put through an exercise program that was developed for her as an individual to attempt to increase body strength muscle development. She was encouraged to reduce pain, medication tablets and to use other ways of controlling the pain. She had a lot of difficulty completing the exercises and noticed that she had lost the majority of body strength which she had developed over a number of years and gave evidence that as far as she was concerned her muscles were non-existent.
July 1999
41 In this month the plaintiff began seeing Dr Konc a chiropractor. He gave her infra-red treatment, light massage and light neck manipulation for a period of months. She had that treatment about two or three times a week and had only slight benefit from the treatment. At this time the medication she was taking having been prescribed by Dr Dixon included ‘Toradol, Mersyndol, Voltarin, Panadeine Forte and Valium’.
December 1999
42 In this month the plaintiff saw Dr Robertson, a psychiatrist. His report includes the following:
- “I think that your client has suffered an Adjustment Disorder with depressed mood, as a result of the accident of August 1998, and the medical and social consequences of the accident. Chronic pain, inability to work, inability to take part in her usual leisure and sporting activities, and the loss of her sexual relationship with her husband, have been the main factors which have precipitated and perpetuated her depression.
- Another factor which has fed into her depression has been Abnormal Illness Behaviour, of the illness-denying type. It has been very difficult for her to accept that she has an injury which is causing severe limitations.”
43 The plaintiff’s evidence was that no time from the time of her alleged accident had she had any special treatment for any psychological or other type of emotional problem. She gave evidence to the following effect:
- “ Q. How have you felt generally about the disabilities that you have, emotionally I am talking about?
A. I have difficulty coping with my limitations, I don't think I have come to terms with it. My approach to a lot of things has changed and in an emotional way. I don't deal with things very well
- Q. Had you at any time over the course of your treatment felt you have had any psychiatric problems?
A. No
- Q. Depression?
A. Perhaps" [transcript page 63]
Early 2000
44 In early 2000 the plaintiff saw Dr Blum, a consultant neurosurgeon. On the first occasion when she saw Dr Blum she was in a lot of pain. In due course and after he recommended that she undertake treatment with a muscle relaxant Baclafin and had discussed with her the prospect of using an epidural stimulator, this procedure was undertaken.
45 Before Dr Blum was prepared to undertake the procedure it was necessary for the plaintiff to see other doctors. At about the same time she was seeing Dr Shand, a psychiatrist organised by the defendant’s insurer. In March 2000 she saw Ms Jacqueline Kalmar, occupational therapist, about rehabilitation treatment. In April 2000 she saw Dr Mahoney an orthopaedic surgeon. She also undertook a number of tests with Mr Henry Luiker.
46 She also saw Dr Ireland on behalf of the defendant on 13 March 2000 and Dr Billet on 16 October 2001.
47 Dr Blum carried out the procedure on 19 March 2001.
48 Dr Blum described the procedure in evidence as follows:
- “... Basically the patient is placed on the operating theatre face down. A local anaesthetic is put into the skin where the stimulator is to be located, then the patient is given quite heavy sedation, to make it relatively pain free, and a small hole is made in the spinal column bone, and the stimulator, which is about the size of a small Paddle Pop stick with a wire coming out of it; is fed between the face of the spinal cord and the bone on the outside of the covering of the spinal cord with the dura. The patient is then woken and an external stimulus is applied to the electrode, to check that the electrode is in the correct position, one leg or the other leg or both legs and the back. Then the patient is put back to sleep and is sown up and returned to the ward. The procedure is about an hour's procedure and then the rest of that - usually a week it is trialled, with the metronics technician -- M ED to get the best sort of stimulation, and then the patient is seen daily, to determine whether this works or doesn't. If it doesn't, the patient is returned to theatre, the wound is opened and it is extracted out. If it does then the patient is put to sleep, this time and the electrode bugs are tunnelled under the skin to an abdominal pocket which is under the skin, which is outside the abdominal cavity just in the fat of most people, or outside the muscle and the two are connected up. The patient then uses the stimulator by an external remote control which is put on the skin, which switches the machine on and off and you can change the parameters of the stimulation.”
Q. And the battery I think is on the left-hand side of the abdomen?“MAXWELL: Q. Just briefly, Doctor, in this instance the insertion took place in the thoracic spine in T7
A. Yes it's inserted by x-ray at the time.
A. It doesn't - we usually put it - if the patients have not had their appendix out, we put it on the left side. If they have had her appendix out it's on the right side.”
[transcript page 83-84]
49 The plaintiff gave evidence that after the stimulator was permanently implanted she noticed “very slight benefit” and that over the next couple of months the benefit did not increase. She had been hoping for better. Using the stimulator gave her a slightly reduced pain level, but it was not as much benefit as she had thought or had hoped for. That had remained the case right up until the present time. Over time the benefit had decreased and the plaintiff is currently taking pain medication in the form of Voltarin, Valium, Mersyndol, and Toradol.
50 The plaintiff is still presently on Oroxine. There has not been any change in her problems associated with the hyperthyroidism which has been continually monitored. She does not propose to continue with the stimulator. The incontinence problems have continued and remained the same.
51 The plaintiff’s evidence was that she was in extreme pain at the moment on the outside of both of her legs and in terms of her lower back, which pain was with her all the time although there are times when it was better than at other times. There were no times when she had no pain. On a level of 1 to 10 (1 being the least painful, and 10 being the most painful) in relation to her back the most painful would be at 8 and the least painful would be at 4; in relation to her right leg, the most painful would be 8 and the least painful would be 3; in relation to her left leg the most painful would be 6 and the least painful would be 3.
52 Her evidence was that at no time since the accident had she felt like she was capable of working. Her evidence included evidence as to her normal day in the following terms:
Q. When you say back to bed what time would that be?“A. A normal day. A normal day is waking about 4am because I need pain medication. Waiting until the pain is bad enough that I can't stand it any more and then taking the medication. If the pain killers have kicked in enough I will attempt to get out of bed to get breakfast for the children or to at least see them off to school. Most often back to bed and by that time it would be time to take another pill, I guess, depending on the pain levels.
A. About 8.30. Eating breakfast, waiting until the pain killers actually kick in and then attempting to do some kind of exercise, whatever it may be, to encourage me to do something.
[transcript page 71 ]
The plaintiff’s employment situation since 22 August 1998
53 The plaintiff gave evidence that she had not worked at all since her admission on 22 August 1998 to Hornsby Hospital.
54 She has had no personal intimacy in terms of sex with her husband since the day of the accident.
55 In December 2001 the plaintiff and her family travelled to Melbourne and stayed with relatives and friends there over the school holiday break. The house in which the family had been living for many years at Cherrybrook had been rented. She and her husband and her children have recently moved to Queensland where they are living with her husband's relations, the intention being to return to Sydney shortly. Mr Olsen later gave evidence that the move to Queensland was simply pending the hearing of these proceedings.
The contemporaneous medical records
56 An important consideration of high significance in terms of the findings of fact in this case concerns the documented histories to be found in the medical records which went into evidence and which include hospital records.
57 A transcription of the medical records of Dr Kucera was admitted into evidence.
58 Importantly the entry for 4 or 6 August 1998 [it is difficult to decipher which date appears from the original] commences: "Sudden onset of lower back pain 2 days ago, no precipitating factor…" [emphasis added]
59 Dr Kucera was not called by the plaintiff to explain this entry.
60 The plaintiff denied that she had told Dr Kucera (whether on 4 or 6 August) that she had had a sudden onset of lower back pain two days before [transcript 115]. Her evidence was that it was on 4 August that the attendance took place. She denied that she had told Dr Kucera that there had been no precipitating factor [transcript 115]. She was not able to offer any explanation as to how this note could have come to read as it did.
61 The Hornsby Hospital records are also violently at odds with the plaintiff’s version of what had actually happened. The admission record of 22 August 1998 under the name Dr Koo commencing section dealing "History of Present illness” is as follows:
- "35 -year-old female. 3 weeks ago sudden onset of lower back pain - cause unknown/woke up with it . Seen by local medical officer…" [emphasis added]
62 The same hospital records, again with the date 22 August 1998 but this time under the name Kuoh who was presumably a doctor, although this is not clear, include the following:
- “3 weeks history of lower back pain with right buttock pain and anterior leg pain down to toe. Much worse now. Unable to mobilise. No sphincter disturbance. No history of injury. Onset while getting out of bed ". [emphasis added]
63 The plaintiff gave evidence to the following effect:
- “Q. Well, certainly do you agree that you told neither Dr Koo, who seems to have seen you at adult admission or Dr Kuoh that you had an injury falling downstairs?
A. I can't be absolutely sure"
[transcript page 118]
64 A later reference in the Hornsby Hospital records which appears to be a record of notes by a physiotherapist is dated 27 August 1998 and commences:
- "1610 Physiotherapist-35 -year-old woman admitted with sciatica. Sciatic pain began three weeks ago - no specific incident …" [emphasis added]
65 The plaintiff was unable to be certain as to whether she could agree that when asked by the physiotherapist, she had made no mention of any specific incident, her evidence being that she was on such morphine that she did not know what was going on. [transcript page 118]
66 The same entry of 27 August 1998, part of which has been extracted above, continues after some further information about inability to do extension exercises and some other matters as follows:
- "Nil previous episodes of back pain, ok with both pregnancies. Had a fall on stairs at work three to four months ago - only bruising in back, nil problems". [emphasis added]
67 The plaintiff steadfastly denied that she had had a fall down some stairs at work earlier in the year [than the early August alleged fall]. [transcript page 120]
68 The same hospital records include what appears to be a referral or note from Dr Brooks to Dr Cook which does not mention any event, accident or precipitating incident. Likewise a consultant’s report apparently from Dr Cook in neurology reads inter alia :
- "Acute back pain referred down anterior aspect right to lower leg to knee, shin and right groin. Symptoms now three weeks, nil relevant past history, onset acute, no event …" [emphasis added]
69 The plaintiff could give no explanation as to how this could have been in the history. She could not recall telling Dr Cook matters consistent with what he had written. She could not suggest anything which she told him that might have led him to write "no event". [transcript page 120]
70 The physiotherapist Ms Yong had written [see page 8 of the medical record transcription notes] inter alia:
- "She reports no previous back problems; and a fall down stairs three to four months ago with no ill effects." [emphasis added]
71 The plaintiff could not recall having said this to the physiotherapist.
72 Also placed into evidence were the San medical records (by transcription, exhibit P6; originals P16A).
73 The first entry appears to have been taken by Dr Singer and commences:
- "35 year-old female. 3 week history of back pain - lower lumbar severe, radiates down right thigh to shin. Fell down stairs at work 3 months ago - no immediate problems… Pain became very severe at home 6 days ago…". [emphasis added]
74 The plaintiff gave evidence to the following effect:
A. That is what it would appear, yes"“Q. … it is clear is it not that on 28 August when you went to the Sydney Adventist Hospital you appear to have told a Dr Singer that you fell down the stairs at work not on 4 August but some three months prior to 28 August?
[transcript page 122]
75 The last page of the transcription appears to be a note to Dr Fearnside reading inter alia:
- "Thank you for seeing this patient with right sciatica after fall ( three months ) leading to back injury then three weeks ago right sciatica with low back pain,…" [emphasis added]
- [The ‘referring medical officer’ section is not filled in on the original]
76 The hospital records also include a note from Dr Fearnside of 29 August 1998 reading inter alia:
- "… Fell at work (office manager) 3 months ago , down several stairs-bruising. Low-level back pain (continued working) until three weeks ago-exacerbation worse one week ago when arose from bed - to Hornsby Hospital". [emphasis added]
77 Although the plaintiff gave evidence that she was under heavy sedation when she was admitted to the San and gave essentially the same evidence in relation to Hornsby Hospital and its records, she gave evidence that she could not be certain that it was she who gave the accounts. [transcript page 123]
Evidence of Dr Dixon
78 Dr Dixon gave evidence that he took a history from the plaintiff three days after she was admitted at the San when he had to ask her some specific questions and she told him that she had fallen down stairs at work some three weeks prior and had bruised her lower back and the injury had occurred at a firm called Identix at Chatswood at 10 o'clock in the morning. This was the occasion when the Workers Compensation and Third Party Acquaintance Form was signed by the plaintiff at her bedside. Dr Dixon gave evidence to the following effect:
Q. And it's a document that…you filled in probably on that date?
A. Yes.
Q. And would it have been done at the SAN?
A. I would have taken the form in when it became part - she was workers comp. I realised that I had to get a rapid report off because she had been hospitalised and was claiming workers comp and so I needed her consent to do a report so I've taken that to the bedside and filled it in and she would have signed it so that I could send the report.
Q. So, really, it was a specific trip to get the - a consultation--
A. It was a consultation, yeah.
Q. --with her for the precise purpose of filling in this worker's compensation form?
A. When she was presented in casualty she was in extreme pain and she was accompanied by her mother on the trolley and the mother was extremely anxious that she have hospitalisation and immediate treatment and so I asked her, the resident, to admit her to hospital if we had a bed available and I don't know how long she stayed down in casualty but as soon as I was up in the ward it became apparent that she was worker's comp and so we had to get a document to whoever the insurer was so it's a consent form
……
Q. And doubtless you would have told her what you had to do?
A. Yes .
Q. Yes?Q. And you had to do it in a hurry?
A. Well, the hospital fees were, you know, per day.
A. Mm”
[transcript page129] [emphasis added]
79 Some questions arose during argument in relation to a section of the San hospital records. Dr Dixon was not taken to this section. It is to be found on the original exhibit P16A which section is said by the defendant’s counsel to be Dr Dixon’s notes. Just above this section of these notes one finds in a different handwriting the words: "D/W D Dixon" meaning "discussed with Dr Dixon". Immediately below this one finds a section which appears to have been handwritten in the same handwriting relevantly reading:
- "28 August 1998. History noted: 3/m [meaning three months] fell down slipped down concrete steps…"
80 Towards the end of the note there is a signature which the defendant’s counsel submitted is that of Dr Dixon - the defendant’s counsel in this respect took the Court to a comparison with Dr Dixon’s signature to be found on exhibit D3 - the Workers compensation Form.
81 Following this note one finds in a different handwriting the words "S/B (meaning ‘seen by’) Dr Dixon as document[ed] above." [emphasis added]
82 In the result the defendant’s counsel submitted that Dr Dixon is shown by these records to have actually taken a medical history on 28 August. The plaintiff’s counsel submitted that the signature may well be that of Dr Dixon although it was not clear and made the point that Dr Dixon himself had given evidence that the first history he had taken was when the Workers Compensation Form was signed.
83 Whilst not determinative of the case it does seem to me that the plaintiff having tendered the San records, they are before the Court for all purposes and the Court is entitled to hold that these notes were notes made by Dr Dixon. Whilst the signature is not altogether clear, it is very likely to be that of Dr Dixon when seen in context with the notes which precede this section and the note which follows this section.
Evidence given by Dr Blum
84 Dr Blum’s first formal examination led to his diagnosis of the plaintiff having a very stiff lumbar spine with severe paravertebral muscle spasm but no other objective signs of damage. She had a lot of straight lumbar spine lordosis but there were no major lesions present. The significance of the lumbar lordosis was that there was something going on in the lumbar spine and the muscle spasm was an indicative type of situation. There is normally a curve inwards in the lumbar region which is called a ‘lordosis’ and the loss of that lumbar lordosis is caused by that muscle spasm. Whilst it is not impossible to fabricate this, it is not the sort of thing people can fabricate easily.
85 During the time when the simulator was trialled externally following the implantation the plaintiff appeared to get good relief of her pain although not complete relief. Following the permanent implantation he saw the plaintiff in July 2001. His best recollection was that the plaintiff had improved as at the time when the stimulator had been permanently implanted having about 60 percent reduction in the pain. However when he saw her in July 2001 her improvement was something less than that, having reduced to about 40 to 50 percent. It had dropped effectively in the order of 10 or 15 percent from the improvement apparent immediately in the early stages after the implantation.
Evidence given by Mr Olsen
86 The plaintiff’s husband, Mr Olsen gave evidence.
87 Mr Olsen is currently unemployed. From 1990 until 1996 he lived in New York with his wife, they having been married in 1987. He worked on Wall Street. Upon the families later return to Australia he sought employment with Tullett and Tokyo, the company with whom he had been employed in the United States. In answer to the question as to what his role was that company in Australia was he said:
- "Just consulting, I was not…full on, trying to find a position for me and I was basically helping out with whatever I could fit in as far as trading or broking".
[transcript page 150]
88 He remained with the same company until late 1988 or around then and his position had remained the same as a consultant right through.
89 His evidence was that prior to 4 August 1998 his wife had excellent health. Although he knew that she had hypothyroidism, that had never become a problem the whole of the time he had been with her.
90 Mr Olsen gave evidence to the following effect:
- “Q. Prior to the 4 August 1998 to your knowledge had your wife been involved in any accident ?
A. Nothing that I can remember ."
[transcript 151]
91 On his evidence his wife had not prior to 4 August 1998 made any complaint to him whatsoever in relation to any back problems.
92 Mr Olsen gave evidence that on 4 August 1998 he was at home entertaining his parents-in-law and at about 10.00 or 11.00 am he received a telephone call from his wife who said she had had an accident and asked him to make a doctor's appointment for her with Dr Kucera. He made that appointment. He received another telephone call from Mr John arselle.Parselle. He informed Mr Olsen that there had been a problem in the office and that his wife had had a fall. He said that he believed that Mrs Olsen had contacted Mr Olsen and was on her way home. He said that he was a bit concerned as to how she was and that she did not look too good. He asked Mr Olsen to keep in touch and let him know how Mrs Olsen fared as soon as he could.
93 Mr Olsen's evidence was that his wife then arrived home and he drove her to see Dr Kucera. He was present during the examination. He heard the conversation which occurred in relation to the examination and history. His wife had told Dr Kucera that she had fallen down a flight of stairs and landed on her back. His wife had pointed to the spot on her back. She had said that she had been carrying some stock in her hands and slipped and landed on her back. He did not recall Dr Kucera writing notes. Dr Kucera examined his wife and he stayed during the whole examination. He knows that the notes of Dr Kucera record that there was no incident mentioned at the time, or something to that effect, and found out about that quite some time down the track he thought when they had attended the arbitration hearing.
94 Dr Kucera gave him the certificate of inability to work exhibit P14.
95 Mr Olsen gave further evidence that every morning thereafter the plaintiff had complained of a pain in the lower portion of her back. He noticed that it was getting worse over the first week and it deteriorated over the fortnight, becoming drastically worse. [transcript page 156]
96 Towards the end of August he was watching television on Saturday morning with his children when the plaintiff came crawling through the door crying. She said that she could not move and was in pain and he drove her to Hornsby Hospital. When they arrived he was there with his children and a history was taken. He believed that he had given the history to the junior nurse in casualty. His wife was flat down on her face at the time. His children were all over the place and he was endeavouring to watch his children as well as his wife as well as to give the history. He gave evidence to the following effect:
- “ Q. What did you tell them in relation to the history?
A. Well there is not much I could tell them about what would (sic) happen. She had come through the door, and I had to give them a description of the sudden onset of what the problem was. I just gave it to the best of my ability. They said do you know why it happened and I said yes I did. It was very, she had a fall in the office a couple of weeks ago and as far as I know they would have written that down."
[transcript 157]
97 He had not seen anything being written down at the time as he was too busy holding his wife and endeavouring to attend to his children, particularly his son who was so much out of control at that age that he took 100 percent of Mr Olsen's attention.
98 Mr Olsen gave further evidence of having continued to visit his wife while she remained at Hornsby Hospital and having been there for very long periods. His evidence was that his wife was heavily sedated with morphine. He gave the following further evidence:
- “Q. Over a period of time did you speak anyone else about the circumstances of the accident at the hospital?
A. At the hospital, do you mean how it happened?
- Q. Yes?
A. At Hornsby Hospital nobody came to visit so I didn't speak to anybody about that as far as, a couple of doctors would turn up which were on duty I think and they would ask me, I think Cook brings a bell. Dr Cook, I told him she had a fall down the stairs. Everyone wanted to know the full story but I cannot recollect.
Q. Do you recall Trudy speaking to anyone about the circumstances of her accident?
A. No I don't remember it. She was just in ga ga land on a morphine trip. She was in a lot of pain."
[transcript page 158]
99 Mr Olsen gave evidence that he accompanied his wife when she was admitted to the San. He was asked whether he or his wife had a conversation about the circumstances of the accident [on or about arrival]. His answer was "No not to my recollection."
100 On the day when his wife had been transferred to the San he had stayed with her the whole of that day and that night. Mr Olsen gave evidence to the following effect:
179 To my mind there is no special significance to be attributed to the suggested failure by the defendant to call Mr Parselle. On the evidence he is no longer an employee of the defendant and is in the United Kingdom. No evidence was adduced from the plaintiff to the effect that he had witnessed the fall. All that one has is evidence given by Mr Olsen to the effect that Mr Parselle telephoned him. The substance of Mr Olsen's evidence as to this telephone call has already been set out. I reject that evidence as unreliable and do so albeit that Mr Parselle was not called. Secondly the plaintiff seeks to rely upon the fact that Mr Parselle is shown on the employers Report of Injury form as being the person to whom the complaint was reported. Here again the failure of the defendant to call Mr Parselle seems to me to be of very little weight in the scheme of things bearing in mind the totality of the evidence before the Court.
180 In terms of the plaintiff’s attempt to rely upon admissions, the submission was that admissions had been made by the defendant itself, where Mr Bruce-Smith had signed the Employer's Declaration part of Exhibit P17 and further that admissions had been made by the Workers Compensation Insurer by the continuance of compensation payments throughout and particularly following the insurer having learnt of Dr Kucera's notes.
181 It is common ground that admissions or acts which are put forward as being admissions, are to be weighed against the whole of the evidence. To my mind the signing of the Employer's Declaration is clearly capable of being explained. The document was signed on 26 August 1998. Mr Bruce-Smith gave evidence that he had not been present when the accident occurred and that others had told him that there had been an accident. The point in time at which the document was signed and the emergence only much later of, for example, Dr Kucera's notes, serve to adequately explain how it had come about that the employer's declaration was completed in the way in which it was completed, very early in the peace.
182 The continuance of the payment of benefits in accordance with the Workers Compensation Act has been adequately explained by the evidence of Mr Young and Mr Rooney. Evidence of an informal admission or of conduct amounting to an admission may always be explained. Hunt J in Heuston v Yore Contractors Pty Ltd (unreported 9 March 1992) made plain that in a context where continued payment of workers compensation may be admissible against the defendant in whose name an insurer defended common law proceedings as an admission that the worker was still incapacitated, that form of admission was always "open to explanation by way of evidence in the same way as any other informal admission is open to explanation". The explanation proffered by the insurer is clear and satisfactorily explains how it came about that the payments continued in the circumstances.
183 For those reasons a verdict for the defendant will be entered when short minutes of order are brought in. Costs may be argued.
184 Had I been satisfied of the plaintiff’s evidence to the effect that the accident took place upon the date and in the circumstances which the plaintiff alleges, I would undoubtedly have found a verdict for the plaintiff in terms of the cause of action and made a finding of contributory negligence.
185 The employer’s duty of care is a very heavy one and is non-delegable:-
- “The employer has the exclusive responsibility for the safety of the appliances, the premises and system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in the relevant respect the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work.” (per Mason J at 687 in Kondis v State Transit Authority (1984) 154 CLR 672)
186 The test in relation to negligence is still that as set out in the case of Wyong Shire Council v Shirt (1980) 146 CLR 40 essentially as follows:-
· Was there a foreseeable risk of injury to the plaintiff or a class of person similar to the plaintiff; and
· What was a reasonable response to the foreseeable risk of injury. In assessing the “reasonable response”, the magnitude of the risk and the cost involved in forestalling the risk should be weighed up.
187 It is clear that the subject staircase had been a hazard for months prior to 4 August 1998. On the evidence, the anti-slip guard, had come off the top step several months before 4 August. The plaintiff was not the only one who gave evidence in relation to the subject stairwell. Ms Lovett gave evidence that as at August 1998 there was a tread missing on one of the stairs. Ms Lam gave evidence that the anti slip guard had been missing for many months before her husband fixed it, although she was not certain as to the date on which he had fixed it. Ms Lovett herself had slipped at some time on the stairs. Mr Kosyfas gave evidence that as at the time when the plaintiff stopped coming to work (being sometime after 4 August 1998) it was pointed out to him that the slip-tread was missing. .
188 As to the allegation of negligence in respect of the lighting in the stairwell, the plaintiff’s evidence has already been set out. Mr Bruce-Smith gave evidence that the area in question was dimly lit although it was sufficient to walk up and down the stairs. Mr Kosyfas also gave evidence that in about August 1998 the stairwell was not brightly lit.
189 Clearly the plaintiff was expressly charged with duties which included building maintenance and management. On my findings the problems which are shown to have arisen in relation to both the stair-slip guard as well as the lighting represented extremely simple maintenance issues well and truly within the experience and competence of the plaintiff in so far as arranging for the reinstatement of the strip and the replacement of such fluorescent light bulbs as were necessary. The petty cash float was available and should clearly have sufficed for the purpose. The plaintiff herself personally attended to the Exit Sign.
190 I reject as unreliable:
- (a) the plaintiff’s evidence of having contacted Mr Bruce-Smith about the need for repairs; and
- (b) the plaintiff’s evidence of contacting Mr Niven and then attempting to again obtain a response from Mr Bruce-Smith.
191 In those circumstances had the holding been that the plaintiff had had the accident which was sued upon, it would have been appropriate to find 50% contributory negligence. In this regard the range put forward by the defendant was between an upward limit of 70 % and a lower limit of 30% against the plaintiff. The submissions of the plaintiff had been for either a ‘nil’ finding or a very modest finding.
192 As to the substance of the plaintiff’s claims, on the basis that the accident had taken place in the fashion sued upon, I emphasise that the defendant clearly elected to litigate the final hearing upon the basis that the plaintiff was as significantly incapacitated as claimed. Mr Williams for the defendant put the matter as follows:
- "I do not wish to make submissions on damage beyond a very short compass in this case. We have tested the plaintiff’s evidence over her condition only peripherally with regard to the improvement she had had in respect of [the epidural stimulator], and we do that in this way, to found a submission that, as is not uncommon in these cases, the plaintiff’s put their best foot forward in the witness box." [transcript 104 -105].
193 There was no cross-examination of the plaintiff’s medical experts.
Damages
194 Both parties produced schedules of damages.
195 The convenient course is to append the competing schedules to the judgment.
196 I am satisfied that the plaintiff is totally and permanently incapacitated and will remain so for life. I am satisfied that the plaintiff would have continued to carry out the work she had been carrying out or similar but for this incapacity.
197 Had the plaintiff satisfied the Court on the balance of probabilities of the occurrence of the accident, the verdict for the plaintiff would have been in accordance with the following tables which:
(b) takes into account detail to be found in the Medico-legal Functional Assessment report [exhibit PX Tab 12].
(a) generally follow the format adopted by the plaintiff (although in some cases the figures for which the plaintiff contended have been omitted or reduced with explanation); and
Base Data as agreed by the parties
Date of birth 6 December 1962 = 39 years 2 months
Date of injury 4 August 1998
Life Expectance 43.97 years
Multiplier Life Expectancy
(MLE) 944.5
Working Life Expectancy
(WLE) 26 years (approximately)
MODIFIED COMMON LAW DAMAGESMultiplier Working Life
Expectancy (MWLE) 768.7
- Section 151G Non-Economic Loss (assessed at 1.4.98)
Section 151H Economic LossMaximum: $228,350.00
Upper Limit: $ 53,750.00
Lower Limit: $ 40,300.00
$53,350.00
Section 66(i) $100,000.00
COURTS ASSESSMENT OF DAMAGES
Figure Allowed
Non-Economic Loss
60% $ 137,010.00
Past Out of Pocket Expenses
a. Paid by workers compensation
insurer [Agreed] $ 181,901.29
b. Unpaid [Agreed] $ 2,323.30
a. Visits to General Practitioner ($2,613.00Future Out of Pocket Expenses – Medical
over 1.5 years) $ 32,210.00
($33.00 pw x MLE)
[ Notwithstanding the defendant’s submission this claim[Defendants submission- Plaintiff’s claim is for $33.00 per week for the full remaining statistical life
expectancy of the plaintiff – ie to age 83 years – claim unreasonable – no evidence to support continuing need until death of $33.00 per week – allowance appropriate at one visit per month = $8,052.50]
seems to me to be reasonable in the circumstances]
- b. Psychotherapy (as per report of A Robertson) $ 2,000.00
[Defendants submission was as per report of
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
- [ Defendants submission - Medication – current base figure of $19.30 per week not disputed. Plaintiff allows no vicissitudes to admit of recovery /improvement–defendant submits for 50% deduction: $7,747.26]
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
- ($4,000.00 over 18 months = $51.00 pw) 0
- [Defendants submission - Hydrotherapy/physiotherapy – defendant submits any benefit from physiotherapy would have been manifest within period 4 August 1998 to date –no evidence ongoing resort to either modality - allowance: $ Nil]
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
e. ADAPT Program Number 2 –
- Cognitive Julia Fleming $ 5,000.00
[Notwithstanding the defendant’s submission this claimDefendants submission- ADAPT Programme No. 2 – discount for uncertainty that plaintiff will under go same – say 30% reduction: $3,500.00]
seems to me to be reasonable in the circumstances]
f. TENS Machine (Spinal Cord Stimulator) [Agreed] $ 5,000.00
ECONOMIC LOSS
FuturePast
Nett Earnings as at date of injury $723.00 per week
23 August 1998 to 25 February 2002 = 192.3 weeks
Total Past Economic Loss [Agreed] $ 139,032.90
(WLM) x (Current Nett Weekly Wage ) less 15%
768.7 x $723.00 = $555,770.10 less 15% = $472,404.58
[Defendants submission:
Future
Plaintiff’s claim is for total incapacity for total remaining working life – not accepted.
Submitted allowance must be made for at least partial recovery through pain management or surgery or general rehabilitation within say three years to give a residual earning capacity of say 50%.
723.00 multiplied by (3 years) 145.6 = less 15%
vicissitudes: $ 89,478.48
22.8 years (rounded to 23 years) of $723 net per
week deferred for three years (.864)
Total Future Economic Loss $314,505.50] [Notwithstanding the defendant’s submission and bearing in mind my holding that I am satisfied that the plaintiff is totally and permanently incapacitated and will remain so for life. I am satisfied that the plaintiff would have continued to carry out the work she had been carrying out but for this incapacity. This claim seems to me to be reasonable in the circumstances]$723 multiplied by 721.3 = 521499 multiplied by
.863 = $450054 multiplied by .5 =$225,027.02
Total Future Economic Loss $ 472,404.58
PastSUPERANNUATION
Gross $57,500.00 p.a.
Personal Injury Support Report to 14.12.99 = $7,882.26
15.12.99 to 25.2.02 = 2.19 years x $57,500
= $125,925 x 8% = $10,074.00 [Agreed] $ 17,956.26
- Future
Gross $57,500.00 p.a. x 9% = $5,175.00
= $99.52 pw x 768.7
= $76,501.02 less 15% $ 65,025.87
- [The findings of the plaintiff's total and permanent incapacity mean that the Defendants submissions below are rejected]
- [Defendants submission - Future
Same formula to be applied as for future
Economic loss ($65025.87) multiplied by 3.145 divided by 4.724) $13,765.00 FOX v WOOD [Agreed] $ 18,364.71
Sullivan v GordonDOMESTIC ASSISTANCE
Past Care
Griffiths v Kerkemeyer
Refer to Workers Compensation Act, 1987 Section 151K
Average Weekly Earnings 4.8.98 to 25.2.02 median = $661.00 pw Rehab Management Report 13 April 2000 (page 28) = 21.5 hours pw Per s. 151K(5) $661.00 / 40 = $16.52 per hour x 21.5 hours
= $355.18 pw x 192.3 weeks [Agreed] $ 68,301.11
- [The plaintiffs claim was put as follows:
Refer to Griffiths v Kerkemeyer calculation
2 children x 1 hour extra per day per child
Per s. 151K(5) $16.52 per hour on average 4.8.98 to 25.2.02
= $33.04 x 7 = $231.28 pw x 192.3 weeks $ 44,475.14
Gardening[I accede to the Defendants submission that this claim was not pleaded and in any event is subsumed within the Griffiths v Kerkemeyer head of damage allowed below
In the resort no amount is awarded]
Refer to Griffiths v Kerkemeyer calculation
Rehab Management Report 13 April 2000
(page 29) 1 hour per week:
per s. 151K = $16.52 per hour on average
$16.52 x 192.3 weeks [Agreed] $ 3,176.80
- Summary of the Above
Less than maximum allowed (40 hours) in s. 151K WCA
Griffiths v KerkemeyerFuture Care
Rehab Management Report 13 April 2000 = 21.5 hours pw
s. 151K(5) current hourly rate = $17.59
$17.59 x 21.5 = $378.18 pw x 944.5 (MLE)
= $357,191.01 less 15% = $303,612.35 $ 303,612.34
- The findings are that the plaintiff will not be rehabilitated.
[The Defendant submission-
- Future Care
Griffiths –v- Kirkemeyer
Submitted three year allowance for rehabilitation –
Reasonable $378.18 per week for 3 years 5%
multiplier 145.6 = 55,063.74]
[notwithstanding the defendant’s submission this
claim seems to me to be reasonable in the circumstances]
Sullivan v Gordon
Children born: October 1989 (12 y.o.)
August 1992 (9 y.o.)
25.2.02 to 31.12.06
s. 151K(5) current hourly rate = $17.59
$17.59 x 2 = $35.18 x 7 = $246.26
$246.26 x 189.6 (4 yr multiplier) $ 46,690.90
Gardening1.1.07 to 31.12.09
s. 151K(5) current hourly rate = $17.59
$17.59 x 1 = $17.59 x7 = $123.13
$123.13 x 149.8 (3 yr multiplier) = $18,444.87
$18,444.87 x 0.823 (4 yr deferred) $ 18,444.87
Rehab Management Report 13 April 2000
(page 29) = 1 hour pw
s. 151K(5) current hourly rate = $17.59
$17.59 x 1 hour = $17.59 pw x 944.5 (MLE )
= $16,613.75 less 15% = $14,121.69 $ 14,121.69
[Defendants submission-
[Notwithstanding the defendant’s submission thisOne hour per week at $17.59 for 3 years =$2,561.10]
claim seems to me to be reasonable in the circumstances]
a. High Back ChairFuture Out of Pocket Expenses – Special Needs
Cost $499.00 and replacement
every 5 years ($499.00 x 5) $ 2,495.00
- [notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
- b. Computer Desk with adjustable height
Cost $750.00 and replacement
every 7 years ($750.00 x 4) $ 3,000.00
- [notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
c. Document Holder – Adjustable
Cost $80.00 and replacement
- every 7 years ($80.00 x 4) $ 320.00
[notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
d. Vocational Rehabilitation [Agreed] $ 4,000.00
f. Personal Alarm Systeme. Driver Assessment [Agreed] $ 770.00
$279.00 + $360.00 per annum
$6.92 pw = $6,337.00 + $279.00 $ 6,616.00
- [notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
- g. Sock Gutter
$9.80 @ 5 years x 9 years $ 88.20
- [notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
i. Long Handled Washer
h. Shoe Horn
$9.80 @ 5 years x 9 $ 88.20
$33.00 @ 5 years x 9 $ 297.00
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
j. Lumbar Support
$50.00 @ 12 months
$1.00 pw x 944.5 = $944.50
$944.50 less 15% = $ 808.82
- [Notwithstanding the defendant’s submission this claim
- seems to me to be reasonable in the circumstances ]
k. Easireach
$32.00 @ 3 years x 15 = $1,440.00
1,440.00 less 15% $ 1,224.00
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
l. Adjustable Height Kitchen Stool
$32.00 @ 3 years x 15 = $1,440.00
$1,440.00 less 15% = $1,736.55
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
$165.00 @ 5 years x 9 = $1,485.00
$1,485.00 less 15% $ 1,262.25
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
n. Todd Recliner Lounge Chair
1,745.00 @ 10 years = $3.35 pw
$3.35 x 944.5 = $3,164.07 less 15% $ 2,689.46
- [Notwithstanding the defendant’s submission this claim
seems to me to be reasonable in the circumstances]
___________________I certify that paragraphs 1 - 197
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 15 March 2002.
Susan Piggott
Associate
- 15 March 2002
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