Wainright v Barrick Gold of Australia Limited - [2012] WADC 79

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WAINRIGHT -v- BARRICK GOLD OF AUSTRALIA LIMITED [2012] WADC 79

CORAM: BOWDEN DCJ

HEARD: 5 - 9 & 12 - 13 DECEMBER 2011 & 15 - 16 MARCH 2012

DELIVERED : 8 JUNE 2012

FILE NO/S: CIV 1291 of 2007

BETWEEN: SHEILA WAINRIGHT
Plaintiff
AND
BARRICK GOLD OF AUSTRALIA LIMITED
Defendant

Catchwords:

Employer's liability - Personal injury - Damages assessed

Legislation:

Nil

Result:

Defendant liable
Judgment for the plaintiff for $152,074.00

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos QC
Defendant: Mr B Nugawela

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Greenland Legal Pty Ltd

Case(s) referred to in judgment(s):

Agresta v Agresta [2010] NSWCA 330
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Astley v Austrust Ltd (1999) 73 ALJR 403
Australian Securities and Investments Commission v Hellicar [2012] HCA 17
Czatyrko v Edith Cowan University [2005] HCA 14
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611
Divjakoski v Boral Window Systems [2011] WASCA 134
Electric Power Transmission Pty Ltd v Orgaz (Unreported, WASC, Library No 7914, 3 November 1989)
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Kondis v State Transport Authority (1984) 154 CLR 672
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & MH Stranmare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McGlen‑McLeod v Galloway [2011] NSWDC 163
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Nominal Defendant v Kostic [2007] NSWCA 14
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304
State of South Australia v Ellis [2008] WASCA 200
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Wyong Shire Council v Shirt (1980) 146 CLR 40

BOWDEN DCJ: In 2003 Ms Wainwright was employed by the defendant as a geo‑technician. She worked with a geologist and a drilling crew in the north‑west of the state between Meekatharra and Newman.
Her duties included taking rock samples from the drill site back to a laboratory. To perform these duties she was provided with a Toyota Landcruiser ute and a trailer.
On 24 November 2003 Ms Wainwright sustained injury when she fell whilst in the process of descending from the Toyota Landcruiser tray top to the ground using the trailers A‑frame as her climbing platform.

The plaintiff's claim

Ms Wainwright claims her injuries were sustained as a result of the defendant's breaches of her contract of employment, negligence and/or breaches of its statutory duties under the Mines Safety & Inspection Act 1994 (WA).
As a result of the injuries Ms Wainwright pleads that she has not been gainfully employed from the 7 April 2005 and since then has been totally and permanently incapacitated from all gainful employment, although she presented her case on the basis that, currently, she was at 'best' fit for light duties (ts 1318).

The defendant's case

The defendant denies breaching any of its duties, alternatively it says the accident was caused or contributed to by Ms Wainwright.
It also says the Ms Wainwright is not entitled to any relief as she made a full recovery shortly after the accident and has been fit for her pre‑accident employment since at least December 2004 and, in any event, from August 2007 would have been incapacitated for work as a geo‑technician as a result of shoulder complaints unrelated to the accident.

The Evidence

The background

Ms Wainwright was born on 22 April 1955 and in 2002, enrolled in a geo‑technician's course at Leederville TAFE with the aim of obtaining employment in the mining industry and re entering the work force.
During the course she undertook work experience with the defendant and upon graduation, in October 2002, worked for three months with another company and was then offered employment by the defendant.
Mr Simon Cole, who at the time was the defendant's senior development geologist and had over 25 years' experience in the resource industry, met Ms Wainwright during her work experience and recruited her. He described her as a competent lady who did everything required and was 'head and shoulders' above those who had not completed the geo-technician's course. Mr Fallon, the defendants supervising geologist, described her as dedicated, thorough and hardworking.
Ms Wainwright commenced work for the defendant in approximately March 2003 on a two‑week on, one‑week off roster, working 11 1/2 hours per day.
The area where she worked is typical of the north-west of Western Australia. The environment was described by Mr Cole as hostile, harsh, and very hot, and the combination of heat, flies, sweat, dust, arduous work, long hours and production pressures made for difficult work conditions.
The climate was generally dry however the conditions were changeable and on occasions there would be heavy rainfall such that the ground was soaked for several days. Ms Wainwright said that when the terrain was wet it was muddy and became slimy and slippery.
Like all employees, Ms Wainwright was required to wear steel cap boots covering the ankles (ts 758).
When she first commenced employment a Toyota Landcruiser ute (the ute) and a dual axel tandem trailer were provided. The ute's tray had an access rung fitted on each side. The geologist she accompanied was provided with a separate ute.
Ms Wainwright was responsible for packing her work equipment on the trailer and ute (ts 141, 145, 187, 243). The ute's tray held items including a tool box, spare tyre, safety equipment and esky. The tandem trailer was approximately 5 foot by 8 foot with the capacity to carry her working equipment, and the drill samples accumulated during the day. Ms Wainwright was able to obtain any equipment she required from this trailer by standing with both feet on the ground and lifting the equipment in or out.

Some significant changes in the work place

After Ms Wainwright had been working for a short time the tandem trailers were replaced by 6 foot by 4 foot garden trailers with less carrying capacity. Mr Cole said their carrying capacity was about 50% to 66% of the tandem trailers. The garden trailers were, according to Ms Wainwright, only used to hold the core samples, all other equipment was carried on the ute's tray. Mr Cole confirmed this (ts 744).
About this time the practice of providing the geologists with a separate ute ceased which resulted in the geo-technician and geologist sharing the same ute and the geologist's equipment being carried in the utes tray or garden trailer.
Ms Wainwright estimated she accessed the ute's tray about three to four times a day to obtain equipment.

Access to the ute's tray

Access to the ute's tray was by either one of the rungs situated either side of the tray or via the garden trailer A-frame.
Access via the side rungs was obtained by a person placing their feet into the rung and climbing onto the ute tray. The access rungs were made of tubular steel in the shape of a ladder step. Exhibit 8 shows a Landcruiser fitted with rungs, similar but not necessarily identical, to those used on the day of the incident.
The other method of access was by the garden trailer A-frame. A person would stand on the trailer A-frame and then enter onto the utility's tray. Exhibits 2.1 ‑ 2.6 are photographs of the trailer A‑frame, taken on the day shortly after the incident.
Ms Wainwright's uncontradicted evidence was that she was never given any instructions not to use the A-frame to access the ute tray (ts 91) nor any instructions on how to access the ute's tray.

The accident occurring on the 24 November 2003

The only witness to the events of the 24November 2003 was Ms Wainwright. The following is based on her account.
Ms Wainwright commenced her shift at approximately 6.00 am and travelled with the geologist, Mr Woods, to the drill site about 45 minutes from the mine.
After they arrived, a storm approached. There was a considerable amount of thunder and lightening, and she retreated into the interior of the Landcruiser. Ms Wainwright said it was very, very windy. Eventually the worst of the storm passed by which time it had rained for about 10 minutes.
Ms Wainwright got out of her vehicle and a worker Mr Jason Etherington asked for one of the plastic bags, normally used to hold core samples, to protect his electronic equipment.
Mr Etherington went to the rear of the ute where amongst other things were a number of plastic bags in a cardboard box which, due to the weather conditions, had started to disintegrate. On top of the highest plastic bag in that disintegrating box was a concrete plug, the weight of which held the plastic bags down. Immediately behind the cardboard box and abutting it, were two other cardboard boxes, covered by a plastic bag.
Mr Etherington pulled a plastic bag from the disintegrating box with such force that the concrete plug sitting atop was dislodged. Ms Wainwright wished to retrieve the concrete plug and place it back on top of the plastic bags in the disintegrating box thereby stopping them from blowing away.
At 5 foot 3 inches to 5 foot 3 1/2 inches Ms Wainwright said she was too short to reach the concrete plug from the ground (ts 91, 154) and needed to mount the ute tray to retrieve it. The tray was wet and muddy and her boots were caked in mud (ts 97).
It is accepted by all that she could not use the access rung on the driver's side because of the location of the spare wheel on the utility tray (ts 92, 1311).
She said she could not use the passenger side rung because she could not put her toe into the rung as the water tank had been welded flush against the inside of it and a large grey toolbox was situated on the ute tray with other equipment so there was nowhere for her to stand even if she was able to access the tray from that rung (ts 92, 225, 226).
Other items in the tray included, but were not limited to, a smaller tool box, green plastic bags of chip trays, plastic buckets, and truck chocks.
In any event, she climbed onto the A-frame, stood on it and then wedged herself onto the back of the tray on her knees, located the concrete plug and put it back on top of the plastic bags. She then commenced to descend.
She said she stood up. By this time both her feet were on the edge of the back tray. She said the conditions were so windy she was almost getting blown around.
Ms Wainwright put her left hand on the esky and started to crouch down. She then grabbed the ute's left hand side flap ridge with her left hand, and with her right hand gripped the open back flap. Her fingers were underneath the ridge running along the open back flap and her thumb was over the top of the ridge. She then proceeded to put her left foot down, searching for contact with the A-frame. At this time her right foot was just over the checker plate at the rear of the ute's tray. She then looked down to see where the A‑frame was, and when she looked back, a plastic bag 'flapped' into her right foot, which pivoted up and she fell landing on the spare wheel attached to the A‑frame. She said she was not sure whether she stepped on the plastic bag.
She said she hit the spare wheel once, bounced, hit it again, injuring her back, right leg, knee and right ankle, which hit the tow bar, and her left elbow, which hit the A‑frame.
She said that although she was responsible for organising her work equipment on the ute, the esky was not part of her equipment. When she left that morning the esky was on the right hand side of the ute, away from her working area, and was moved without her knowledge or approval to the left hand side by unknown persons. She did not notice it had been moved until she ascended into the ute tray.
As a consequence of the esky being moved, Ms Wainwright said she did not have sufficient stepping space when she stepped onto the ute tray and said irrespective of the eskies position their was only minimal stepping space.
In exhibit 4, a document authored by Ms Wainwright in 2006, she said the incident occurred when her right foot slipped after coming into contact with a tiny piece of plastic (ts 174). She accepted this was contrary to, and inconsistent with, her evidence that she did not actually see her foot slip on the plastic bag and did not know if it had.

Investigations subsequent to the accident

Mr Cole, was Mr Fallon's alternative so that when one was absent the other would manage the department.
Although Mr Cole was not at the site at the time of the accident it was part of his duty to investigate it. He had no formal training in accident investigation nor had he worked in the occupational health and safety field but said he had a passion for accident investigations, making changes and mitigating the hazards and improving the workplace (ts 761).
He prepared incident report forms (exhibits 2.53, 2.54) based on what others told him.
He and Mr Fallon confirmed exhibit 2.52 was distributed by the defendant around its various sites as part of its safety learning process. Exhibit 2.52 listed the immediate cause of the accident as 'having slippery hazards approximate to the tail back tailgate' and contributing factors as 'not assessing the slip hazard (plastic bags), climbing several times a day onto the tray back, large storage unit blocking correct way onto the tray back, equipment not properly organised on tray back to make items more accessible to reach from the ground.' In exhibit 2.53 Mr Cole described these contributing factors as 'unsafe conditions'.
Mr Cole said that even after the accident there was never a prohibition on workers entering upon the uts tray and they did so for one reason or another (ts 768).
He and Mr Fallon (ts 829, 834) detailed the modifications made after the incident with the aim of enabling access, from the ground, to everything stored on the trailer (ts 772) thereby alleviating the need to enter the tray.
The modifications include the constructions of a cage with access doors at both ends, installed at the front of the trailers so that items could be placed either underneath the cage on the floor of the trailer or into the cage, effectively doubling the amount of storage at the front end of the trailer. Mr Cole said the items in the cage could then be reached by a person standing on the ground.
Mr Cole acknowledged that even with the modified trailers if somebody wanted something from the back of the ute they would have to access the tray. Mr Fallon said that even after the modifications he witnessed people on the ute trays at mine sites (ts 835).
The evidence of Mr Cole and Mr Fallon showing the post‑accident modifications to the trailer is not an implied admission of liability on the defendant's behalf, nor is it evidence that the system of work at the date of the accident was unsafe, it is simply evidence as to steps taken after the accident: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [176] (Murphy JA).
Associate Professor Nedveld, who is highly qualified, and has extensive experience in the areas of accident investigation and prevention, prepared a report at the plaintiff's request which said, inter alia, the causes of the accident were:
1.The failure of the plaintiff to receive information, instruction or training on how to access a utility or a trailer in safe manner;
2.The absence of any other way to climb onto the utility tray other than using the A‑frame of the trailer; and
3.The failure of supervisors who were aware of the practice of people entering onto the ute tray and failed to do anything about that practice.
He said the most efficient, cost effective and safest procedure was to ensure there was no need to enter the ute tray by using a well designed trailer, so all equipment was accessible from the trailer by the employee with their feet on the ground.
He said where work occurred in rainy conditions work boots could become caked in mud with the potential to slip even on well designed steps.
He said in a very narrow range of circumstances a person could safely enter onto the ute tray but only when the ute was in a yard and not in the field.
As an alternative he accepted there was a widespread industry practice of having a tubular frame that incorporates steps on the side or rear of the ute (ts 810, 814).
Such steps, he said, should have a secure handhold, so the employee could maintain three points of contact as they climbed. He said these small ladders were invariably welded into the chassis of the ute with steps above the ground of 25 cm to 30 cm and then another two or three steps depending on the dimensions of the ute.
Associate Professor Nedveld said in conjunction with the steps with a secure handhold the ute tray needed to be organized so their was sufficient room for a person to place their feet safely once they ascended the steps.

Findings on liability

Is there a duty of care and if so the scope of that duty?

At common law an employer owes a non‑delegable duty to exercise reasonable care to avoid exposing its employees' to unnecessary risks of injury. Kondis v State Transport Authority (1984) 154 CLR 672; Wyong Shire Council v Shirt (1980) 146 CLR 40; Divjakoski v Boral Window Systems [2011] WASCA 134.
The duty includes an obligation to take reasonable steps to establish, maintain and enforce a safe system of work: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Wyong Shire Council v Shirt.
The duty is not absolute. It is assessed by reference to reasonable foresight of risk or injury.
Additionally under the Mines Safety and Inspection Act and associated regulations an employer owes a duty to provide and maintain a workplace plant and system of work such that as far as practicable its employees are not exposed to hazards and to provide such information instructions and training to and supervision of its employees as is necessary to enable them to perform their work in such a manner as not to exposed them to hazards (s 9, reg 4.13 and reg 6.2).
There is no meaningful distinction between the common law and statutory duties and there was no issue at trial as to whether a breach of that statutory duty created a cause of action. Clearly it does: Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304.

Was the risk of injury reasonably foreseeable?

In deciding whether there has been a breach of that duty the first question is whether a reasonable person in the defendant's position would have foreseen that its conduct involved the risk of injury to the plaintiff or a class of persons including the plaintiff.
A risk which is not fair‑fetched or fanciful is real and therefore foreseeable: Divjakoski v Boral Window Systems.
In almost every case in which a plaintiff suffers damage, it is foreseeable that if reasonable care is not taken, harm may follow and the crucial question is whether the defendant exposed Ms Wainwright to an unnecessary risk of injury: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2].
Not every foreseeable risk of injury requires some response to overcome it.
It is not necessary to prove a defendant should have foreseen the precise injury or mechanism by which it occurred, it is sufficient if the risk is within a class of risks that the defendant should in a general way have foreseen: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87].
The obviousness of a risk is a relevant factor however a duty of care may still be owed in relation to an obvious risk: Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234; Agresta v Agresta [2010] NSWCA 330.

I find this accident occurred in the manner described by Ms Wainwright in [34] ‑ [37]. The cause of the accident was the use of the A‑frame as an access point to ascend/descend the tray. I am not satisfied Ms Wainwright slipped on a plastic bag and find she fell as a result of either misplacing her foot or loosing her balance as she step onto or 'searched' for the A-frame with her left foot.
The defendant provided Ms Wainwright with an A‑frame trailer and a ute and she was required to carry work equipment in both. A worker provided with a ute and required to carry work equipment on its tray will enter onto the tray at some time. It defies commonsense to suggest otherwise.
The defendant envisaged its employees would access the ute tray, which is why it was equipped with two access rungs. The evidence clearly established its employees frequently entered the tray (Wainwright, Cole, Fallon).
A trailer by its very nature is situated immediately at the rear of the utility. It presents as an enticing platform from which to access the ute's tray, and it is almost inevitable for it to be used to do so particularly when the side rungs cannot be used.
The changes in work practice, of replacing the tandem trailer and requiring the geologist to travel with the geo‑technician, increased the amount of equipment to be carried in the trailer or ute whilst reducing the capacity to carry it.
I find that although the ute was equipped with steps on either side of the tray the position of the spare tyre, prevented access from the driver's side rung, and the position of the water tank effectively prevented access to the passengers side rung as did the position of the grey toolbox.
Every aspect of this accident was reasonably foreseeable. It is reasonably foreseeable that an employee in the absence of any instruction to the contrary would use the A‑frame as an access point to ascend or descend the tray, particularly when the side rungs cannot be used.
Exhibits 2.1 ‑ 2.6 show each of the A‑frame arms are relatively narrow with a large gap between the arms. To gain access to the tray from the A‑frame requires a person to place their foot/feet on the trailer and use it as a support base. When descending from the tray a person could place their foot vertically or at an angle.
It is reasonably foreseeable that in an effort to descend safely an employee may seek to maintain points of contact by gripping with either one or both hands the side or rear flaps of the ute tray and may position their foot or feet on or close to the very rear of the ute tray. It is reasonably foreseeable an employee could lose their footing and fall on to the A-frame as a result of either misplacing their foot or loosing their balance as they step onto or 'search' for the A-frame.
A fall could result in the employee falling onto either the ute tray, the ground, the trailer, or some object on it such as the tow ball, or spare tyre or a combination of all of those. Clearly serious injury could easily result.
I find it is reasonably foreseeable that an employee would use the trailer A‑frame as a climbing platform and could fall in that process and could be seriously injured and there is an obligation on the employer to guard against that foreseeable risk of injury.

Did the defendant expose Ms Wainwright to an unnecessary risk of injury and what would a reasonable employer in the position of the defendant have done by way of response to avoid the foreseeable risk of injury?

This involves considering the magnitude of the risk and the degree of the probability of its occurrence: Wyong Shire Council v Shirt. The obviousness of the risk is also a relevant factor.
Determining what has to be done in order to discharge the duty involves looking forward to identify what a reasonable person would have done, not looking backwards to identify what would have avoided the injury: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486; Divjakoski v Boral Window Systems [70] ‑ [72].
The failure to take action before an accident which may have prevented an injury is not a basis for reasoning towards a finding of negligence. It is erroneous to look at an accident in hindsight rather than determine what action a defendant was reasonably required to take before the accident happened: Kuhl v Zurich Financial Services [94], [96]; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93], [96] ‑ [97]; New South Wales v Fahy [57]; MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2].
What is a reasonable response to a foreseeable risk of injury depends upon the circumstances of each case.
The employer must take into account the possibility of thoughtlessness, inadvertence or carelessness by its employees: McLean v Tedman; Czatyrko v Edith Cowan University [2005] HCA 14. It may also be appropriate to take steps to guard it against an obvious risk: Thompson v Woolworths (Qld) Pty Ltd.
Each case is to be examined in its own peculiar circumstances. It may, in some circumstances, be reasonable to make no response to a foreseeable risk: Thompson v Woolworths (Qld) Pty Ltd.
The court must looking at what is reasonable and practical for an employer to do, and not just ask what could have been done to eliminate, reduce or warn against the danger.
However by asking what could have been done it will reveal what was practical, and then the question is, would it have been reasonable for the employer to take those measures?: Neindorf v Junkovic.
I have found it was reasonably foreseeable for an accident such as this to occur and serious injury be suffered.
A reasonable employer in the defendant's position would have responded to the foreseeable risk of injury and avoided it by instructing their employees not to ascend or descend the utility tray by use of the trailer A‑frame and ensuring the vehicle had usable access rungs. (As pleaded, albeit in a slightly different form, in par 10.1 and par 10.2.1 of the statement of claim.)
The ute was equipped with steps on either side of the tray however they were effectively unusable and the defendant was obliged to ensure access from the existing rungs or install another access rung and their failure to do so meant they failed to provide any safe means for Ms Wainwright to access the ute tray (as pleaded in par 10.3.1 of the statement of claim, par 10.3.2 and par 10.3.3 are effectively subsumed within par 10.3.1).
To do so would have been reasonably and practically and would have eliminated the danger and thereby not unnecessarily exposed Ms Wainwright to risk of injury that the defendant ought to have known about. The defendant provided the ute and trailer and required both to be used to store work equipment. By failing to instruct Ms Wainwright not to ascend or descend the utility tray by use of the trailer A‑frame and failing to ensuring the vehicle had usable access rungs it exposed Ms Wainwright to an unnecessary risk of injury: MR & RC Smith Pty Ltd T/As Ultra Tune (Osborne Park) v Wyatt [No 2].
It does not matter whether a usable access rung was provided by repositioning the spare tyre and/or water tank and large grey toolbox thus ensuring the existing side rungs were usable or installing a rear access rung.
The instruction not to use the trailer A‑frame as a point of access would be cheap and easy to implement and supervise and easy for an employee to understand. Associate Professor Dr Nedveld, uncontradicted evidence was that installing rungs accompanied by a secure handhold were efficient and cost effective.
Ms Wainwright's uncontradicted evidence was that she was never given any instructions not to use the trailer to access the ute tray (ts 91) nor any instructions on how to access the ute's tray and the plaintiff has established the defendant failed to take reasonable precautions for Ms Wainwright's safety in that they failed to provide a safe system of work for her as they failed to instruct her not to access the ute tray by means of the trailer, failed to instruct her to access the utility tray only via the rungs, failed to ensure the ute had usable access rungs and failed to provide such information, instruction and/or training as was necessary to enable her to work in such a manner that she was not unnecessarily exposed to hazards (as pleaded in par 10.3.6, par 11.1 and par 11.2 of the statement of claim).
Had the defendant issued those instructions and ensured that there was a usable rung it would not have been necessary to supply Ms Wainwright with a large or modified trailer.
I accept the defendant could have provided either a larger trailer (large trailer option) as pleaded in par 10.3.5 of the statement of claim, as they had prior to the accident or a modified trailer (modified trailer option) as they did after the accident, of sufficient size to enable working materials to be obtained without the need to ascend into the ute tray.
The defendant could also have instructed Ms Wainwright not to enter the tray in any circumstances. As I have said I do not think that is practicable and reject Associate Professor Nedveld evidence to the contrary. A worker with a ute used to store work equipment is inevitably going, at one time or another, to enter the tray. It is not realistic to suggest otherwise.
This accident was caused by the use of the trailer A‑frame as the climbing mechanism. Ms Wainwright should have been instructed not to use the trailer A‑frame and a safe means to enter the tray should have been provided by ensuring the existing side rungs were usable or installing a rear access rung. If this occurred a modified or larger trailer was not required and the failure to provide them or instruct Ms Wainwright not to enter the tray does not constitute a breach of the defendant's duties.
As to the plaintiff's other pleaded particulars, par 10.2.2 pleads effectively that the defendant should have suspended the drilling operations due to be unsuitable weather conditions. Although the weather conditions clearly contributed to the condition of the tray and Ms Wainwright's boots at the time of the accident there were other reasonable and practical steps the defendant could have taken without the necessity to resort to suspending the drilling operation.
Paragraph 10.3.4 and par 10.3.7 plead a failure to implement a system of keeping plastic bags secure to prevent them flying off the tray in windy conditions and/or a failure of the defendant to instruct its exploration crew to exercise caution when handling plant and equipment including plastic bags.
These pleadings would seem to be based on the actions of Mr Etherington referred to in [29]. The direct cause of Ms Wainwright's injuries was the defendant's failure to instruct her not to use the trailer to ascend/descend the ute tray and provide a safe means to access the tray. The actions of Mr Etherington cannot be said to be the cause of the plaintiff's injury.

Was the injury caused by the Plaintiff's breach of its duty?

The defendant is liable only if the injury sustained by the plaintiff was caused by its negligence, breach of contract and/or breach of Statutory Duty.
The plaintiff must prove what would probably have eventuated had the defendant's breach not occurred.
It is not necessary however that the defendant's act be the sole cause of the plaintiff's damage, causation will be established if the relevant act or omission materially contributed to the damage: March v E & MH Stranmare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.
I am satisfied that the defendant's breach of their statutory duty and their duties as an employer caused the injuries to Ms Wainwright.
Mr Cole and Mr Fallon both spoke of Ms Wainwright's satisfactory work performance and I am satisfied on the balance of probabilities she would not have disobeyed an instruction not to use the trailer A‑frame as the point of access onto the tray and would have used an access rung if one was available.
Although there is evidence showing Ms Wainwright's boots were caked in dirt and mud and the tray was wet, there is nothing that suggests that if she was using the access rungs, even one without handrails, she would have fallen. Ms Wainwright's and Associate Professor Nedveld's evidence in this regard hint at but do not establish the contrary and I am satisfied that if a usable access rung was available she would have used it and would have been able to maintain her footing and therefore not have fallen.
I am satisfied Ms Wainwright's injuries were caused by the defendant's breach of its various duties.
Mr Cole, Mr Fallon and Associate Professor Nedveld and documents circulated by the defendant (exhibits 2.52 ‑ 2.54) all expressed opinions about the causes of the accident and steps that could have been taken to avoid its occurrence. My findings on liability are based on my independent assessment of all the evidence and not by simply relying on their opinions.

Contributory negligence

The defendant says the plaintiff's injuries were occasioned in part by her contributory negligence because she was responsible for organising items on the ute tray generally and chose to block her usual path of travel by giving permission to the geologist to place his esky where he did and packing the trailer as she did.
I reject this submission.
Ms Wainwright said she was not aware the esky was in the position it was until she alighted onto the tray.
Suggestions that Ms Wainwright was in some way contributory negligent because she entered the tray with mud on her boots knowing the tray was wet and muddy are similarly rejected. The defendant provided the boots she was wearing and the ute tray she was entering. The environmental conditions were the conditions they required her to work in.
Ms Wainwright could not use the side rungs, she needed to retrieve the concrete plug and had not been prohibited from using the trailer A‑frame as an access point. She was keen to prevent the plastic bags from blowing off the ute. Ms Wainwright was acting in the defendant's best interests.
She had no reasonably practical alternative course of conduct available to her other than to use the A‑frame.
I do not find anything in Ms Wainwright's conduct that can be described as contributory negligence in accordance with the authorities: Astley v Austrust Ltd(1999) 73 ALJR 403; Electric Power Transmission Pty Ltd v Orgaz (Unreported, WASC, Library No 7914, 3 November 1989); Czatyrko v Edith Cowan University (2005) 79 ALJR 839. Nothing she did could be characterised as misconduct or, in my opinion, 'mere inadvertence' whilst carrying out her work duties.

Events occurring after the fall

After the fall, Ms Wainwright was driven back to the camp site by Mr Woods. She said she was very sore, her right leg and knee were hurting and she was taken to the medical centre. She observed bruising on her back, left elbow, right knee and ankle. Dressings were applied to her left elbow and she was then taken back to her donga where she treated her back, elbow and leg with icepacks.
Ms Wainwright said she remained on clerical duties until the end of her roster and then flew out in a small 20 seater plane by which time her right knee was getting quite painful, the bruising on her leg was getting very black and she had started to limp. Although her back was hurting she said her leg was giving the most pain.
When she was collected from the airport her leg was sore and swollen. She was not able to see a doctor until the next Tuesday and he treated her with anti-inflammatory medication. Ms Wainwright returned to work, as rostered, on 4 December 2003, flying to the site on the small plane.
At work she continued to experience difficulties with her leg, and visited the nursing centre. Although provided with a knee support Ms Wainwright continued to complain that there was something seriously wrong with her leg which, notwithstanding the pain in her back and elbow, was causing her most concern.

Ms Wainwright consults Dr Adonis

Ms Wainwright remained at work as rostered until she flew from the site on 18 December 2003. She attended Dr Adonis on the 19December 2003, by which time she was in excruciating pain and said her leg was rock hard.
Dr Adonis immediately gave her an injection and arranged an ultrasound, and admitted her to Murdoch Hospital as a result of a deep vein thrombosis (DVT) diagnosed in the right leg. Ms Wainwright was not discharged until Christmas Eve.
The defendant accepts the DVT is accident related.
The radiological report of 19 December 2003 tendered under s 79C of the Evidence Act 1906 (s 79C) confirmed a very extensive right lower limb DVT which by 7 April 2004 had almost complete resolved, although there was some residual recanalising and thrombosis in the right popliteal vein. The incompetence of the popliteal vein was still present in the radiological report of 29 November 2010.
Ms Wainwright said she was shocked and distressed at the life‑threatening nature of the DVT. She required injections and blood tests twice daily, and was prescribed Warfarin tablets.
Dr Adonis said that although Ms Wainwright reported injuring her back, right knee and left elbow his major concern was the life threatening DVT (ts 862) which naturally became the focus of his management.
He referred Ms Wainwright to Dr Steve Baker who specialises in DVT because of concerns about the dangers of Warfarin and the fly‑in/fly‑out nature of her work.
Ms Wainwright was off work for only a short period due to the DVT and returned on light duties. She said she continued to perform light duties thou her leg was very sore and would swell when she stood for too long and her back was sore if she sat down for too long.
Dr Adonis' medical certificate of 10 February 2004 indicated Ms Wainwright reported still suffering right intermittent leg swelling and he queried whether the requirement to wear heavy work boots, even whilst doing light duties was aggravating her right leg.
By 17 March 2004, Dr Adonis reported no evidence of significant DVT and said there was slight residue swelling of her right leg and Ms Wainwright reported suffering from lower back and left arm pain.
Ms Wainwright continued to fly to and from work on her normal roster, performing light duties until around Easter (April) 2004. At that time she flew back to Perth, against her protests, on a five seater plane. She said she was so cramped that she sat bent over and when she exited the plane she stumbled, as her leg had completely gone to sleep.
She said this flight left her with a very sore neck, and on Good Friday she developed what turned out to be severe shingles. Dr Adonis certified her totally unfit for work for a short period as a result of the shingles. The plaintiff's counsel concedes they cannot establish the shingles are accident related. Dr Adonis said Ms Wainwright was emotional and uptight and in a lot of pain as a result of the shingles.
In April 2004 Mrs Wainwright consulted Mr Ruscoe, a highly qualified physiotherapist, who said she complained of left sided low back pain which became more apparent as the DVT resolved and by 5 May 2004 he noted steady progress occurring.
By 6 May 2004 Dr Adonis said Ms Wainwright was fit to return to site to resume her pre‑shingles light duties.
Dr Adonis' consultation notes of 14 May 2004 indicate Ms Wainwright was working from the office with no significant problems and her ankle was fine. His certificate of 27 May 2004 notes she was still complaining of back and knee pain and her leg was swelling and his note of 3 June 2004 indicates her right leg was settling and there was no more swelling and whilst she complained of slight discomfort below the knee, overall she was much better.
Mr Ruscoe treated Ms Wainwright on 14 separate occasions and on each occasion physical examined her back. He discharged her on 8 June 2004 when she reported she was pain free and fully functional and he said essentially she was completely pain free in her daily living.
Although Mr Ruscoe noticed some findings in her left middle lumbar facet joints in his report of 5 May, by the 8 June he said they were fine.

Dr Adonis reported on 20 July 2004 Ms Wainwright was progressing quite satisfactory.
Around about this time, Ms Wainwright stopped seeing Dr Adonis and commenced seeing Dr D'Souza as her general practitioner.

Ms Wainwright commences seeing Dr D'Souza.

Ms Wainwright first saw Dr D'Souza on 19 July 2004 and subsequently on a further 40 to 50 occasions.
Ms Wainwright said that by the time she started seeing Dr D'Souza her body was aching throughout all of her joints and muscles.
Dr D'Souza's evidence was that when Ms Wainwright first presented she complained of an injured right knee, right ankle and left elbow, thrombus in her right lower leg and back pain. He said the thrombus was potentially life threatening.
He certified her fit for restricted duties and said she should avoid heavy lifting or manual labour of any kind.
Dr Ross Baker's, a clinical haematologist and consultant physician, reports were admitted under s 79C. He first saw Ms Wainwright on 20 August 2004 and reported the only residual effect of the DVT was mild post thrombotic syndrome particularly with prolonged standing.
He said she needed to use a pressure stocking for the next few years to minimise the post-thrombotic syndrome and the effects of prolonged standing.
He said she should be able to return to her pre-injury employment whilst on Warfarin providing she had regular INR monitoring and his only concern was her remote work location as if she suffered any further injury, she may have excessive bleeding. He had a number of patients on Warfarin with fly‑in/fly‑out employment.
He thought Ms Wainwright had around a one in five chance of a thrombosis reoccurring over the next five years if she ceased Warfarin. He said the risk of major bleeding whilst on Warfarin was 1% to 2% per year, and suggested she remain on it until the position regarding recurrence became clearer.
He noted in April 2005 that she was doing well at work and was keen to cease Warfarin use.
Ms Wainwright also saw Dr Hardistry, an orthopaedic surgeon, whose reports were tendered under s 79 C. He reported on 15 October 2004 that it was highly likely she had a meniscal tear and after reviewing the MRI did not think surgery was warranted.
He reassured Ms Wainwright there was no reason why she could not work and said her condition would not deteriorate by increasing her exercise and activity. On the contrary he said it would have a positive effect on her knee and herself.
Dr Somers, a cardiovascular specialist of long standing, reviewed Ms Wainwright on 9 December 2004.
He said she had no disability in daily living and her only complaint was of soreness and discomfort of the right knee and of pain in the upper end of the leg. He said she made no complaint about her office duties and there was no reason why she could not continue her office work.
On examination he found no significant findings and concluded Ms Wainwright was fully recovered.
He initially disputed Dr Ross Baker findings of post thrombotic syndrome although ultimately he did not take issue with them.
Dr Somers said he had never heard of Warfarin causing cramping or pulsating sensations in the legs, light headedness, or fatigue, and maintained its only side effects were the increase risk of bleeding and bloating of the stomach. He noted Ms Wainwright said Warfarin caused a bloating feeling in her abdomen.
He said the thrombus had disappeared (ts 5) although not completely dissolved and agreed the incompetence of the popliteal vein meant the thrombosis was still there and affecting the blood flow in that vein (ts 22).
He said work that involved lifting or the risk of trauma from injury in a remote area was ruled out because Ms Wainwright needed to be somewhere where she could be tested regularly, and the results obtained and monitored (ts 37).
Around this time Ms Wainwright saw Dr Webb, a clinical haematologist, who in his report of 9 December 2004 admitted pursuant to s 79 C disputed Dr Ross Baker's opinion that Ms Wainwright should remain on Warfarin life long. He thought the chance of a reoccurrence of the DVT was low.
Throughout this period Ms Wainwright continued performing light duties although there were some brief periods where she was certified as totally unfit for work.
Dr D'Souza said there was no restriction in her capacity to perform clerical duties before she stopped work in April 2005 (ts 513) and said he never advised her during that period that she should not be doing clerical duties. He also said that in the initial few months after she consulted him there was no complaint of any problems performing office duties.
Dr Hardistry reviewed Ms Wainwright again on 31 March 2005, and noted her knee had not settled down and she still had pain but did not consider surgery was warranted.
In April 2005 Ms Wainwright developed abdominal pains and Dr D'Souza suggested she avoid going to work until she saw specialists. Despite investigations Dr D'Souza was never able to establish the cause of the abdominal pain which seemed to go on and off for long period of time, although he thought Warfarin may have been one of the causes. He also thought it may be a gastrointestinal problem and treated her with antibiotics (ts 514).
Ms Wainwright has not worked since those abdominal pains of April 2005.
Dr D'Souza said it was at this time the other symptoms evolved and her knee pain became worse (ts 513) and the Warfarin became more of an issue as Ms Wainwright was concerned about its side effects and became very focused on it being the cause of her multiple pains and problems (ts 569).
Dr D'Souza's felt Ms Wainwright needed vocational rehabilitation (ts 568) as people out of work for long periods often had mental blocks about returning to work and such a return could cause additional stresses (ts 568).
By late April 2005 Dr D'Souza said Ms Wainwright showed all the clinical signs of depression and referred her to a psychiatrist, Dr Loke. Dr D'Souza said there was no prior indication of any psychological or physical dysfunction.
Dr D'Souza felt Ms Wainwright's depression was probably related to the chronic pain from the injury to her right knee and calf and the lesser pain symptoms in her right ankle, left elbow and lower back and thought the depression had probably been present for about six months (ts 515).
He said people with depression could still work until they reached a critical phase whereupon they become dysfunctional and need treatment.
Dr Loke was consulted by Ms Wainwright but did not give evidence.
Dr McComish is a physician who reviewed Ms Wainwright on 2 June 2005 and his report of 8 June 2005 was admitted pursuant to s 79C.
He reported Ms Wainwright had recovered from the DVT however said her reaction to the suggestion of lifelong anti-coagulation use had an effect 'in no small way' on her emotional state including leading to a degree of depression and had a significant adverse effect on her ability to work and her general psychological state.
His clinical examination revealed no abnormalities, deformity or swelling. He commented that the cause of her persistent musco-skeletal pain in the left lumbar region and around the right knee and ankle was not immediately obvious.
He said if she stopped taking Warfarin, her prospects of returning to work as a geo‑technician would be substantially improved.
Dr Dare is an occupational physician who saw Ms Wainwright on 8 June 2005.
At that time Ms Wainwright complained of ongoing pain in her right knee, right ankle, left elbow and left lower back as well as swelling to her right leg with prolonged sitting or standing and of being unable to walk for more than 15 to 20 minutes and depression. He said she made no complaint of injury to her neck or shoulders or pain in her joints.
He believed she had recovered from the soft tissue injury to her left elbow, lumbar spine, right knee and right ankle and said there was little wrong with her right knee or right ankle. He did not consider she had any significant ongoing injury to her lumbo sacral spine and thought she was fit for full time work in an office environment without any restrictions and would be fit to return to work as a geo‑technician once she was off Warfarin (ts 1094).
He considered Ms Wainwright's major problems were the isolation associated with her work and Warfarin use and her concerns that if she suffered further trauma or a significant bleed there could be considerable delays before she obtained medical assistance.
Dr Robinson an orthopaedic surgeon specialising in knees (ts 685 ‑ 687) initially saw Ms Wainwright on 29 August 2005 and diagnosed a torn medial meniscus of her right knee, soft tissue inflammation in the region of the olecranon bursa on the left side; osteoarthritis in the low lumbar spine; and damaged medial collateral ligament of the right ankle.
He organised MRIs, ultrasounds, x-rays and bone scans over the next couple of months and subsequently recommended facet joint injection, a right knee arthroscopy, chondroplasty and a probable lateral release procedure.
A pain drawing completed by Ms Wainwright at Dr Kent, an anaesthetist and consultant in pain medicine, request showing the areas of her body where she felt pain was admitted under s 79C. It was completed on the 24 November 2005 and shows those areas as the right leg below the knee, the left arm below the elbow, part of the lower back, and part of the left flank (exhibit 22.170).
Around January 2006 Dr D'Souza recommended Ms Wainwright begin rehabilitation with light office based duties in Perth graduating to normal duties over a period of time (exhibit 9.62).
Ms Wainwright saw the Commonwealth Rehabilitation Services (CRS) in March 2006, after contacting them in October 2005. The delay, it seems, was caused by Dr D'Souza wishing to see Ms Wainwright before he completed the appropriate form and her delay in attending upon him.
On 20 April 2006 the defendant advised Ms Jankovic, a rehabilitation officer employed by CRS, they were able to offer Ms Wainwright clerical duties at the mine site and possibility clerical duties at their state headquarters in Perth. When told of this Ms Wainwright expressed concerns about her mental health and asked for assistance with it.
Dr D'Souza advised Ms Jankovic it would be appropriate to start a graduated return‑to‑work on clerical duties at a local rather than remote location on a three day week, four‑hour day.
Ms Melville who took the file over from Ms Jankovic was, on 23 May 2006, advised by the defendants that they would ensure on site Warfarin monitoring and that general clerical duties were available for a four week period in Perth with the remainder of the work at the mine site. They said Ms Wainwright would need to work up to an eight‑hour shift in order to return to that site.
CRS concluded that substantial gains were unlikely and vocational rehabilitation was not recommended due to a number of issues however they thought Ms Wainwright should be counselled by a clinical psychologist and if deemed medically appropriate, referred for a pain management/activity based programme to improve her physical and psychological state.
Dr D'Souza said he recommended office based duties in Perth because even though her employer offered to monitor Ms Wainwright's blood in the north‑west, there were often problems relaying the results and there was also a risk that any further injury involving bleeding in a remote location would complicate her medical position and it would be easier to supervise her return to work from the city.
Dr Harper, a specialist occupational physician since 1986, saw Ms Wainwright on three occasions, the first being in May 2006.
When he first saw her she reported symptoms of pain to her right knee, right ankle, low back, left elbow, abdominal wall itching, mood changes, loss of libido and aching and redness of the hands. She said the mood changes had remained stable for the past four months; however the other pain symptoms were increasing.
He agreed she did not complain of any shoulder pains nor of injuring her shoulders in the November 2003 fall and said when he saw her in May 2006 her shoulder movements were normal (ts 317).
In July 2006 Dr D'Souza recommended facet joint injections and although arranged they did not proceed. Dr Robinson said it would have been useful if Ms Wainwright underwent these injections.
Dr D'Souza's note of 13 July 2006 revealed Ms Wainwright told him she was not going to rehabilitation because of the legal proceedings (ts 577). He thought she may have had a psychological block to rehabilitation and the pending litigation may have been acted as a barrier to it (ts 562).
In August 2006 the defendant repeated its offer of light duties at the mine site (exhibit 2.108). In early September 2006 Ms Wainwright asked for her belongings to be returned (exhibit 7) and the same month her employment was terminated as she was not able to return to her pre‑accident employment as a geo‑technician (exhibit 2.111).
Dr D'Souza said Ms Wainwright did not tell him of the August 2006 job offer (ts 571) and in retrospect, bearing in mind she had been flying in and out to the mine site whilst on Warfarin for a year and a half said he probably would not have been concerned about her taking the job, other than his concern that if there was an accident it could be potentially serious.
Dr D'Souza reported, in September 2006, Ms Wainwright was fit for restricted duties.
On 27 September 2006 Dr Robinson performed a medial meniscectomy repair and smoothed down damage behind the kneecap. As a result Ms Wainwright was certified totally unfit for work for a short time however thereafter was certified fit for work light duties with some restrictions.
Dr Robinson said Ms Wainwright would be able to return to work in a clerical capacity from the point‑of‑view of a knee surgeon and the damage to the right ankle was not particularly disabling (ts 695).
In November 2006 he recommended she be assessed by a pain relief expert and undergo facet joint injections and a possible rhizotomy and undergo steroid injection of the right foot.
He said her reports of constant right buttock and lower back pain could be consistent with the spontaneous activation of a pre‑existing asymptomatic lumbarisation, retrolisthesis or spondylolisthesis however their post‑accident exasperation would be due to the trauma of the incident. He said she reported constant back pain from the first to last time she consulted him and claimed she could only sit for no more that 10 minutes (ts 693).
Dr Robinson saw Ms Wainwright again in March 2007 and noted she was complaining of pain to the right knee, right buttock, low back, back of the left elbow and right ankle joint. On examination she was able to slowly fully extend the knee, there was no muscle wasting and she reported tenderness to various parts of the body.
He noted she claimed to take 10 to 12 Panadeine Forte tablets per day and approximately four Panadeine tablets per day, and used a TEDS stocking to control the swelling.
Ms Wainwright saw Dr Taylor, a consultant rheumatologist, and his report of 1 August 2007 was admitted under s 79C.
He noted she complained of discomfort in her lower back, right knee, and right lower leg and she reported that two months before the consultation she had developed right anterior shoulder pain.
In addition she complained of more generalised pain through most regions including her hands, which set in at the time of the shingles and depression. He did not think this was related to any underlying arthropathy and recommended a trial of Gabapentin.
On 7 March 2007 Dr Ross Baker thought it was time for Ms Wainwright to cease Warfarin. Dr Taylor noted her abdominal bloating reportedly ceased when she did so.
Exhibit 22.182, is a pain drawing of September 2009 and the pain is depicted on extensive areas of Ms Wainwright's body. The pain drawings dated November and December 2009 showed no real change from the September position (exhibits 22.183 ‑ 22.184).
Dr Robinson said Ms Wainwright first presented with major shoulder pathology in October 2010 and he could not confidently say the shoulder injury related to the accident.
When he last reviewed her on the 25 October 2011 he noted she was complaining of pain to the shoulders, left elbow, neck, mid-back, low back, right ankle and right knee and was taking four to eight Nurofen tablets, and one Panadol tablet a day. Further Ms Wainwright reported experiencing pain with household duties such as vacuuming, sweeping, doing the washing, and said she could walk for only 50 m, and was restrictions in her ability to stand for any extended period of time.
He said, before seeing the surveillance footage, she was unable to return to her pre-accident duties in remote locations due to the injuries sustained and further treatment was not required other than for the shoulder.
When shown the surveillance footage he agreed it showed Ms Wainwright able to twist her back, and bend forward and did not show signs of any ongoing low back or shoulder problems and was not consistent with her clinical presentation .Dr Robinson said based on the footage he saw (middle of 2010) Ms Wainwright was fit to return to full‑time clerical work after a short period of physio and rehabilitation however maintained she would not be fit to work as a geo‑technician (ts 694).
In reaching that conclusion he assumed Ms Wainwright was not on severe or heavy dosage of painkillers at the time of the surveillance as they would mask the pain and enable her to carry out a lot of the activities shown on the surveillance footage even with those injuries.
Dr Ng has been a specialist rheumatologist since 1979 and saw Ms Wainwright on 20 May and 26 June 2009, 25 October 2010 and 24 January 2011.
He said since her first consultation Ms Wainwright reported continuing to experience pain in the right knee, ankle, left elbow, and back as well as other joints unassociated with the initial injury and reported significant restriction of joint mobility, swelling or deformity. She also reported malaise associated with tiredness, loss of stamina and muscle/joint stiffness.
Notwithstanding the complaints Dr Ng could not fault her peripheral joints and all investigations displayed normal results with no neurological defects. He said there was a paucity of physical abnormalities.
Dr Ng accepted Ms Wainwright's complaints as true and as she reporting pain and all other causes had been excluded, diagnosed fibromyalgia. He felt this was the most likely explanation for her widespread musculoskeletal symptoms and pain to other parts of her body not directly traumatised by the accident.
Dr Ng described fibromyalgia as ligamentous muscular pain. He said it is not a positive diagnosis but an explanation of last resort to account for widespread symptoms of no known pathological basis and for which there was no known cure (ts 307). He said fibromyalgia was not objectively verifiable in a clinical context. His diagnosis depended entirely on the veracity and acceptance of Ms Wainwright's subjective complaints of pain.
From October 2010 he noted that although she continued to be troubled by other pains, her shoulders had taken centre stage amongst her complaints, especially her right shoulder. He agreed it was odd that she did not have any shoulder symptoms until 2010 (ts 312).
Prior to seeing the surveillance footage he said Ms Wainwright had a permanent disability of the lumbar spine, and no significant permanent disability in her right knee nor her left elbow and said her injuries were predominantly soft tissue. At that point he believed she remained totally unfit for employment because of ongoing chronic exasperations of musculoskeletal pain in various locations associated with significant functional disability.
After seeing the surveillance footage he said he would not diagnose Ms Wainwright with a back disability and said there was nothing wrong with either her back, neck upper limbs, ankles, elbows or shoulders. He said if she had suffered arthritis it must be in remission and if she had any traumatic disability, she had recovered from it quite significantly. He said it was surprising to see her moving in that manner as she had been complaining there was nothing she could do to give comfort to her body. Dr Ng also said he would not make the diagnosis of fibromyalgia (ts 317 ‑ 319).

He said he manner in which she sat with her legs flexed, swung her knees back and forwards on the edge of the seat, sat straddled on the bench twisted her body to lean on the table top, leant on her left elbow (ts 310), moved without any display of pain, put her jacket on without hesitation, wore high heals, sat for that length of time, and bent down to weed was inconsistent with his diagnosis and her reported history and the images were totally opposite to her professed position.
Even allowing for fluctuations of severity of symptoms given the history she portrayed as a person totally disabled by her symptoms, he said he would not have expected to see Ms Wainwright do all of the activities shown on the surveillance footage.
Dr Ng said that if a dosage such as two, four or six Panadeine was taken at the time of the surveillance and it relieved the pain so significantly that she could pass as a normal person, her level of pain could not be significantly severe (ts 31). He said in any event, she told him she used Nurofen which is a weaker analgesic.
He agreed the four pain charts completed by Ms Wainwright were inconsistent with her movements on the surveillance footage.
Having seen the surveillance footage and taking a cautious approach he believed she would certainly be able to work full‑time in a clerical capacity where the work was not too strenuous and did not involve lifting.
He did not agree that she was fit to return to a clerical position from June 2006 (the date of the first surveillance footage) and said it was only with the benefit of the subsequent surveillance footage which included material from 2010 that he had the confidence to say she could return to full‑time to clerical work provided there was no significant lifting (ts 329 ‑ 333).
Ms Wainwright also consulted Dr Watson, a specialist consultant physician, on two occasions being 21 July 2009 and 25 August 2009. Dr Watson gave evidence.
He reported that as a result of the accident Ms Wainwright probably suffered a soft tissue injury to the right knee; may have suffered an injury to the right calf; certainly suffered a soft tissue injury with bruising to the right ankle; suffered a laceration over the left elbow and probably some deep soft tissue injury; suffered a soft tissue injury to her lumbo-sacral spine; and a deep vein thrombosis involving the veins in the right calf and the popliteal and femoral veins and developed symptoms of depression.
Although she complained of widespread joint pains involving the right knee, ankle and elbow and lower back and more generally, looking objectively at the results of general examination, imaging and laboratory data Dr Watson said there was nothing to support a systemic illness with inflammation.
Examination of the shoulders, knees and ankles revealed no signs of impaired movement.
Dr Watson noted Ms Wainwright's problems were largely unresolvable and said she needed support and appropriate medication for her anxiety and depression and said further investigations by specialists were not likely to be of much benefit to her.
He agreed there was no evidence of post-thrombotic syndrome however said Ms Wainwright had an increased risk, albeit a low risk, of developing that syndrome and another thrombosis. He agreed that when he examined her in 2009, he did not see any signs of a post-phlebitic limb nor notice any swelling in her right leg (ts 726) and agreed with Dr Steve Baker's advice to wear a graduated compression stockings for five years (ts 723).
He said the absence of active facet joint arthritis in L5/S1 on a bone scan approximately two years after the trauma meant the arthritic condition in the lower back would not have been related to the trauma (ts 721) and the loss of lordotic curve in her spine was more likely due to a congenital condition being the sacralisation of the L5 (ts 719 ‑ 720).
He said she needed to see a general practitioner on a two to four weekly basis because it was not necessary for her to continually see specialists however someone had to coordinate and control her management plan (ts 724). He said she needed review by a psychiatrist probably monthly.
Dr Watson was not asked to view the surveillance footage.
He pointed out the relapse rate for depression of close to 50%, which was quite daunting for a person coming off treatment for depression (ts 727).
Dr D'Souza said when he saw Ms Wainwright on 21 June 2010 she was complaining of multiple tender points on her body, temples, jaw, shoulder, elbows, lumbar muscles, outer hips, inner knees and he came to the impression that fibromyalgia was causing the pain (ts 550). Although he took into account the specialist findings, he independently reached that diagnosis.
He agreed fibromyalgia was not a diagnosis but a description consistent with the subjective complaints of a patient after all other explanations for pain had been excluded (ts 571 - 572).
He agreed his diagnosis of fibromyalgia was based on Ms Wainwright's reported symptoms.
Mr Richard Langhams, now deceased but formerly adjunct senior lecturer in pharmacy at Curtin University, report of 23 November 2010 was tendered pursuant to s 79C.
He was instructed that Ms Wainwright advised she was suffering from side effects of Warfarin including all over body aches, stomach bloating and aches, cramping and pulsating in the legs, spider veins in the left foot, light‑headedness, fatigue, sweats on the face, cessation of menstruation, a rash across the bridge of her nose and a unpleasant taste sensation.
After consulting the medical literature he noted that reported infrequent adverse reactions to Warfarin included chest, abdominal, joint, muscle and other pain, abdominal cramping, stomach bloating, fatigue, lethargy, dizziness, taste perversion and rashes.
When Dr D'Souza saw Ms Wainwright in February 2011 he did not consider she was depressed enough to require mediation. He said this meant she could manage and function with her depression without medication or psychotherapy and did not mean she had ceased to have any symptoms. He believed she had ceased antidepressants in about 2009.
In November 2011 Dr D'Souza reported Ms Wainwright was unfit to return to work as a geo-technician and suggested retraining and a graduated return‑to‑work on a part time basis. He believed she required consultation with a GP three or four times per year.
After considering the bone scans of the 19 September 2005 and 25 May 2009 he said it was possible the accident caused an exasperation of pre‑existing asymptomatic degenerative changes to her back whereas previously he said it was probable and said based on the radiological record there was no firm link between the accident and the radiological changes (ts 517-519). He said the radiological changes shown did not point to any trauma related changes to Ms Wainwright's back (ts 564).
When shown the surveillance footage, he agreed it appeared to show Ms Wainwright leading a relatively normal lifestyle (ts 541). He said he could not see any physical restriction on the hour and a half surveillance footage that would impair her ability to work in a clerical context or as a librarian or secretary and said she moved more freely than he expected from someone suffering from anything other than very mild symptoms of fibromyalgia.
Dr D'Souza said if Ms Wainwright's normal condition was as portrayed in the footage she did not need rehabilitation and it would be very difficult to say anything more than she had very mild symptoms of fibromyalgia (ts 567) and said if she was not taking pain killers, he would not expect her to have that range of movements with the degree of soft tissue pain she professed to have. (ts 567).
He said provided she was taking pain killers, her movements on the footage were not inconsistent with her presentation as medication would allow her to move relatively freely for a short period of time (four hours) and if she was on medication when the footage was taken then, notwithstanding it showed her moving relatively freely, the underlining problems were still there.
He agreed there was no sign of restriction when she removed her jacket nor any restriction of movements of her left elbow on the surveillance footage and said she had not reported any elbow problems to him in November 2010.
He said her left leg problem shown on the video was not a continuing left leg problem but rather a new problem (ts 579).
When asked directly whether he would have difficulty maintaining his diagnosis that Ms Wainwright still suffered from work injury related symptoms in light of the footage Dr D'Souza replied 'that's correct … I am basing that (diagnosis) on the patient presentation to me' (ts 562).
Notwithstanding the surveillance footage, his opinion was that, rehabilitation should start with part time duties of 10 to 15 hours per week and he did not consider Ms Wainwright could initially work a full eight hour day five days per week.
He agreed Ms Wainwright's prescriptions for Panadeine Forte from 30 November 2005 to 13 September 2006 were not sufficient to enable her to take on a regular basis two to six tablets per day. His last prescription for Panadeine Forte was dated 6 December 2007.
He pointed out that Neurofen Plus could be purchased directly from the chemist.
He agreed that he did not physically examine Ms Wainwright's back in 2006 or 2007 and did not have a note of her complaining or lower back pain in November 2010.
He agreed that she made no complaint in either December 2010 or January 2011 of restrictive neck movements or lower back pain extending to her legs.
He said the two major problems Ms Wainwright currently experienced were her shoulder pain and the soft tissue pain, and the later was consistent with his original diagnosis of fibromyalgia and if the surveillance showed isolated events taking place whilst on medication he would maintain his original diagnosis (ts 582).
He said he was unable to make any connection between her shoulder and the accident and the shoulder pain she reported was disproportionate to the radiological signs (ts 575).
Dr Ross Baker is a clinical haematologist and consultant physician whose reports were admitted under s 79C. He last reviewed Ms Wainwright on 1 May 2011. He found no evidence of post‑thrombotic syndrome, and noted Ms Wainwright's multitude of symptoms including whole body ache, fatigue and lethargy were unlikely to be related to the DVT. He noted she was wearing her counter pressure stocking.
Dr Harper, saw Ms Wainwright again on the 23 March 2011 and 24 November 2011. He said one of the difficulties she faced was that no employer would consider her for a manual job given her eight‑year history of lower back pain, her requirement for medication and the variability of her symptoms.
He said that at the consultation of 23 March 2011 she essentially presented the same as in May 2006 with the exception that her right knee had recovered however her back seemed to be worse.
He noted she had developed a number of additional symptoms which lacked a clear relationship to the original injury and increased the complexity of her overall status .He did not think she needed home help.
Dr Harper's last consultation on 24 November 2011 did not result in any changes in his view as Ms Wainwright's symptoms were basically the same. Essentially her overall disability and Dr Harper's opinion of her work capacity did not undergo any significant change during the period she consulted him.
He felt she was unfit for all forms of gainful employment, however with treatment, physical and psychological, he considered she would be able, and it would be therapeutical for her, to return to the workforce in a non‑manual capacity but not a physically demanding job.
Dr Harper said Ms Wainwright showed a degree of over responding or exaggeration of her symptoms and her description of her degree of disability erred towards the greater in terms of disability rather than the lesser given her injury (ts 397). He said she was not a stoic person and had difficulty coping and managing the pain and its fluctuations and the impact of it on her life to a degree which he described as a little bit beyond normal.
He said the adverse impact of the symptoms on her general wellbeing and her general complaints of pain overall after having a relatively specific initial injury and inability to cope with life was a result of her difficulties managing fluctuations in pain and anxiety, and she needed treatment to get over that impact and make the transition from where she had been to where she was currently (ts 388).
Dr Harper agreed he initially relied on Dr Ng's diagnosis of fibromyalgia however said he made his own confirmatory diagnosis using Ms Wainwright history of pain, fatigue and relatively generalised upper back tenderness and the absence of any other alternate diagnosis.
He qualified this by saying as there was no other diagnoses this left open the possibility of fibromyalgia and the highest he could say was there is a possibility Ms Wainwright's condition was consistent with fibromyalgia.
He said until her symptoms and ability to cope improved she would not be able to compete or maintain gainful employment in the real sense.
Even after seen the surveillance footage Dr Harper did not change his opinion, stating that, seeing a person sit, for example, for a long period of time on one occasion does not necessarily reflect a person's capacity to perform that activity over a longer period of time.
He agreed he could not say there was an activation of degeneration in Ms Wainwright's back as a result of the accident (ts 380, 381).
Dr Adams a medical practitioner working in the field of sexual health assessed Ms Wainwright after seeing her on one occasion only, on 21 April 2011.
She reported a loss of interest in sex saying her libido had not improved since stopping antidepressant medication and she did not feel she would be physically able to having sex due to the pain.
Dr Adams carried out investigations for hormonal FSH and oestradiol levels which showed menopausal levels.
Dr Adams said it is usual for the loss of libido to accompany chronic pain and depression however menopause is also commonly associated with loss of libido and agreed he could not rule out menopause as being the cause of loss of sexual function.
Dr Dare reviewed Ms Wainwright on 27 September 2011, when she reported a depressed mood, general fatigue, tiredness and significant ongoing constant generalised pain involving most of her body from the neck into her shoulders, arms, back and lower limbs, in the areas depicted in her pain drawings of 2009. Upon examination no abnormality was revealed although he noticed Ms Wainwright's right knee was creaking on movement.
Dr Dare could not attribute the symptoms involving Ms Wainwright's neck, shoulders, back and lower limbs to the soft tissue injury suffered in 2003, although he could not attribute them to anything else, and said there was no evidence Ms Wainwright's generalised non‑specific symptoms were related to the fall. Dr Dares' opinion was that fibromyalgia was not a valid medical condition but rather a description of symptoms (ts 1095).
He repeated his opinion that the injury to the left elbow, right knee and right ankle had resolved as had the injury or aggravation of the lumbo sacral spine. Dr Dare said the shoulder injury did not relate to the fall and Ms Wainwright's restricted range of movements on examination were due to lack of effort on her part.
He agreed that any depressive symptoms and there relationship to the fall were outside his area of expertise.
He said from a purely physical point Ms Wainwright had been fit to work full time in an office environment since 2005 without restriction and there was nothing in the surveillance footage causing him to change that opinion.

Surveillance footage

The surveillance footage was obtained on 23 June 2006, 8 July and 25 July 2006, (exhibit 25.1), 5 June 2007 (exhibit 25.2), 12 June 2010 (exhibit 25.3), 28 May 2010 and 12June 2010 (exhibit 25.4) 5, 6 and 13 November 2010 (exhibit 25.5) and 22December 2010 and 4January 2011 (exhibit 25.6).
They show at various stages Ms Wainwright standing, sitting, walking, talking, driving, adjusting her seatbelt, reversing the vehicle, getting in and out of motor vehicles, bending into a vehicle, walking up steps, carrying what appears to be a light ladder a short distance, adjusting her hair with both hands behind her neck, carrying, drying and helping a child dress, bending, dangling and swinging her feet, resting on her arms, leaning on her elbow, interacting with people in a normal manner, pointing, gesturing stepping up and down kerbs and steps, sitting with one leg over the other, removing a jacket and scarf, swinging her legs over a bench, leaning on both elbows, sitting for lengthy periods, carrying shopping. posting mail, bending over pulling weeds up from the driveway, making a painting motion over a bench type object on the back veranda, bending over and lifting one end of a trolley containing an item in a flat cardboard carton and manoeuvring it up steep steps to the front porch of the house then helping remove the item and push it inside.
They do not show Ms Wainwright working or performing household duties. The July 2006 footage arguably shows Ms Wainwright with a slight limp.
Further activities have been referred to when detailing the evidence of Dr D'Souza, Dr Ng and Dr Robinson.

The psychiatric evidence

Two experienced consultant psychiatrists gave evidence. The treating psychiatrist was not called as a witness.
The plaintiff called Dr Fitch who saw Ms Wainwright on 13 March 2006, 23 October 2006 and 1 December 2011.
The defendant called Dr Chen who saw Ms Wainwright on 15 September 2005, 1 September 2007 and 27 October 2011.
Both psychiatrists noted there was no prior history of depression and described difficulties obtaining a clear history from Ms Wainwright.
Dr Fitch said that on the first occasion Ms Wainwright was very distressed, tearful and transfixed with what had happened to her, on the second occasion she was sedated, distressed and tearful and conceded that on the third occasion her report was prepared and edited with haste.
Dr Cheng said Ms Wainwright was vague and difficult to pin down (15 September 2005), and had difficulties giving specific answers (1 February 2007) and was vague with details, sometimes unable to recall information and at other times able to make specific references to earlier reports (27 October 2011).
Dr Fitch says Ms Wainwright is totally and permanently incapacity for all forms of work from a psychiatric perspective.
She said Ms Wainwright was currently suffering from a major depressive disorder of chronic to moderate severity in the context of chronic pain and considered Ms Wainwright had significant anxiety and depressive symptoms incompatible with work since 2005.
She said this condition was related to the 2003 fall because of the chronic pain, loss of usual role and activity, and work related stress.
Dr Fitch said the events leading to the April 2005 cessation of work as reported by Ms Wainwright were, inter alia, the fall, the fact she was required to fly in a small plane shortly after the incident and developed DVT, the requirement to take Warfarin which she believed adversely effected her health, working at a remote location with the risk that any further trauma may not receive immediate medical treatment, the shingles suffered in 2004, the increasing physical symptoms, swollen stomach and abdominal pains of 2005 and the fear of internal bleeding all of which were believed by Ms Wainwright to be accident related.
This was complicated by Ms Wainwright's believe her injuries were not taken seriously and that the defendant had not addressed her medical problems by giving her time off work to attend medical appointments or funding (at least initially) her knee surgery, counselling or psychoanalysis as recommended by some doctors and later offering her full‑time employment at the remote mine site at a time her doctors were recommending a return‑to‑work trial at a city location.

Mr Cole

Mr Cole admitted saying 'he wasn't going to help Barrick crucify Ms Wainwright' and 'no‑one ever wins against Barrick, who makes millions but would not look after its employees' and said he made those remarks in the context of Ms Wainwright having a passion for her job and losing it through no fault of her own.
The defendant submits these remarks show Mr Cole is partial. Having heard his evidence I reject this submission and do not consider these remark affect his credibility. I found him to be a credible witness whose evidence I accept.

Associate Professor Nedveld

Associate Professor Nedveld's was not contradicted by any expert and although as indicated in my findings on liability I rejected his conclusion that there should be a prohibition on workers entering the ute tray in almost all circumstances I generally accepted his evidence. Such a prohibition is, in my opinion, inherently unrealistic.

Mr Fallon

His memory was clearly affected by the lapse of time. His evidence was of little assistance.

Dr Watson

Dr Watson was not asked to view the surveillance footage. Accordingly I attach less weight to his opinion than I otherwise would as he was not in possession of all available evidence.
Contrary to the defendants written submissions he did not agree Ms Wainwright was fit for full time clerical work with no restrictions and in fact expressed no opinion on her working capacity.

Dr Adonis

Dr Adonis treated the plaintiff from December 2003 until approximately August 2004.
I accept his major focus was on managing the life‑threatening DVT, however in light of the time frame within which he was consulted his evidence is of little assistance on the critical issue of the working capacity of Ms Wainwright.
Although he was not asked to view the surveillance footage this is of little consequence as it was not taken till well after Ms Wainwright ceased consulting him.

Mr Nugawela

The practise of counsel giving evidence is exceptional and to be discouraged because of the real potential to disrupt and derail the proceedings.
At the end of the day, however, I accepted Mr Nugawela's evidence, as witness, regarding the conversation with Dr Loke although I rejected his submission, as counsel, on the effect of that evidence regarding the Jones v Dunkel direction.

Dr Dair

Dr Dair's evidence effectively was that Ms Wainwright had recovered from her soft tissues injuries very soon after the accident and there was no reason why she could not return to her pre-accident (from a physical view point) employment after 2007 once the Warfarin was stopped.
I place no weight on his conclusions because he acknowledged his observation that there was little wrong with Ms Wainwright's right knee and right ankle was proven wrong (ts 1102) and because his evidence that on consultation he could not see a great deal, or any, swelling in the right leg compared to the left was contrary to his report which referred to Ms Wainwright's complaints of ongoing swelling and specifically stated it was likely that she would continue to have ongoing swelling. When confronted with this inconsistency he said that portion of the report was an oversight and did not make any sense and should be deleted (ts 1105).
In light of those matters and Dr Dair's explanation for them I am not confident of the accuracy of the other information and conclusions provided by his evidence and attach no weight to it.

Dr Somers

I found Dr Somers' evidence unpersuasive.
He agreed that at the time he prepared his reports he was not in possession of significant information from Dr Baker.
Additionally he was not aware Ms Wainwright had been placed on restricted office duties and when made aware, in cross‑examination, it seemed to me he became more defensive and entrenched in his view that if Ms Wainwright was working full‑time, even in an unrestricted fashion, she had fully recovered.
Such a view is contrary to the evidence which establishes Ms Wainwright was working full‑time while suffering from a DVT and whilst overcoming injuries sustained in the fall and suffering from depression. The fact that I have found she has exaggerated the extent of those injuries does not mean that those injuries did not exist and it is contrary to the evidence to say that she had fully recovered because she was working full‑time.
Further when asked whether it was ideal for a person prone to DVT to sit in a cramped position in a small plane, Dr Somers' suggested the solution was to 'get a larger plane'. This displayed a lack of insight, with respect, to the position Ms Wainwright was in.
Dr Somers approach to these issues causes me to lack confidence in his evidence and I do not rely upon his conclusions.

Reports tendered under s 79C of the Evidence Act

A large number of reports were tendered under s 79C of the Evidence Act.
Obviously I have not had the advantage of seeing the authors of those reports examined or cross‑examined and although in the main the contents of such reports are not contentious where that evidence conflicts with the evidence of witnesses given in court, I prefer the latter.
Whilst I accept Mr Langham's (deceased) has faithfully compared Ms Wainwright's complaints to the adverse reactions reported in some medical literature, as his report was contentious and I have not had the benefit of assessing his evidence after it has been examined or cross‑examination I do not rely on his report.

Findings on injuries sustained

As a direct consequence of the fall of the 24 November 2003 I find Ms Wainwright sustained physical injuries to her right leg, right knee, right ankle, left elbow and back and subsequently developed a deep vein thrombosis in the right leg and suffered a depressive episode.
My conclusion that the surveillance footage accurately represent Ms Wainwright's capacity to function on a day‑to‑day basis leads me to conclude there is currently essentially nothing wrong with her right leg, right ankle, left elbow and back and that has been the position since approximately 2005 and further causes me to doubt Ms Wainwright's credibility to such an extent, that I do not accept the accuracy of her complaints to the various medical practitioners other than as outlined below.
I find the extent of each injury is as follows.

Deep vein thrombosis and right leg pain

As a result of the accident Ms Wainwright suffered a deep vein thrombosis in her right leg which was diagnosed on 19 December 2003. She was hospitalized for five days, underwent injections and blood tests and upon release was prescribed oral Warfarin tablets which she took until March 2007.
The thrombosis was life-threatening and extensive reaching to all the calf veins with extensions into the popliteal and femoral veins.
By April 2004 it had almost completely resolved, except for residual recanonising and thrombosis in the right popliteal vein.
Currently the popliteal vein remains incompetent which effects the blood flow through the vein.
As a result of the thrombosis there was a slightly higher chance of another thrombosis occurring, an increased risk of bleeding, a requirement for constant blood monitoring whilst on Warfarin and an increased risk that any trauma could cause bleeding and/or if any significant bleeding occurred it could create complications.
Ms Wainwright was required to and did wear a pressure stocking and suffered from mild post‑thrombotic syndrome.
She was absent from work as a result of the thrombosus for only a short period of time, and returned to work (with the exception of brief periods) on light duties from the date of the accident until April 2005. I am satisfied it did not prevented her from performing light duties.
She was shocked and distressed as a result of the thrombosis and her reaction to being prescribed Warfarin, initially indefinitely, affected her emotional state and contributed to her general psychological state.
I find however she has suffered no residual disability from the thrombosis other than the incompetent popliteal vein and a slightly increased risk of a thrombosis reoccurring. (Dr Ross Baker, Dr Steve Baker, Dr Watson).
The right leg injury is otherwise properly described as a soft tissue injury which resulted in no residual disability. As early as 3 June 2004 Dr Adonis noted Ms Wainwright's right leg was settling and there was no more swelling and reported on 20 July 2004 she was progressing quite satisfactory.
I find that in the period immediately after the accident, Ms Wainwright experienced significant pain in her right leg until the DVT was diagnosed. Thereafter I accept the leg was painful and wearing heavy work boots aggravated the pain. I find this moderate pain was accompanied by occasional swelling in the medium term which did not prevented her from performing light duties but caused inconvenience and some limitations at work and to her domestic activities.
I find Ms Wainwright has no ongoing restriction on a day‑to‑day basis as a result of right leg injury and I am not satisfied she suffers from any permanent disability to the right leg, apart from the DVT. Even accepting the slight limp shown on the 2006 surveillance footage is a result of the right leg and or knee injury my conclusion remains the same.

Right knee

I accept the evidence of Dr Robinson that Ms Wainwright suffered a torn medial meniscus of the right knee which required an arthroscopy, and medial meniscectomy repair which also involved smoothing down damage behind the kneecap which was performed in September 2006.
Until that surgery was performed I accept Ms Wainwright suffered from mild to moderate generalised pain and occasional clicking of the knee which caused some minor interference to her work and domestic activities but did not prevented her from performing light duties.
The defendant's insurers initial refused to fund this surgery and that decision and resultant delays in the surgery contributed to her general psychological state.
I accept Dr Robinson's evidence that Ms Wainwright last complained of knee pain in March 2007 and accept his evidence that notwithstanding the complete surgical success there would be some pain from the knee cap due to her joint damage. Other reports refer to her knee occasionally clicking.
I find there is no restriction on a day‑to‑day basis to her work capacity or domestic activities as a result of the knee injury but there is a mild permanent disability of the knee due to the very nature of the surgery.

Right ankle

Dr Robinson described the injury to the right ankle as relatively minor soft tissue damage to the medial collateral ligament.
There is no residual disability although in the short term there was pain and discomfort and swelling which inconvenienced Ms Wainwright at work and domestically.
Dr Robinson's evidence was that the damage to the right ankle was not particularly disabling and would not prevent her from returning to work in a clerical capacity.
I am not satisfied there is a permanent disability of the right ankle.

Left elbow

I accept Dr Watson's evidence that Ms Wainwright suffered a laceration to the left elbow which healed relatively shortly thereafter and a short‑term soft tissue injury which did not affect her domestically or at work other than for a relatively short period immediately after the accident when there was restrictions of movement. It did not prevent her from performing light duties.
I am not satisfied there is a permanent disability of the left elbow.

Back

I find Ms Wainwright suffered a soft tissue lumbar spine injury that settled in a relatively short period of time.
Dr Harper said that he could not say on balance there was activation or symptomisation of degeneration in her back as a result of the incident (ts 380 ‑ 381).
Dr D'Souza said Ms Wainwright had pre-existing asymptomatic degenerative changes in her spine. He agreed after viewing the various scans there was no activation of arthritis and that the highest he could say was there had possibly been an exasperation of pre‑existing asymptomatic degenerative changes caused by the accident.
Dr Robinson agreed that the pre‑existing congenital spondylolisthesis and sacralisation of the lumbar spine could cause facet joint and lower back problems.
Dr Watson agreed that the loss of lordotic curve was more likely due to the congenital condition in the sacralisation of L5 in the lumbar region (ts 720) and any arthritic condition in her back was not related to the trauma (ts 722).
Mr Ruscoe who treated on 14 separate occasions, and examined Ms Wainwright back on those occasions, noted on the last treatment (June 2004) that there was full range of movements and Ms Wainwright was completely pain free in her daily living.
I am satisfied that Ms Wainwright suffered a soft tissue injury to the lumbar spine. This injury caused mild pain, discomfort and inconvenience to her work and domestic activities and settled in a relatively short period of time.
I am not satisfied this resulted in any permanent disability nor prevented her from working in a clerical capacity.

Shingles, abdominal pain, shoulder pain, loss of libido and general pain condition

I am not satisfied the shingles sustained by Ms Wainwright in April 2004 and the abdominal pain in April 2005 are accident related.
Insofar as any current shoulder problem is concerned, the overwhelming evidence is that it is not accident related. (Dr Robinson, Dr Ng, Dr D'Souza).
Insofar as loss of libido is concerned, Dr Adams' evidence was that this could be caused by menopause and Ms Wainwright was menopausal. I am not satisfied any loss of libido is accident related.
I am not satisfied Ms Wainwright suffers from a general pain condition which has been variously described as fibromyalgia, chronic pain syndrome or chronic fatigue syndrome. All doctors agree there is no objective evidence to support this condition. Even if Ms Wainwright does suffer from fibromyalgia, chronic pain syndrome or chronic fatigue syndrome she has certainly failed to satisfy me that it is related to the accident.
The overwhelming evidence establishes there is no relationship between the general pain condition and the accident.
Dr Harper said it lacked a clear relationship to the original injuries, Dr Ross Baker said it was unlikely to be related to the DVT, Dr Watson said there was nothing to support a systemic illness with inflammation, Dr McComish said the cause of her persistent musco-skeletal pain was not immediate obvious, Dr Taylor did not think it was related to any underlying arthropathy, Dr Ng effectively said after seeing the surveillance footage he would not make the diagnosis of fibromyalgia (ts 317-319), Dr Robertson's evidence was to similar effect, Dr D'Souza said it would be very difficult to say anything more than she had very mild symptoms of fibromyalgia (ts 561) and at the highest said it could possibly be related to the accident (exhibit 9.28).

Conclusion in respect of physical injuries

The combined weight of the evidence relevant to Ms Wainwright's physical symptoms and their effect on her ability to work can lead, in my opinion to only one conclusion.
I am satisfied that individually and collectively they did not prevent her from performing light duties.
Ms Wainwright performed light duties from December 2003 to April 2005 whilst on Warfarin and before the knee surgery. That surgery improved her knee. Dr D'Souza said there was no restriction in her capacity to perform clerical duties before she stopped work in April 2005 (ts 513).
Dr D'Souza said, in retrospect, he would not have been concerned about Ms Wainwright taking the August 2006 light duty position other than for the fact that if she had an accident it would be potentially serious.
Ms Wainwright ceased Warfarin in approximately April 2007 and depression medication in 2009.
Dr Robinson, Dr Ng, Dr D'Souza, and Dr Cheng all said effectively that, after considering the surveillance, footage Ms Wainwright was fit to perform full‑time clerical work if her condition as depicted was her normal condition.
I find that if she was using medication at the time of the footage and it enabled her to move so freely that medication it would have enabled her to perform light duties. I have found Ms Wainwright's condition in 2005 was substantially the same or better than her condition in 2010/2011.
Although Dr Ng was not prepared to say she Ms Wainwright was fit to return to perform light duties as at the date of the first surveillance footage in 2006 after considering all the evidence I am satisfied Ms Wainwright was fit to work in a clerical position at the time she stopped work and has been since.

Conclusion in respect of psychiatric condition

I accept Dr D'Souza evidence that in April 2005 Ms Wainwright was suffering from depression.
The defendant is liable if its breach of duty as an employer caused or materially contributed to the condition.
Causation is not determined by reference to complex philosophical considerations, but as a matter of commonsense and experience: March v E & MH Stramare Pty Ltd. It is sufficient if Ms Wainwright proves that the defendants breach is a material contributing factor to that condition: Medlin v State Government Insurance Commission (1995) 182 CLR 1. Material in this sense means a not negligible contribution: State of South Australia v Ellis [2008] WASCA 200.
The matters referred to by Dr Fitch, Dr Cheng and Dr D'Souza such as the pain from Ms Wainwright's knee and other injuries including the DVT which had not completely resolved, her reaction to the requirement to take Warfarin, the constant monitoring of her blood and the requirement to travel to work in a small plane whilst recovering from the DVT do have a legal and factual connection with the accident. They materially contributed to Ms Wainwright's depressive condition and are casually related to it, so that whilst there is no evidence to establish the shingles (April 2004) or the abdominal pain (April 2005) are causally related to the accident I find the depressive episode of April 2005 is.
Other events occurring subsequent to the onset of that condition contributed to the extent of the condition including the defendant's insurer initially refusal, until approximately September 2006, to fund surgery to repair the right knee and the defendants offer of light duties employment at the remote mine site made whilst Dr D'Souza was recommending a return‑to‑work from a city location and the termination of Ms Wainwright's services when she failed to accept the offer (September 2006).
Further at various times Dr Cheng, Dr Fitch, Dr Harper, Dr D’Souza, Dr Watson and the CRS recommended psychological, psychotherapy or vocational rehabilitation to assist Ms Wainwright return to work and these programmes were not funded.
I accept Ms Wainwright's reaction to all of these events impacted on her psychological state. However the question remains as to whether in 2005 or at any other time this limited her capacity to be gainfully employed.
Dr Fitch describes Ms Wainwright's current condition as a major depressive disorder of chronic to moderate severity in the context of chronic pain, Dr Cheng, describes it as an adjustment disorder with depressed mood.
Dr Fitch described Ms Wainwright condition when she first saw her as a major depressive disorder, Dr Cheng as a major depressive episode.
Dr Fitch says Ms Wainwright is totally incapacitated from a psychiatric perspective from all forms of work and that has been her position since first seeing her in 2006. Dr Cheng says that since September 2005 when he first saw Ms Wainwright she has been capable of performing at least light duties.
I prefer the diagnosis and conclusion of Dr Cheng.
Firstly, he saw Ms Wainwright originally in September 2005. Dr Fitch first saw her in March 2006. This is only of minor significance however it is a matter I take into account.
Secondly, Dr Cheng's has viewed the surveillance footage and Dr Fitch has not. Dr Fitch did not view the surveillance footage because she said it had limited value in assessing psychiatric disorders.

The 2010/2011 surveillance footage is of considerable assistance in determining the accuracy of the physical condition portrayed by Ms Wainwright. Whilst Dr Fitch relied, in part, on the genuineness of what she was told as to the effect of the physical symptoms when presented with the opportunity to test that genuineness she failed to do so and that leads me to attach less weight to her evidence. It gave her an opportunity to gauge the truthfulness of what she was being told.
I accept surveillance footage has limitations, more so with psychiatric issues than physical issues, however the fact that Dr Fitch has not seen the surveillance footage is a factor which I have taken into account in preferring Dr Cheng's opinion.
I am aware that Dr Cheng's conclusion as to Ms Wainwright's ability to perform at least light duties was reached in 2005 when he first saw her and even before he viewed the surveillance footage.
Thirdly, Dr Fitch based her original diagnosis, in part, on the chronic pain from the DVT, shingles, knee and back as reported by Ms Wainwright. Her opinion as to Ms Wainwright's current work capacity assumes the chronic pain, diagnosed as Chronic Fatigue Syndrome by some and fibromyalgia by others, and assumes Ms Wainwright's incapacities are as she represented them.
I have found the extent and effect of Ms Wainwright's injuries is contradicted by the surveillance footage and has been exaggerated and even if Ms Wainwright suffers currently from chronic fatigue syndrome or fibromyalgia it is not caused or contributed to even 'not insignificantly' by the accident.
Whilst I accept the chronic pain was not the only factor relied on by Dr Fitch, her opinion was clearly based on the accuracy of Ms Wainwright's descriptions of the extent and effect of her physical limitations. I do not accept that Ms Wainwright has accurately described her injuries and limitations and this leads me to prefer Dr Cheng's conclusions.
I accept Ms Wainwright suffered from a depressive episode, mild to moderate, in April 2005 however I find it was not of such severity that it incapacitated her from performing light duties, which she had performed since December 2003.
Although taking medication for depression until 2009 I consider Ms Wainwright was able to perform light duties from the date of the accident and find there was modest interference to her general wellbeing as a result of her depressive condition.
I find currently Ms Wainwright, at most, suffers and will continue to suffer from an adjustment disorder, mild, with depressed mood.
Dr Cheng has consistently said there was no restrictions on Ms Wainwright returning to light duties from a psychiatric point of view and that the major limiting factor to her ability to work were her physical symptoms and the fact that she was on Warfarin. I have already found the physical injuries did not prevent Ms Wainwright from performing light duties nor did the taking of Warfarin as evidenced by the fact she worked whilst taking it from December 2003 till April 2005.

Conclusions in respect of working capacity

I find that when Ms Wainwright ceased work in 2005 she was capable of at least performing light duties and is currently fit to perform those duties. There is no physical or psychological condition or a combination of both that leads to a contrary conclusion.
I do accept however that from the date of the accident Ms Wainwright was not capable of performing work as a geo‑technical and is not capable of returning to anything other than light duties.
Although I have found she has exaggerated her injuries, Ms Wainwright did suffer a life threatening DVT and still has an incompetent popliteal vein and did injure her back, elbow, right ankle, right knee, and right leg and later suffered from depression.
Notwithstanding that I have rejected Dr Harper's conclusions as to her incapacity; the issues he raises about employability are relevant. The very fact of the accident, and the injuries suffered, irrespective of their severity, and Ms Wainwright's age would lead employers to shy away from appointing her to anything other than a light duty positions.

General damages

For the deep vein thrombosis, injuries to the right knee, right ankle, left elbow, back, and psychological condition I consider that the appropriate award for general damages in light of two periods of hospitalisations, requirement to wear support stockings, pain and suffering, loss of general amenities and inconvenience and interference with work and domestic activities and past and current psychological difficulties is the sum of $50,000.

Past economic loss

At the time of the accident Ms Wainwright was in receipt of a gross salary of $1,021.60 and pursuant to her employment contract for two out of each three week period received three meals per day whilst living at the campsite.
Although there is no evidence of the cost of meals, an allowance of $200 gross per week for 33.66 weeks per annum, making $129 gross per week for the year is claimed. I have allowed this, I consider that judicial notice can be taken of the cost of food and the amounts claimed are not unreasonable.
In addition, Ms Wainwright was contractually entitled to top hospital benefit fund and premium cover. There is no evidence of the cost of that cover.
Accordingly I calculate her pre‑accident employment salary as $1,150 per week ($1,021 + $129) as at the date of the accident. I have allowed a yearly increase using the consumer price index figures provided by the plaintiff in their particulars of claim of 15 March 2012.
I calculate Ms Wainwright's light duties salary as $1,109 per week based on the light duties base salary she was paid of $51,000 per annum plus the same food allowance ($980 + $129).
The plaintiff particularises that she continued receiving her pre‑accident wage until 6 April 2005 when she commenced suffering economic loss and claims past economic loss from 7 April 2005 (particulars of claim, par 7 15 March 2012).
Exhibit 31 shows the base salary paid by the defendant to clerical staff at the mine site from 2003 to 2011 for payroll officers, underground clerks, site liaison administrator, occupational health and safety advisors and receptionists. I consider the most comparable occupation to the light duties performed by Ms Wainwright is a receptionist. It is appropriate to increase that base salary by the same food benefit claimed by Ms Wainwright of $129 per week.
Exhibit 31 shows the receptionist's base salary from 2006 to 2008 increased at an average of approximately 5% per annum.
Irrespective of whether the calculation is performed using the receptionist's base salary together with the food benefit increased by 5% per annum or using Ms Wainwright's notional light duties' salary of $1,109 per week and increasing it by the CPI figures provided by the plaintiff in their particulars the results broadly speaking, are similar. I adopt the latter method.
This results in past economic loss as follows.
From 7 April 2005 to 30 June 2005, a total of 84 days, being the difference between the annualized $59,800 gross (geo‑technician) and annualized $57,668 (clerical) gross calculates to, using the applicable tax rates, a net loss of $252.
From 1 July 2005 to 30 June 2006, the difference between $61,713 gross for a geo‑technician and $59,513 gross for light duties is a net loss rounded to $1,180.
For 1 July 2006 to 30 June 2007, the difference between $64,181 gross and $61,893 gross is a net loss rounded to $1,601.
For 1 July 2007 to 30 June 2008 the difference between $66,491 gross to $64,122 gross is a net loss rounded to $1,655.
For 1 July 2008 to 30 June 2009 the difference between $68,485 gross and $66,045 gross is a net loss rounded to $1,708.
For 1 July 2009 to 30 June 2010, the difference between $70,197 gross to $67,696 gross is a net loss rounded to$1,751.
For 1 July 2010 to 30 June 2011 the difference between $72,302 gross and $69,727 gross is a net loss rounded to$1,801.
For 1 July 2011 to 12 May 2012, the difference between $74,330 annualized gross and $71,680 annualized gross, for 45 weeks is a net loss rounded to $1,620.
This calculates to a past economic loss of $11,568.
Additionally Ms Wainwright has a contractual entitlement to receive a bonus in the discretion of the defendant and received a bonus for the year ending 30 June 2003. Some global allowance should also be made for medical health coverage.
Her past economic loss covers a period of eight financial years which encompass both the global financial crisis and mining boom. I do not accept a bonus would have been paid every year however an allowance for the bonus including inflationary increases ought be made. Accordingly, I make a global allowance of $8,310 net for bonuses and medical coverage making Ms Wainwright past economic loss rounded up to $20,000.

Interest on past economic loss

The plaintiff's particulars claim interest on her past economic loss from 24 November 2003.
However, the plaintiff's particulars only claim economic loss from 7 April 2005, particularising receipt of pre‑accident wages until 6 April 2005.
I allow interest on past economic loss from 7 April 2005 at the rate of 3% per annum until 9 June 2012 being 7 years and 9 weeks rounded down to $4,300.

Fox and Wood allowance

The defendant said that no Fox and Wood allowance should be made. I reject that submission, an allowance ought be made and I therefore allow the sum of $32,597.15.

Future economic loss

I am satisfied that the plaintiff is able to perform light duty employment. The plaintiff was born on 22 April 1955 and I accept that she would have worked until the age of 65. The appropriate 6% multiplier is 365.5 for that period.
Ms Wainwright's base net economic loss is approximately $36 per week, making allowing for bonuses and medical coverage, I allow $45 per week net which results in a future economic loss of, rounded up, $16,500 which I reduce by 6% for contingencies rounded up equals $15,550.

Loss on past superannuation

Pursuant to her contract of employment the plaintiff was entitled to superannuation at the rate of 10%.
Liability for workers compensation payments was made on 14 January 2004 and from that date the plaintiff was not paid any superannuation benefits. From that date till her services were terminated she should receive superannuation benefits of 10% of her actual wages.
15 January 2004 to 30 September 2006 10% of $109,262 = $10,926.
Thereafter the past loss of superannuation benefits is calculated as 10% of the difference between her notional gross wage as a geo‑technician and the notional light duties wage as follows:
1 October 2006 – 30 June 2007:         $1,715
1 July 2007 – 30 June 2008:              $2,369
1 July 2008 – 30 June 2009:              $2,440
1 July 2009 – 30 June 2010:              $2,501
1 July 2010 – 30 June 2011:              $2,578
1 July 2011 – 12 May 2012:              $2,295
Total:$24,824 x 10% = $2,482
I allow loss of past superannuation benefits in the sum of $2482 – 15% (Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192) = $2,110.
Interest on past loss of superannuation benefits of $2,110 at the rate of 3% per annum calculated on a daily basis from 15 January 2004 to 9 June 2012, a period of 8 years and 17 weeks, being the sum of $526.
I allow loss of past superannuation together with interest in the sum of $2,110 + $526 = $2,636.

Future loss of superannuation

I allow the plaintiff a sum of 10% of the difference between her notional gross yearly wage for work as a geo technician ($74,330) and her notional gross yearly wage on light duties ($71,680) being a difference of approximately, rounded up for bonuses and medical coverage, $65 gross per week x 10% = $6.50 x 365.5 = $2,376 less 15% (Jongen v CSR Ltd as claimed) = $2,021.
To this a global amount of $300 should be added to make allowance for the proposed compulsory superannuation contributions from employers increasing to 12% by way of progressive increases from 1 July 2013 until 1 July 2019 pursuant to the Superannuation Guarantee (Administration) Bill 2011.
I therefore allow the sum of $2,321.

Special damages

In light of my findings most of the amounts claimed as special damaged are appropriately claimed.
However, the defendant objected to a number of specific items identified as items 3, 4, 5, 19, 24, 28, 30, 34, 40, 44, 46, 57, 62, 63, 65, 66, 68, 140, 142, 149, 151, 152, 160, 172 ‑ 175, in exhibit 13 totalling $439.02.
I am not satisfied the expenditure for these items arises from the accident and do not allow them. I allow the other items. I therefore allow $3,613 for medication, aids, appliances and travelling expenses.
As far as past medical consultations are concerned, the plaintiff has claimed $17,553 which I allow.
The total of allowed special damages is $21,167 rounded up $21,170.

Future medical expenses

The plaintiff's counsel urges me to make a global allowance.
I accept that as a result of Ms Wainwright suffering from DVT which has resulted in an incompetent popliteal vein and an adjustment disorder, with depressed it would be appropriate to make a global allowance for future specialists (haematologist, psychologist, psychiatrist), and GP visits.
I make a global allowance of $3,000 for future medical expense.
As for future medication and travel expense, I make a global allowance of $500.

Past and future gratuitous services

Dr D'Souza's, Dr Harper's and Dr Cheng's evidence causes me to doubt Ms Wainwright assertion that she requires and has received gratuitous services she claims and I am not satisfied that she has made her claim out in this regard.
The amounts I therefore allow the plaintiff are as follows:
1.General damages  $50,000.00
2.Past economic loss  $20,000.00
3.Interest on past economic loss  $4,300.00
4.Fox and Wood allowance  $32,597.00
5.Future economic loss  $15,550.00
6.Loss of past superannuation  $2,636.00
7.Loss of future superannuation  $2,321.00
8.Special damages  $21,170.00
9.Future medical expenses  $3,500.00
Total$152,074.00

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WAINRIGHT -v- BARRICK GOLD OF AUSTRALIA LIMITED [2012] WADC 79 (S)

CORAM: BOWDEN DCJ

HEARD: 5 JULY 2012

DELIVERED : 8 JUNE 2012

SUPPLEMENTARY
DECISION :6 JULY 2012

FILE NO/S: CIV 1291 of 2007

BETWEEN: SHEILA WAINRIGHT
Plaintiff
AND
BARRICK GOLD OF AUSTRALIA LIMITED
Defendant

Catchwords:

Slip rule - Amendment of judgment

Legislation:

Rules of the Supreme Court 1971, O 21 r 10

Result:

Amendments made as agreed
Disputed amendment not made

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos QC
Defendant: Mr M Greenland

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Greenland Legal Pty Ltd

Case(s) referred to in judgment(s):

Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192

BOWDEN DCJ: On 8 June 2012 I delivered judgment in this matter. I have been advised the judgment has not been extracted.
The parties have agreed that pursuant to O 21 r 10 of the Rules of the SupremeCourt 1971 the judgment ought be amended.
It is agreed that the loss on past superannuation be increased from $2,636 (including interest) to $14,245 on the basis that although I referred in [555] to an amount of $10,926 as the loss of past superannuation for the period 15January 2004 to 30September 2006, I omitted to add to the other amounts in [556]. I 'slipped' accordingly, the total referred to in [556] should be $13,408 from which 15% is deducted in accordance with Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192, resulting in an amount of $11,397 (rounded up) to which is added interest of $2,848 making an award of $14,245.
Although the defendant invited me to correct to 30% the Jongen deduction I decline to do so; 15% was the deduction I intended.
It is also agreed that special damages for which I had allowed $21,170 should be increased by $24,538 to reflect additional special damages paid pursuant to the Workers Compensation and Rehabilitation Act 1981. Accordingly, the total I allow for special damages is $45,708.
Further, it is agreed that the amount of $20,000 which I had allowed for past loss of earning should be increased by an amount of $22,918.88 nett to reflect payments made before 6 April 2005 pursuant to the Workers Compensation and Rehabilitation Act 1981. Accordingly I increase the past economic loss to $42,918.88.
I was also invited to amend the judgment in relation to the past loss of earning capacity for the period from 7 April 2005 (the date Ms Wainwright ceased work) through to 5 February 2007 (the date workers' compensation payments ceased). That amount calculates to approximately $70,000.
It was suggested that as I found Ms Wainwright's employment was terminated in September 2006 and their was no plea or finding that she had failed to mitigate her loss by not accepting a job, an allowance ought be made as it was reasonable for her to seek to minimize her loss of employment by accepting workers compensation payments to avoid the consequence of the loss (ts 1344 ‑ 1345). It was suggested a period of approximately five months (ts 1351) ought be allowed as a reasonable period for her to find other employment.
This amendment was opposed by Mr Greenland.
In my opinion this would involve a consideration of new issues not covered in the judgment and therefore outside of the slip rule and I decline to make that amendment.
Accordingly the damages I allow the plaintiff are as follows:
1.General damages:   $50,000.00
2.Past economic loss:   $42,918.88
3.Interest on past economic loss:             $4,300.00
4.Fox v Wood allowance:   $32,597.00
5.Future economic loss:   $15,550.00
6.Loss of past superannuation:              $14,245.00
7.Loss of future superannuation:             $2,321.00
8.Special damages:   $45,708.00
9.Future medical expenses:  $3,509.00
Total$211,148.88