Wylie v The South Metropolitan College of TAFE - [2002] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WYLIE -v- THE SOUTH METROPOLITAN COLLEGE OF TAFE [2002] WADC 17

CORAM: MARTINO DCJ

HEARD: 5-9 & 12-15 NOVEMBER 2001

DELIVERED : 1 FEBRUARY 2002

FILE NO/S: CIV 941 of 1999

BETWEEN: GLORIA JEAN WYLIE
Plaintiff
AND
THE SOUTH METROPOLITAN COLLEGE OF TAFE
Defendant

Catchwords:

Torts - Negligence - Employer and employee - Mental disorder

Legislation:

Occupational Safety and Health Act 1984, s 19

Public Sector Management Act 1994, s 8, s 9

Result:

Plaintiff's claim dismissed - Damages provisionally assessed

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr G R Hancy

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Talbot & Olivier

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

Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Miller v Royal Derwent Hospital Board of Management (1992) A Tort Rep 81‑175
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
State of New South Wales v Seedsman [2000] NSWCA 119
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Morgan v Tame (2000) A Tort Rep 81-567

MARTINO DCJ:

Introduction

In June 1991 the plaintiff commenced employment with the defendant as a library assistant at the defendant's Fremantle campus. She ceased working in around July 1997 and tendered her resignation in May 2000.
The plaintiff claims that in the period between approximately February 1993 and July 1997 she was required to carry out duties for which she did not have adequate education, training or experience and duties which were excessive. She claims that these duties caused her to suffer psychological depression and anxiety disorder ("the first claim").
She also claims that on 20 March 1996, while she was performing her employment duties, she stepped on the plug of a computer cable, slipped and fell, causing her to suffer injuries to her back, left hip, knees and left ankle ("the second claim").
The plaintiff claims also that in 1996 she suffered an exacerbation of her depression and anxiety disorder because the defendant revealed confidential comments that the plaintiff had made about another worker ("the third claim").
By this action the plaintiff claims damages for each of the claims, on the grounds that she has suffered psychological and physical injuries which were caused by breaches of duties owed to her by the defendant.
The defendant admits that the plaintiff fell on 20 March 1996, but denies that the plaintiff has suffered either psychological or physical injuries. It denies that it has breached any duty to the plaintiff and claims that any injuries suffered by her were caused by her pre‑existing personality, her feeling aggrieved and angry at being returned to her original position as a library assistant from acting higher duties, her perception that she was "let down" or not appreciated by her superiors, failing to keep a proper look out at the time of her fall and failing to seek assistance or medical attention in respect of depression and anxiety. The trial of the action concerned both liability and damages.

The nature of the claims

Each of the claims is in negligence, in contract and for breach of statutory duty. In the first and second claims the plaintiff claims that the defendant has breached a duty owed to her under s 19 of the Occupational Safety and Health Act 1984. The third claim includes a claim that the defendant breached a duty owed to her under s 8 and s 9 of the Public Sector Management Act 1994.
The first claim is that between about February 1993 and July 1997, in the course of her employment by the defendant, the plaintiff "was required to carry out duties for which she was unsuitable due to lack of education, training and experience and further, such duties were excessive and as a result" the plaintiff has suffered psychological depression and anxiety disorder (par 7 of the statement of claim).
The second claim is for injuries alleged to have been suffered in a fall, but it is not a conventional claim of an unsafe floor or physical work environment. The claim is that the plaintiff "was required to take a computer cable to the store room and bring a specific computer cable to provide it to the computer technician, and in the process when she was winding it up and in the meantime she was called at the reception desk by another co‑worker to arrange an overhead projector to loan it to a lecturer and as she proceeded to walk to the reception desk she stepped on the plug of the computer cable she was winding up which was lying on the vinyl floor as a result she slipped and fell on the vinyl floor" (par 9). The breaches of duty by the defendant alleged to have caused the injuries suffered in the fall are requiring the plaintiff to carry out more than one task at a time and failing to provide sufficient staffing and co‑workers to the plaintiff in circumstances where the plaintiff had notified the defendant of her inability to cope with higher level duties and excessive duties and was mentally and physically tired (par 15.1.2 and par 15.2.2) and failing to implement and enforce a safety policy to minimise the risk of injury to employees in failing to carry out an adequate assessment to identify the hazard of the plaintiff's duties, failing to implement adequate control measures aimed at the reduction of the risk of injury and failing to reduce the plaintiff's hours of employment and workload to enable her to carry out her duties safely (par 15.3.2).
The third claim arises out of a meeting which is pleaded as having occurred in or about May 1996. In fact the meeting seems to have occurred earlier than that. The plaintiff claims that she "was required to attend a meeting of managers in which she was required to make confidential comments to the defendant regarding a co-worker ... which confidential comments were revealed to the worker ... in breach of the defendant's duty of confidence to the plaintiff" (par 11) and that as a result the plaintiff suffered aggravation of her psychological depression and anxiety disorder.

The plaintiff

The plaintiff was born on 2 September 1945. She commenced employment in 1960 as a shop assistant. She has given birth to three children and has cared for foster children. Her first child was a daughter born on 31 August 1963. The plaintiff gave up that child for adoption.
The plaintiff married Ronald James Wylie on 30 January 1971. There are two children of that marriage, a son born on 21 January 1972 and a daughter born on 8 February 1975.
From 1960 until February 1989 the plaintiff worked in a variety of occupations including sales assistant, factory hand, bakery hand, cleaner and laundry hand. She took breaks from employment from time to time in that period but returned to employment after each break.
In February 1989 the plaintiff was a laundry hand employed by the Hospital Linen and Laundry Service of the Health Department. On 2 February 1989 she twisted her right knee in the course of that employment. She received workers' compensation for that injury. As part of her rehabilitation to the workforce she received secretarial and word processing training.

The plaintiff's employment by the defendant

On 14 June 1991 the plaintiff commenced employment with the defendant as a library assistant level 1 at the library of the defendant's Fremantle campus which campus was in Grosvenor Street, Beaconsfield. That was the lowest ranking position at the library. She was one of three employees at that level. The defendant's senior library employee was Mr Jim Downing, a librarian. Ms Evelyn Leigh, who was also a librarian, was employed as assistant librarian. Mr Malcolm Wells was employed as an audiovisual technician and Ms Anne Holland as a library technician. The plaintiff's duties were shelving books, covering books and helping people at the front desk.
The defendant's main library was the library at its Fremantle campus in Beaconsfield, but it also had libraries at five other campuses.
The first formal assessment by the defendant of the plaintiff's work performance occurred in October 1991. At that time Mr Downing was on leave and Ms Mary Gilbert was acting as librarian at the defendant's Fremantle campus. A staff assessment report prepared in October 1991 (exhibit A) contained the following comments by Ms Gilbert on the plaintiff's performance:
"A highly motivated and willing worker who displays a most conscientious attitude to her work. Although Gloria has had no previous experience in library work, she has proven a valued employee who continually strives to achieve a high degree of competence in all tasks undertaken."
In 1991 the defendant was in the process of transferring its library cataloguing system from a manual card system to a computerised or automated system. The computer software being used was Dynix, a Unix based system. The task was called retrospective cataloguing. Anne Holland was performing that task and was responsible for training others in how to do it. The plaintiff and Ms Holland did not enjoy a good working relationship. Within six days of the plaintiff commencing her employment Ms Holland complained to Mr Downing that the plaintiff's behaviour was causing problems in the working relationships in the library. Mr Downing asked Ms Holland to put her complaints in a memo, which she did. The relationship between the plaintiff and Ms Holland did not improve. Ms Holland's evidence was that when Mr Downing "didn't act on the memo, except giving [the plaintiff] a copy of it, I couldn't work with her at all, so I asked to be taken away as her supervisor" (T534). It was clear from Ms Holland's evidence that she continues to hold a very poor view of the plaintiff and that she blames the plaintiff for making her employment environment very unpleasant.
From 3 December 1991 to 24 December 1991 the plaintiff was on leave for surgery to remove bands that had been inserted in her stomach to assist her to lose weight.
In February 1992 the defendant increased the plaintiff's employment level to that of an acting library technician, level 2. This occurred because Ms Holland was absent on workers' compensation and a rehabilitation program. The plaintiff remained in that acting level until 25 September 1992. She then returned to level 1.
In early 1992 the library at the defendant's Fremantle campus began running as an automated library. As acting library technician the plaintiff's duties were retrospective cataloguing of the defendant's library in South Terrace, Fremantle. The plaintiff's evidence was that the task of retrospective cataloguing involved:
"Taking an item, searching Dynix to see if it could be found. If it could be found, identifying it, bar coding it and reshelving it. If it couldn't be found on Dynix, it had to then be entered on ABN and Dynix, bar coded and returned to the shelves." (T32)
ABN was the Australian Bibliographic Network. The plaintiff's evidence was that if the record for an item could not be found on the Dynix database it was necessary for her to use her computer to log in to that network and to search to see whether the item had an ABN entry. If it did it would be purchased by the library. If it did not it would be necessary to send the item to another TAFE location where Mr Michael Tegowski catalogued it.
Ms Holland's evidence was that she had trained the plaintiff in the task of retrospective cataloguing. The plaintiff did not give evidence that she was trained by Ms Holland, but by other employees of the defendant. In view of the poor relationship between the plaintiff and Ms Holland from very soon after the plaintiff commenced work it is unlikely that Ms Holland would have given the plaintiff any significant training and I find that she did not do so.
That is not to say however that the plaintiff did not receive training in the task of retrospective cataloguing. Her evidence was that she received training from Mr Downing, Ms Leigh and Mr Wells. She worked quite closely with Mr Wells and Ms Leigh spent a lot of time making sure that the plaintiff understood the task. The plaintiff's evidence was that she was more than willing to learn and that she loved what she was doing. The task of retrospective cataloguing was one that required considerable attention to detail, accuracy and concentration. It was obviously very important that the library records were accurate.
A staff assessment report on the plaintiff was prepared in late 1992 (exhibit B). Mr Downing made the following comments on the plaintiff's work performance:
"For much of the reporting period Mrs Wylie was undertaking L2 tasks. These were accurately and competently executed, and indicate Mrs Wylie is capable of higher duties. She also has a much greater understanding of library procedures and practices when compared to others in similar positions."
The plaintiff was also happy with her employment. Her comments in the same form were:
"Much of my success in '92 is a credit to Mr Downing and Mr Wells (perseverance and help) Both men have been great to me and enabled me to achieve a high level than perhaps other people in similar positions."
I find that the training the plaintiff received in the task of retrospective cataloguing was adequate to enable her to carry out the work and that the plaintiff was happy to have spent a good part of 1992 doing the job and working at a higher level than the level 1 at which she had been recruited.
Ms Holland returned to work in late 1992. However she did not remain at the Fremantle library for long. Ms Holland asked to be moved from that library. Her evidence was that she could not work with the plaintiff. She worked in the defendant's Rockingham library for three months and was then seconded to the Education Department for approximately 12 months. The fact that Ms Holland did not return to the Fremantle library meant that the plaintiff continued to have an important role in the automation of the library.
Mr Downing transferred from the library to another position with the defendant in early 1993. His evidence was that there were a number of reasons for his decision to move from the library, but that one of them was that he found the plaintiff's behaviour "pretty undermining".
Mary Gilbert replaced Mr Downing as librarian at the defendant's Fremantle campus in early 1993. Ms Gilbert went on leave in approximately May 1993. Ms Gilbert's evidence was that the reason that she went on leave was the plaintiff's behaviour. She said that the plaintiff caused considerable division in the library workforce. Ms Gilbert originally planned to take three months' leave. While she was on leave her father died. This event added to her depression. Ms Gilbert did not return to the library until March 1995.
On 1 June 1993 the plaintiff's employment level was increased to an acting level 2 position. She remained acting at that level until 29 October 1993.
The plaintiff continued to work on the automation of the defendant's libraries. To complete this work she would work overtime. Her evidence was that she was required to work overtime to complete the task. In part this was because the defendant had a limited number of licences to use Dynix and when the libraries were open the defendant's students and academic staff used the computer terminals that ran Dynix software. Mr Neil McAulay, the defendant's assistant director, College Services, gave evidence that the plaintiff was not forced to do overtime but did so at her request. I accept that the plaintiff was not forced to work overtime. However I also accept that it was reasonably necessary for the plaintiff to work overtime to complete the task of retrospective cataloguing. The defendant would not have continued to pay the plaintiff for working those additional hours if it was not necessary for the plaintiff to do so.
In July 1993 the defendant's assistant librarian Ms Evelyn Leigh retired. As Ms Gilbert was still away on leave this meant that the defendant had no qualified librarian at its Fremantle campus. The most senior employee at that library was Mr Malcolm Wells. Mr Wells was studying part‑time for a library degree at Curtin University. Mr Wells commenced his studies in 1992. He studied part‑time for four years and completed his degree at the end of 1995. In November 1993 Ms Rosemary Seneviratne was appointed acting librarian in charge at the library. Ms Seneviratne is a qualified librarian. She remained in that position until April 1994.
A qualified librarian did not replace Ms Seneviratne. In May 1994 Mr Wells was appointed acting head librarian of the Fremantle campus library.
The plaintiff worked in an acting level 2 position from 7 March 1994 to 15 April 1994 and from 27 April 1994 to 1 July 1994. On 4 July 1994 the plaintiff was appointed to a higher acting level – level 2/4, which is that of acting assistant librarian. She remained at level 2/4 until 29 July 1994. This period coincided approximately with Mr Wells' leave. On 1 August 1994 the plaintiff was appointed acting level 2. She remained at that level until 23 June 1996.
1994 was a busy year for both the plaintiff and Mr Wells. The transfer of a collection of approximately 3,000 items from another institution's horticulture library to the defendant's Murdoch library added to the workload. Mr Wells described the year as follows:
"Right. So by the end of 1994, bearing in mind the duties you told his Honour about the other day, the duties you had been performing, how were you managing your work?---I found that the amount of work was beginning to show because I was studying at university, so I found that I was spending a lot of time either at work or studying at the university. I found in that last year I was having to balance those couple of things and of course with family commitments as well, it was a fairly busy time.
You have mentioned, I think, the other day about the long hours you were working. What about weekends?---It was not uncommon for me to go into the Fremantle TAFE site to do work on the weekends.
When you attended on weekends, what are you able to say, if anything, about Mrs Wylie's attendance?---Mrs Wylie was also - we worked on almost a partnership agreement. Some of the tasks she was able to perform so we would both carry on some of those activities out of hours on a rotational basis, so she was also performing some of those tasks." (T423)
I accept that evidence. Especially after Ms Seneviratne left in April 1994 Mr Wells and the plaintiff had many responsibilities. Those responsibilities would have required a lot of hard work from both of them.
This work, particularly the work on the transfer of the horticulture library to Murdoch, caused the plaintiff to feel tired and she was not sleeping well.
In March 1995 Ms Gilbert returned from leave. The plaintiff's evidence as to her work in the period up to Ms Gilbert's return was that she was doing staff rostering, writing out all the purchase orders, following them through, helping any of the staff who had problems with Dynix, responding to lecturing staff's e‑mails and providing support. She said she was also continuing work on library automation.
From 4 July 1995 to 25 September 1995 the plaintiff was on leave for a hernia operation and recuperation from the operation. On her return she continued working on the automation of the defendant's Rockingham library.
In December 1995 Mr Wells resigned to take up a position as a librarian at a TAFE library in Broome. Mr Wells' evidence was that by the end of 1995 the plaintiff was acting out of character - she was argumentative and made mistakes in her work.
The plaintiff, Mr Wells, Mr McAulay and the college director Mr Tate attended a farewell lunch for Mr Wells at the Esplanade Hotel in Fremantle in late 1995. Mr Tate arrived after the others. The plaintiff did not refer to this lunch in her evidence in chief. In cross‑examination she said that at the lunch, before Mr Tate arrived, she told Mr McAulay about her heavy workload and the need to recruit a trained librarian and that Mr McAulay was keen for the subject to be changed before Mr Tate arrived. In re‑examination the plaintiff added that at this meeting she told Mr McAulay that she wished to return to a level 1. Mr McAulay had no recollection of this conversation. Mr Wells was not asked about the conversation. While I do accept that there was some conversation about the library at the lunch before Mr Tate arrived I do not accept that the conversation was anything more than a conversation in general terms about staffing. I do not accept that the plaintiff said that she wished to transfer to a level 1. The lunch was a work related social event. If a conversation as described by the plaintiff had occurred it would have been remembered by Mr McAulay.

The defendant did not replace Mr Wells. The plaintiff's evidence was that this increased her workload considerably. She took on the administration of the library computer system. The defendant opened a new library at its Peel campus in Mandurah. The plaintiff assisted in that opening. The plaintiff continued to work on the automation of the defendant's Rockingham library and she also did some work on a small library at Fleet Street, Fremantle. I accept that the departure of Mr Wells and the absence of a replacement increased the plaintiff's workload.
The plaintiff's evidence was that she had difficulties coping with that extra workload and that she informed Mr McAulay, Ms Gilbert and Mr Tate. She said that she told Mr Tate that she wished to revert to a level 1. Neither Mr McAulay nor Mr Tate recalled any such conversation. Ms Gilbert said that on one occasion the plaintiff told her that she was tired and that Ms Gilbert told the plaintiff not to work such long hours. Ms Gilbert's evidence was that the plaintiff did not say that she wished to revert to level 1, but that she wished to work at a higher level.
The plaintiff also gave evidence that she told her general practitioner Dr Lachlan Henderson about the problems with her inability to cope with her work. However Dr Henderson's records and evidence were that the first complaint that the plaintiff made to him about her work occurred after the fall at work in March 1996 and that the complaint was a "lack of acknowledgment from the work as far as her injuries were concerned and hence creating a stressful situation for her" (T325).
While I accept that the plaintiff was working hard and that she did make some comments about how hard she was working I do not accept her evidence about the nature of her complaints to her superiors. The defendant had a staff assessment system that allowed its employees to comment on their work. In none of the forms that are in evidence did the plaintiff make any such complaint (exhibits A, B and N). In exhibit B the plaintiff has written in positive terms about her opportunities to work at a high level. The plaintiff accepted that she did not make any complaints in those documents. She said that she regarded the staff assessment forms as worthless. If the plaintiff had complained to her superiors in the manner that she has alleged there would have been at least some action or record of it. I also find the presence of positive comments by her in‑staff assessment forms, but no negative comments, as inconsistent with her evidence about the nature of her complaints.
On 20 March 1996 the plaintiff was assisting a computer technician. The technician asked her to swap the cable she was holding for another type of cable. The plaintiff began doing that. As she was doing so someone to whom she had promised an overhead projector waved to her. The plaintiff went to speak to that person and as she did she stood on the base of the cable, slipped and fell. The cable end on which the plaintiff stepped was the cable that she was going to replace. It was about 12 metres long. The plaintiff was wrapping it around her arm. The fall was not witnessed but other employees of the defendant such as Mr Robert Zygaldo saw the plaintiff immediately after the fall. I accept that the plaintiff did fall as a result of stepping on the plug of the cable she was winding up. After the fall the plaintiff was away from work until the following month. She suffered pain in her spine, left hip, left knee and left ankle. When she returned to work her mobility was not very good:
"I went back to work on crutches, I limped. I guess I just tried really hard to make things work." (T71)
In 1996 the plaintiff was working on the automation of the Rockingham library. The library was both a TAFE library and a public library. Employees of the defendant and of the City of Rockingham worked at the library. The plaintiff felt that Ms Natalie McDonald, an employee of the City of Rockingham, was not helpful to TAFE students. During 1996 the plaintiff attended a meeting to discuss the Rockingham library. The meeting was attended by employees of the City of Rockingham, including the local authority's librarian Mr Bill Mead, and by employees of the defendant, including Mr McAulay and Ms Gilbert. Ms McDonald did not attend the meeting. At the meeting the plaintiff suggested that the defendant set up a rolling roster to shift people from one campus to another. The plaintiff suggested that the first person to be moved could be Ms McDonald, and thereby some of the tension that the plaintiff perceived at the library could be removed.
Either at the meeting or shortly afterwards Mr McAulay told the plaintiff that she should not have made adverse comments about Ms McDonald at such a meeting when Ms McDonald was not present and did not have an opportunity to reply to the allegations. He asked the plaintiff to apologise to Ms McDonald. After some hesitation the plaintiff provided a written apology dated 3 May 1996, which she gave to Mr McAulay, who gave it to Ms McDonald. A copy of the apology is exhibit H.
The plaintiff said that Mr McAulay told her that the apology was to be kept confidential, but that it was not and that people knew that she had provided the apology. The plaintiff's evidence was that the fact that it was not kept confidential, "along with being very tired and a lot of pain I just started to not cope with things" (T80). Mr McAulay could not remember saying to the plaintiff that the apology would be kept confidential, but he agreed he may have. When he gave the apology to Ms McDonald he did not tell her to keep it confidential. However Ms McDonald told only her supervisor and one other colleague in whom she confided.
In April 1996 the defendant received a report on the restructure of staffing at its libraries. The proposed restructure called for the plaintiff to be returned to level 1.
In June 1996 Mr Tate and Mr McAulay presented to the plaintiff a certificate dated 7 June 1996 signed by Mr Tate acknowledging the plaintiff's contribution to the implementation of the Dynix system at the Rockingham and Fremantle campuses.
Ms Gilbert resigned in June 1996. She was not immediately replaced. This meant that the defendant did not have a qualified librarian at its Fremantle campus. The plaintiff was promoted to an acting level 4 position on 24 June 1996. A level 4 position in a library is a qualified librarian's position. The plaintiff remained at that level until 25 February 1997. As acting librarian without a qualified librarian working in the library the plaintiff had to perform the functions of a librarian. Mr McAulay's evidence was that in that period he was more involved in the running of the library. I do not accept that Mr McAulay carried out any significant library functions. His evidence as to what he did was not specific. He had no experience or training in the running of a library and he had all the duties and responsibilities of his own position to perform. The plaintiff on the other hand had experience in working in the library, was acting at a librarian's level and was physically present in the library.
In September or October 1996 the defendant appointed Ms Maureen Allman to manage all of its libraries including the Fremantle library. Ms Allman is a qualified librarian. The defendant appointed her at level 6, so she was the plaintiff's superior. For the remainder of 1996 the plaintiff assisted Ms Allman to settle in and explained the operation of the library to her. The plaintiff's evidence was that on the day that Ms Allman commenced work the plaintiff said to Ms Allman "I'm tired, I'm battle weary and I don't want to do this job. I love the students, I love my work but I want to go back to level 1" (T58). Ms Allman denied that the plaintiff said that to her. She recalled that the plaintiff was very welcoming when she arrived. I accept the evidence of Ms Allman. It would have been an unusual statement by the person who was to introduce Ms Allman to her new place of employment on the day that she arrived. I find the plaintiff's evidence on this issue implausible and I do not accept it.
On 25 February 1997 the plaintiff sent an e‑mail to Mr John Wood, the defendant's human resources manager, requesting a transfer from the library to a level 1 position elsewhere. The plaintiff's evidence was that at that time she could not cope with her work at all.
On 28 February 1997 Ms Allman sent two e‑mails (exhibits AO1 and AO2). These show that on 26 February 1997 the plaintiff took one month's long service leave and that she would be returning to a level 1 position on her return.
The plaintiff took more than one month's leave. She did not return to work until June 1997. She returned to level 1. She ceased working in August 1997. She has not worked for the defendant since then. She was in receipt of weekly payments of workers' compensation until 14 March 2001 when the prescribed amount under the Workers' Compensation and Rehabilitation Act 1981 was reached.

The plaintiff's psychiatric condition prior to the events complained of

From time to time prior to the events of which the plaintiff complains in this action the plaintiff told her medical practitioners that she was distressed. This appears from the medical notes made by the plaintiff's various medical practitioners since 1984. Some of those entries appear to be related to the plaintiff's weight. For example the entry on 8 November 1984 is:
"Tony van Merwyck. Would operate once patients emotional problems OK."
Mr Van Merwyk is a medical practitioner who specialised in the field of obesity surgery who has treated the plaintiff.
Other entries relate to the plaintiff's family. For example an entry for 28 September 1989 refers to the plaintiff having many worries and problems relating to her daughter and her adopted daughter.
In some of those entries there are references to sleeplessness and tearfulness and in some the doctors have written that the plaintiff was depressed. There are references to the prescription of Prothiaden. Dr Peter Burvill, the plaintiff's current psychiatrist, said that the prescription of Prothiaden in the amounts referred to in those notes is for the treatment of depression.
The plaintiff denied that she suffered from depression before the matters complained of in this action. She said that she had problems with her weight and with giving blood before surgery and she found the nurses' difficulty in finding a vein to give blood upsetting. The plaintiff's evidence was that her first daughter, who she had given up for adoption, contacted her when she was an adult and that the plaintiff participated in a study at the University of Western Australia on the effects of adoption.
She said she had concerns about her second daughter when her daughter was a teenager and she discussed those problems with her general practitioner. The plaintiff also said that she did not take the Prothiaden that was prescribed. The medical notes confirm that the plaintiff did not always take the medication.
I conclude that the plaintiff did have concerns before she commenced her employment with the defendant and that she discussed her concerns with her general medical practitioners. I accept that at times those practitioners diagnosed the plaintiff was suffering from depression. I am not able to say whether those diagnoses were correct. However even if the plaintiff was suffering depression at that time it must have been mild. I reach that conclusion from the fact that there is no evidence that depression at any time disabled the plaintiff prior to her employment with the defendant.

Medical treatment of the plaintiff

Dr Henderson of the Garden City Medical Centre has been the plaintiff's general medical practitioner since June 1995. The plaintiff had seen other medical practitioners in the practice before then. On 5 September 1995 Dr Henderson saw the plaintiff. His note is that they discussed that she had lost 21 kilograms of weight and that there had been complications in her abdominal hernia repair. There is also a note that they discussed anxiety and he prescribed some tablets for anxiety. He had no note or recollection as to what the plaintiff attributed her anxiety. As the plaintiff was on leave from 4 July 1995 to 25 September 1995 I conclude that the anxiety was not related to her work. Dr Henderson next saw the plaintiff on 26 July 1996, after her fall on 20 March 1996.
On the day of her fall the plaintiff went to the emergency department of St John of God Hospital, Murdoch. A medical practitioner at that department referred the plaintiff to Mr Gerard Hardisty, an orthopaedic surgeon who specialises in lower limb arthritis, sports medicine, paediatric orthopaedics, foot and ankle surgery. Mr Hardisty saw the plaintiff on the same day and saw that the plaintiff had multiple bruises. The plaintiff went home that day but returned four days later and told Mr Hardisty that she was unable to cope. Mr Hardisty admitted the plaintiff to hospital for two nights. The plaintiff had a sore low back, left hip and bruises over both her knees. In a report to Dr Henderson dated 15 May 1996 Mr Hardisty expressed the opinion that the plaintiff had sustained largely soft tissue injuries in the fall with a tear of the left calf muscle. In his report to Dr Henderson dated 26 July 1996 Mr Hardisty recorded that the plaintiff had noticed pain around her left ankle and knee. A bone scan had shown a ligament tear of the left ankle. The plaintiff also had inflammation of a tendon in the left ankle and early degenerative changes in both knees.
Mr Hardisty has seen the plaintiff from time to time since then. In his report dated 21 October 1998 he reported the plaintiff's complaints of pain in her left hip, knees and left ankle. He expressed the opinion that the prognosis for the plaintiff was protracted pain in her left hip, both her knees and her left ankle. He expected her hip and ankle pain to settle in the long term, but that she would have persistent problems that would eventually lead to arthritis of both knees. In his opinion the plaintiff was not fit for her normal duties in a library, but would be fit for alternative duties which do not involve a full day's work and are largely sedentary. Mr Hardisty saw the plaintiff in April 2001. Her condition was similar to that described by Mr Hardisty in his report dated 21 October 1998, except that her ankle pain was more on the outside than the inside. Mr Hardisty has found it difficult to make a diagnosis of the cause of the plaintiff's problems and so finds it difficult to make a prognosis. Mr Hardisty's opinion is that the plaintiff is overweight and if she lost weight it is likely that there would be some improvement in her symptoms.
On 18 September 1996 the plaintiff saw Dr Henderson. She appears to have told Dr Henderson that she was distressed about her workers' compensation claim. Dr Henderson made a note:
"Workers' compensation progress. Tearful, angry regarding workers' compensation. Needs time out." (T324)
Dr Henderson's evidence was:
"From that time, from the injury onwards, the [plaintiff] reported to me a lack of acknowledgement from the work as far as her injuries were concerned and hence creating a stressful situation for her." (T325)
It is Dr Henderson's opinion that the plaintiff’s function has deteriorated since the fall of March 1996. He regards the fall as the major incident that has occurred during his involvement with the plaintiff.
Dr Henderson referred the plaintiff to Dr Donna Fruin, clinical psychologist. Dr Fruin first saw the plaintiff on 15 September 1997. She has continued to see the plaintiff. Dr Fruin has provided counselling and stress and pain management strategies to the plaintiff.
By September 1998 the plaintiff had consulted the firm of Ilbery Barblet, barristers and solicitors, about matters concerning her employment by the defendant. Ilbery Barblet requested a psychiatric assessment from Dr Peter Burvill. Dr Burvill saw the plaintiff on 16 and 30 September 1998 and after those interviews provided a report to Ilbery Barblet which is dated (apparently incorrectly) 26 September 1998. When he first saw the plaintiff Dr Burvill found great difficulty obtaining a coherent history from her. It was only after Ilbery Barblet provided him with a proof of evidence that he was able to do so. His evidence was that it was only after reading that proof of evidence that he was able to "pin down something because she was all over the place" (T407).
The history provided to Dr Burvill was different to that provided to Dr Henderson. Dr Burvill described it as follows in the first paragraph of his report dated 26 September 1998:
"Mrs Wylie gave me a detailed history of two sets of difficulties related to her workplace, one related to an accident and resulting physical disabilities and the second relating to increasing depression relating to incidents in the workplace. Although both these incidents appeared to have developed at approximately the same time in 1996, they appeared to be relatively unconnected. Almost all her emphasis in the history given to me related to psychiatric problems connected with the workplace, and not problems as a result of the accident."
In that report Dr Burvill described the workplace problems as being that the plaintiff was working extremely hard without adequate support after "acting librarian Malcolm" left and that the major problem began with what the plaintiff described as a major breach of confidentiality concerning what the plaintiff had said about the worker Natalie at a management meeting in 1996. The plaintiff did not provide to Dr Burvill any history of depression prior to 1996.
Dr Burvill diagnosed the plaintiff as suffering a fairly severe major depressive disorder with associated marked anxiety symptoms. In his opinion, from the history available to him, the plaintiff's psychiatric state was related to problems in the workplace. At the date of the report (late September 1998) Dr Burvill considered the plaintiff unfit for work.
Dr Burvill's most recent report on the plaintiff is dated 18 May 2001. Dr Burvill wrote the report after he saw the plaintiff on 27 March 2001. He previously saw the plaintiff on 9 September 1999. On 27 March 2001 the plaintiff was with her husband and Dr Burvill found the plaintiff's husband very helpful in supplementing the history given to him by the plaintiff. Dr Burvill could not detect any improvement in the plaintiff's emotional state. He diagnosed a severe major depressive disorder, generalised anxiety disorder and marked agoraphobia. In that report Dr Burvill expressed the opinion that by reason of her severe psychiatric state the plaintiff was not capable of performing any work and that she will never be able to perform any work.

The assessment of the plaintiff by psychiatrists arranged by the defendant

The defendant's solicitors have arranged for two psychiatrists to review the plaintiff. Dr Lawrence Terace reviewed the plaintiff on 27 January 1999 and wrote a report on the same day. He expressed "the developing opinion that [the plaintiff] is significantly personality disordered, even if it is difficult to draw this conclusion with any certainty from one interview alone". Notwithstanding that his diagnosis was developing and was difficult to draw with any certainty from one interview Dr Terace was confident enough to express the opinion that "any personality impairment shown must have been pre‑existing prior to the date of the accident". Later in his report Dr Terace wrote that "while a single interview does not permit thorough personality assessment, I was at least able to gain an impression throughout this interview". He wrote that his "impression was that she had a significant pre‑existing personality impairment, despite any evidence that her personality was relatively stable previously, that is compensated prior to the date of accident". I did not find Dr Terace's oral evidence of assistance in understanding these discrepancies.

Dr Peter D McCarthy saw the plaintiff on two occasions in June 2001 and wrote a report dated 17 September 2001. Dr McCarthy found it difficult to take a history from the plaintiff. The plaintiff's husband volunteered to provide some of the history. Dr McCarthy formed the opinion that the plaintiff was suffering from a depressive disorder, was not fit for work and had a poor prognosis. In his evidence he said that there were prospects that the plaintiff would improve and become fit for work if she could become motivated to do so. He did not find the plaintiff's condition as being a major depressive disorder when he saw her but he agreed it may have been a major disorder previously. In his report dated 17 September 2001 Dr McCarthy wrote that he did not believe that her psychiatric condition was primarily due to workplace events, "however the experience at work may have had some role as a stressor". In Dr McCarthy's opinion the plaintiff's psychiatric condition was "predominantly due to non‑work factors, particularly her personality".

Conclusions as to psychiatric evidence

Each of the psychiatrists had difficulty in taking a history from the plaintiff. While I accept that the plaintiff may have been vulnerable to developing a psychiatric disorder I do not accept Dr Terace's evidence that the plaintiff must have had a pre‑existing personality disorder. I do not accept that there is any adequate evidence to support that conclusion and the firmness of the view is inconsistent with the description in the same report that the conclusion was an "impression".
I accept the evidence of Dr Burvill and Dr McCarthy that the plaintiff suffers from depression and is unfit for work. Each of them are of the opinion that the plaintiff's work was a factor in the development of the symptoms, but their opinions as to the extent of that contribution differ. In his report dated 25 October 1999 Dr Burvill expressed the opinion that the defendant's "requirement for her to perform excess duties during the 1996 period, and the failure to respond to her complain[t]s, materially contributed to Mrs Wylie's current psychiatric condition. In reading my previous reports, I note that I have not highlighted the question of the excessive amount of work that she was required to do".
Dr Burvill gave evidence on this issue in the following terms:
"In particular you were asked about the employer's requirements for her to perform excess duties during the 96 period and the failure to respond to her complaints. You concluded that that materially contributed to her current psychiatric condition?‑‑‑Yes. I got a history there that she was under a lot of pressure with increasing work over that year, compounded by the fact that there were staff problems.
How is it that someone who is required to work long hours, 10 or 11 hours a day, 5 days a week and on weekends and sometimes going back at night‑time, even after you have finished work, going back to the workplace to see whether some task had been done and withdrawing from the home life, social and domestic activities at home, spending more and more time at work and less and less time at home - how is it that someone can end up with a psychiatric condition given that situation?‑‑‑The situation you are talking about there - she is a fairly conscientious person, giving her major priority to work, probably pushing herself very hard at that time. I don't think this just occurred just in that year. The history I have got was that she had been under some stress in that workplace, building up over some time before that time but it became particularly acute during that time, plus the fact that also during that time she had fallen on something and injured herself and was off for 2 months. Her physical condition was another aggravant at that time. There was a whole lot of things happening with her life which were sort of mounting. I think one has (T387) their breaking point." (T388)
While I do accept Dr Burvill's evidence that the plaintiff's employment by the defendant was a contributing factor in her development of depression I do not accept his evidence that it was caused by excessive duties or the defendant's failure to respond to her complaints. There are two reasons for that conclusion. The first is that, for reasons I have already expressed in this judgment, I do not accept the plaintiff's evidence of her complaints. The second is that the history obtained by Dr Burvill is not the history given contemporaneously to Dr Henderson.
I have quoted earlier Dr Henderson's evidence that from the time of her fall (the second claim) the plaintiff reported to him a lack of acknowledgment from her work concerning her injuries which created a stressful situation for her. In his evidence in chief Dr Henderson was asked by counsel for the plaintiff for his opinion as to the cause of her psychiatric illness:
"So far as the psychiatric or psychological consequences - significant depression with generalised anxiety and agoraphobia - were you able to get any history as to causation in relation to that?---It appears that there has been a stepwise deterioration in function since the March 1996 incident. If you look at the fact that this was a previously functioning housewife and mother and employed member of the workforce who now is sitting at home most of the time, then that is the major incident that has occurred in the time during my involvement." (T327)
I conclude from my findings as to what occurred in the course of the plaintiff's employment and from Dr Henderson's evidence that excessive hours or duties did not cause the plaintiff to become ill. The plaintiff developed her psychiatric illness following her fall in March 1996. It may have been caused by the pain and loss of mobility following the fall and it may have been caused or contributed to by her perception of a lack of acknowledgment of the injuries suffered in the fall. It was not caused by excessive hours or duties.
Dr Burvill's evidence about the significance of the events that constitute the third claim was:
"That was very central. She had been slowly starting to get depressed before all that occurred, but that really aggravated things quite remarkably, a whole series of things about the confidentiality issue and there were two phases with that." (T393)
In his report dated 17 September 2001 Dr McCarthy expressed the following opinion:
"The claimed third injury, the breach of confidence, in my opinion is a non‑issue. From a psychiatric perspective the real issue is that in the competition for authority and power between her and Natalie, Mrs Wylie did not win and this may have contributed to a reduction in her status and influence in the work place."
I prefer the evidence of Dr Burvill to that of Dr McCarthy on this issue. I do not accept that there was a competition for authority and power between the plaintiff and Ms McDonald.
I conclude therefore that following the plaintiff's fall in March 1996 she developed psychiatric illness. Her illness was aggravated by the consequences of Ms McDonald becoming aware of the plaintiff's comments about her at the meeting to discuss the Rockingham library.

Libraries and library staff

The plaintiff called expert evidence as to libraries and the training of library staff. Dr Margaret Joyce Exon is head of information studies at Curtin University. She has practical experience of working as a librarian. She developed the first syllabus for the training of library technicians and has experience in teaching librarianship for over 20 years. Ms Bobbie Bruce qualified as a librarian in 1982 and has many years practical experience working as a librarian.
The positions of librarian, library technician and library assistant are used throughout libraries in Australia. The professional body for library staff is the Australian Library and Information Association ("ALIA"). ALIA sets and maintains professional standards for the profession. The standards set by ALIA are generally recognised by members of the library profession and by the employers of librarians. For many years librarians were trained through courses run by the State libraries. In the 1960s universities and institutes of technology introduced undergraduate degree courses in librarianship. Since the mid‑1960s ALIA has required that a person either holds a degree in librarian studies or a degree in another field and completed post‑graduate studies in librarianship before it will recognise a person as a librarian, unless that person had already been recognised as a librarian by ALIA after having completed a State library course. A librarian's training qualifies the librarian to manage a library. In the 1970s ALIA introduced the position of library technician. A library technician is at a lower professional level than a librarian. ALIA regards library technicians as para‑professionals, responsible for providing technical assistance to a librarian. ALIA requires a person to have completed a diploma course in library studies to qualify for recognition as a library technician. ALIA regards library assistants as unqualified clerical assistants.
One of the responsibilities of a librarian is cataloguing. Cataloguing is extremely demanding work. It requires concentration and attention to detail. In Dr Exon's opinion it is not work a library assistant can perform - she believes it is a task for librarians. A library technician supervised by a librarian can perform some of the tasks of cataloguing.
As the plaintiff was an unqualified library assistant Dr Exon did not regard her as qualified to perform the tasks of a library technician or the tasks of acting as a librarian which she performed while employed by the defendant.

The duty of care owed by the defendant to the plaintiff

As the plaintiff's employer the defendant owed to her a duty to take reasonable care to avoid unnecessary risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. An employer will be liable in damages to an employee who suffers psychiatric injury as a result of the failure of the employer to take reasonable care to avoid unnecessary risk of injury: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291; State of New South Wales v Seedsman [2000] NSWCA 119. In Crombie v Uniting Church in Australia Property Trust (WA) (supra) at 302 Malcolm CJ quoted from the judgment of Zeeman J in Miller v Royal Derwent Hospital Board of Management (1992) A Tort Rep 81‑175 at 61,497‑61,498 where his Honour said that to determine whether or not there was breach of a duty of care to a nurse in a mental hospital who had suffered psychiatric illness the following questions must be answered:
"1.Whether a reasonable person in the defendants' position would have foreseen that a failure on his part to take certain steps (which steps in themselves must be defined) involved a risk of injury to the plaintiff, being injury of the nature of mental illness or other form of psychological injury of more than a transient form and in the nature of an illness.
2.If yes, what would a reasonable person have done by way of response to that risk having regard to the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendants may have had."
Similarly in State of New South Wales v Seedsman (supra) at par 2 the Court of Appeal quoted with approval the issues posed by the trial Judge:
"Would a reasonable employer have foreseen the possibility that police officers attached to unit whose sole function was to investigate crimes of physical violence against children, especially where those police were young females, relatively new to police work, certainly not trained as detectives, and without any awareness of principles of stress management, would be likely to be subjected to prolonged stress and, as a consequence of such stress, to suffer psychiatric disorders?"
The risk of something occurring can be foreseeable if it is not far fetched of fanciful. "Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable." - Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 per Mason J.

Conclusion as to liability for the first claim

The plaintiff claims that she suffered psychiatric illness as a result of the defendant requiring her to carry out duties for which she was unsuitable due to lack of education, training and experience and duties which were excessive. For reasons I have expressed I do not accept Dr Burvill's opinion that the plaintiff's psychiatric illness was caused by her working excessive hours or by excessive duties. If the illness were so caused it would be necessary for the plaintiff to establish that it was foreseeable that she would suffer psychiatric illness as a consequence of working long hours in areas where she was not qualified. I accept that the plaintiff was working long hours and that many of the task performed by her were tasks for which she had no formal training. I accept that it was foreseeable that the plaintiff could become tired from that work and her work performance could suffer, however I do not accept that it was foreseeable that as a result of that work the plaintiff would suffer a psychiatric illness.
In my view there has been no breach of contract or of the Occupational Safety and Health Act 1985 by the defendant because there has been no failure to take reasonable care for the plaintiff's safety. Further the plaintiff's illness was not caused by excessive hours of work or duties.
I conclude that the plaintiff has not made out her case in relation to the first claim.

Conclusion as to liability for the second claim

The plaintiff's fall in March 1996 occurred when she stepped on the plug of a computer cable she was winding up as she was went to speak to another of the defendant's employees about the loan of an overhead projector. For reasons I have expressed I accept that it was foreseeable that the plaintiff could become tired from the work she was performing and that her work performance could suffer. I do not accept however that the injury was caused by such tiredness or that it was foreseeable that as a result of that work that the plaintiff would suffer a physical injury of the kind that she did. Nor do I accept that the plaintiff had notified the defendant of her inability to cope. I conclude that the injury was the result of an accident which occurred because the plaintiff failed to pay attention to the plug of the cable she was winding up as she walked to speak to the other employee. The plaintiff's second claim in negligence, breach of contract and breach of statutory duty fails.

Conclusion as to liability for the third claim

The third claim is that at the meeting held in 1996 to discuss the Rockingham library the plaintiff was required to make confidential comments to the defendant regarding a co‑worker which confidential comments were revealed to the worker in breach of the defendant's duty of confidence to the plaintiff and that as a result the plaintiff suffered aggravation of her psychological depression and anxiety disorder. The plaintiff's evidence was that at the meeting she suggested that the defendant set up a rolling roster to shift people from one campus to another. The plaintiff suggested that the first person to be moved could be Ms McDonald which could take away some of the tension and allow things to proceed more smoothly.
I do not accept that what was said by the plaintiff was confidential or that the defendant had any duty to keep confidential what the plaintiff said at the meeting. In any event there is no evidence that Mrs McDonald became aware of what the plaintiff said at the meeting through any of the defendant's employees. Employees of the City of Rockingham attended the meeting. Ms McDonald was aware of what the plaintiff said at the meeting before she received the apology. She was not asked who told her.
Although Mr McAulay's requirement that the plaintiff provide an apology to Ms McDonald was not pleaded in par 11 of the statement of claim as giving rise to a cause of action in the third claim it was pleaded as a particular of negligence in par 15.3.3.1.
Mr McAulay required the plaintiff to provide an apology to Ms McDonald because he felt that the plaintiff should not have made adverse comments about Ms McDonald when Ms McDonald was not there. I can see no breach of duty to the plaintiff in Mr McAulay's requirement nor in the fact that Mr McAulay did not ask Ms McDonald to keep confidential the apology.
I conclude in respect of the meeting and the apology that there has been no failure to exercise reasonable care for the plaintiff's safety and no failure to treat the fairly as required by the Public Sector Management Act 1994.
Nor I do not accept that it was foreseeable that the plaintiff would suffer any illness or injury as a result of these events. While it was foreseeable that the plaintiff might suffer some distress or embarrassment I can see no basis on which to conclude that it was foreseeable that the events would suffer any illness or injury or aggravate an existing illness or injury. The plaintiff has not made out her claim in respect of the third claim.

Provisional assessment of damages

In case I am wrong in my conclusions as to liability I will assess the damages I would have awarded if the plaintiff had been successful in the action. The plaintiff is considerably disabled as a result of her psychiatric illness. She is depressed, anxious, agoraphobic and has a very poor tolerance to stress. As a consequence of her illness she has little motivation or energy and spends most of her time at her home. She does very little of the housework and has no recreational activities. She has no capacity to earn income and is likely to remain so incapacitated. The plaintiff has very limited capacity to undertake the domestic tasks she requires and relies on assistance from her husband and her children. The physical injuries suffered by the plaintiff in her fall have resulted in significant pain in her back, left hip, left knee and her left ankle. She is unable to walk long distances and her ability to climb and descend stairs is reduced. I assess the plaintiff's general damages at $75,000.
The plaintiff has not worked since 23 July 1997. I accept that she has been incapacitated since that date as a result of her psychiatric and physical injuries. The plaintiff was paid weekly payments of workers' compensation from 24 July 1997 to 14 March 2001 when the prescribed amount under the Workers' Compensation and Rehabilitation Act 1981 was reached. The plaintiff's solicitors have filed a schedule of past economic loss which contains agreed rates of pay. I assess the plaintiff's past economic loss as follows:
24 July 1997 to 30 June 1998                 $ 21,422
1 July 1998 to 30 June 1999                   $ 23,482
1 July 1999 to 30 June 2000                   $ 23,942
1 July 2000 to 30 June 2001                   $ 25,281
1 July 2001 to date of judgment             $ 15,048
Total  $109,175
The plaintiff's schedule of past economic loss, which was provided after the trial, makes no claim for interest. If I were entering judgment in the plaintiff's favour I would first clarify whether this was an oversight or whether interest was not claimed because of the workers' compensation received. In addition the plaintiff is entitled to the income tax paid on the weekly payments of compensation received by her. The total amount of income tax paid was $30,252.
The plaintiff received superannuation payments from the defendant until 17 May 2000. The loss of the benefit of past superannuation payments is as follows:
18 May 2000 to 30 June 2000                $   254
1 July 2000 to 30 June 2001                   $2,529
1 July 2001 to date of judgment             $1,511
Sub‑total  $4,294
Less 30% for fees and taxes                   $3,005

I accept that the plaintiff has no retained earning capacity and is permanently incapacitated from working. If the plaintiff were still working for the defendant her net weekly rate of remuneration would be $493. She is aged 56 and there are nine years until she turns 65. The multiplier for nine years is 365.5. I calculate the plaintiff's future loss of earning capacity as follows:
$493 x 365.5 $180,191
Less 6% for contingencies $169,380
If the plaintiff were still working for the defendant her gross weekly rate of remuneration would be $621 and her weekly superannuation benefits would be $49. I calculate the value of the plaintiff’' future loss of superannuation benefits as follows:
$49 x 365.5  $17,909
Less 6% for contingencies                $16,834
Less 30% for fees and taxes             $11,784
The defendant paid statutory allowances under the Workers' Compensation and Rehabilitation Act 1981 totalling $21,237. This total is agreed as special damages. The plaintiff also claims $1,000 for travelling expenses for treatment. I consider this to be a reasonable claim and I would allow it. I therefore calculate special damages at $22,237.
I calculate future treatment expenses as follows:
General practitioner once a month at $34       $ 7.85 a week
Medical specialist once a quarter at $85         $ 6.54 a week
Medication  $42.37 a week
Total  $56.76
The plaintiff claims these expenses for nine years which I consider reasonable: $56.76 x 365.5 = $20,745. In addition I would allow $1,000 for travel expenses, giving a total of $21,745 for future treatment.
The plaintiff also claims the value of gratuitous services required by her. The hourly rate of $15 is agreed. The plaintiff claims 11 hours a week from 1 September 1997 for the rest of her life expectancy, a total claim for past and future loss of $148,941. I would not allow 11 hours a week as being reasonably required by the plaintiff. Some of the items for which assistance is provided by members of her family relate to her husband as well as to herself. In addition while Dr Burvill regards getting the plaintiff to return to a normal domestic life would be a major task he does not regard it as an impossible task. I would allow five hours a week for gratuitous services for a further nine years. My calculations are as follows:
1 September 1997 to date of judgment  230 weeks
230 x 5 x $15  $17,250
Interest at 3%  $ 2,287
5 x $15  $      75
$75 x 365.5  $27,412
Total past and future gratuitous services and interest     $46,949
If the plaintiff had been successful I would have assessed damages as follows:
General damages  $ 75,000
Past loss of earning capacity  $109,175
Income tax paid on workers' compensation              $ 30,252
Future loss of earning capacity  $169,380
Past superannuation  $    3,005
Future superannuation  $ 11,784
Special damages  $ 22,237
Future treatment costs  $ 21,745
Gratuitous services  $ 46,949
Total  $489,527