Yu-Mei Chu v State Rail Authority of New South Wales

[2007] NSWDC 41

CITATION:	Yu-Mei Chu v State Rail Authority of New South Wales [2007] NSWDC 41
HEARING DATE(S):	20/03/07 - 21/03/07
JUDGMENT DATE:	4 April 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	There will be a verdict for the plaintiff in the sum of $239 405.00
CATCHWORDS:	Negligence - Civil Liability Act 2002 - Causation - Domestic assistance
LEGISLATION CITED:	The Civil Liability Act 2002
PARTIES:	Yu-Mei Chu (also known as Sherry Chu) (Plaintiff) Rail Corporation New South Wales T/as Railcorp (formerly State Rail Authority of New South Wales) (Defendant)
FILE NUMBER(S):	5753/05
COUNSEL:	A Lidden SC (Plaintiff) K Andrews (Defendant)
SOLICITORS:	Accentro Legal (Plaintiff) Gillis Delaney Lawyers (Defendant)

JUDGMENT

The issues

1 The plaintiff claims compensation from the defendant because she says that the defendant broke a duty of care to her by allowing parts of the steps leading to a platform at its station to be dangerously slippery when they were wet. The defendant says that the plaintiff failed to take proper care for her own safety. The plaintiff claims damages, but the defendant disputes the type of damages to which the plaintiff is entitled, if I find that the defendant is liable to her.

The plaintiff's evidence of the accident

2 The plaintiff says that about 1 am on 29 December 2002 she caught a train from the city. She was travelling home to Roselands after she had been to a party. There was no direct train to Wiley Park, (the station closest to her home) so she had to change at Sydenham. Her train arrived on platform 2. The train to Wiley Park left from platform 6. Therefore, she climbed up the stairs to a walkway, crossed on a walkway, and descended the steps to platform 6. The train had just arrived as she was coming down the stairs. That night it had been raining. There is evidence from the bureau of meteorology of significant, but not heavy, rain. The plaintiff noted that there was water on the walkway and on the stairs. She did not see any signs warning pedestrians to take care on the stairs or to "watch the steps". When she was about 8 steps from the bottom, her left foot slipped from under her. She says that she immediately felt pain in her left ankle and her back. She landed facing upwards. She could not stand up, because she could not put weight on her left ankle. She lay on the stairs for some time. A person assisted her and carried her to the top of the steps on his back. He also called a taxi, and she went home to Roselands by taxi.

3 The next morning she went to Canterbury Hospital and was treated there. She was cross-examined about the history she gave to the hospital staff, but it is not in dispute that she fell on the stairs at Sydenham station and fractured her ankle. The defendant, the occupier of the station, did not call any witnesses. The plaintiff's evidence was not challenged on this point. It is also not in dispute that at the hospital, and on a subsequent visit to a general practitioner, the plaintiff was accompanied by her landlady, Ms Bi Li Lin. The plaintiff is still not confident about her proficiency in English, and at the time she had been in Australia for less than three months. She was in great pain and clearly needed emergency medical attention. Ms Bi went with her and provided her own Medicare card to the hospital, and subsequently the general practitioner. By this time the plaintiff's ankle was considerably swollen, and the medical staff, after diagnosing and examining the plaintiff, fitted a wooden splint to her ankle and sent her home. They told her to return after a few days when a plaster cast would be fitted.

4 The name of the patient on the hospital records and those of the general practitioner, in respect to the treatment on 29 December and 1 January is that of Ms Bi, not that of the plaintiff. On and after 3 January, the plaintiff's name appears correctly.

5 The plaintiff certainly told hospital staff about pain in her left ankle, but she did not mention her back. Two days later, on 1 January 2003, she returned to the hospital as directed. Many people were waiting, and after some time she decided to return home without waiting for treatment. Again, in the company of Ms Bi, she saw a local general practitioner, who removed the wooden splint. She returned to the hospital on 3 January, when a plaster cast was fitted and she was given crutches. She remained in the plaster cast, moving with crutches for about 3 months. During this time she went several times to the fracture clinic at Canterbury Hospital for physiotherapy, and after the plaster cast was removed, for hydrotherapy on her ankle.

Sexual assault and robbery

6 A few weeks after the accident, while her ankle was still in plaster and she was moving with the help of crutches, she met a man who invited her to his house. This house was also in the Roselands area. On one occasion the man invited her to his bedroom, on the pretext that his parents were downstairs. She accompanied him. When she reached his bedroom he took her handbag and mobile phone and placed them on the top shelf of a cupboard. He then made it clear that he wanted to have sex with her. She said that she did not want this, but he insisted. He asked her not to make a noise because of his parents. Her evidence was that she wanted to leave, but could not do so because, principally, her leg was in plaster and she required crutches to move, but also because she did not have the phone or handbag. At one stage she told him that if he wanted to have sex he would have to use a condom. He said that it was too late for that. It is unclear that there was any physical restraint placed on her, but she did give evidence that after having sex he beat her and she felt pain all over her body. She felt unable to leave and ultimately, though unwillingly, agreed to have oral and vaginal sex with him. This event caused her considerable distress.

7 Before she left Roselands, she was also the victim of a robbery in the street when her mobile phone was stolen from her.

The plaintiff's history

8 The plaintiff was born in Taiwan on 16 January 1971. Her family still lives in Taiwan. She completed secondary school. She undertook some business training. From1991 to 1993 she was a full-time student and obtained a bachelor of education degree. She worked full-time as a teacher of Chinese, and subsequently, on a casual basis, as an education counsellor. From 1996 to 1999, she did some studies towards a master’s degree in adult education, which she completed after a period of full-time study in 2002, just before she came to Australia. From 1999 to 2001, she worked as a television news reporter, first on a regional station and then in a national station in Taiwan. Her evidence was that for this work she was paid the equivalent of about $A500 per week.

9 She then decided to spend some time traveling. She obtained a visa to enter Australia. The conditions of her visa included a prohibition on working in Australia, and she was permitted to study for up to 3 months at a time. She arrived in Australia for the first time on 23 September 2002 and studied English for 2 months at a private college in Sydney. She then went to New Zealand for 2 weeks and returned to Australia on 18 December. She returned to her English course at a private college in York Street, Sydney.

10 At the time of her fall, she was living in Ms Bi’s house as a result of her responding to a newspaper advertisement calling for a person to look after two children in exchange for accommodation.

11 The plaintiff is a well-educated and intelligent woman. While she was studying English, it is clear that she was not confident, at the time of the accident, of her ability either to understand spoken or written English or to speak English and that her ability was limited. Even at the hearing, she gave evidence through an interpreter, and although I formed the view that she did understand some of the language used, it would not have been fair for her to have faced the prospect of giving evidence in English without the benefit of an interpreter. It is also clear that in December 2002 she had been in Australia for 3 months and was unfamiliar with many features of life in Australia.

12 I accept that when she used another person's Medicare card, she did so because she was in severe pain and probably shock, and clearly required immediate medical attention. Ms Bi was not called, although the evidence was that she had a slightly better understanding of English so that she was able to do some translation for the plaintiff. I do not attribute any improper motive to either of these women, in using a name and Medicare card that was not the plaintiff's in order to ensure that she got necessary emergency treatment. I put this down to cultural differences.

13 After she fell at the railway station, she was not able to return to study for some time, and when she was able to return to do so, her physical and psychological condition meant that she was unable to attend every day. In the second half of 2003, she enrolled in some business courses at the Ultimo campus of the Sydney Institute of TAFE, but attendance records show that her attendance was irregular. Ultimately she was permitted to withdraw from all these courses without failure. I assume that this was allowed for medical reasons,

14 Because the plaintiff's mobility was limited, she was restricted in her ability to care for Ms Bi’s children and to do any household tasks. Her evidence was that Ms Bi did most of this and also assisted her in going to medical appointments and in shopping, etc.

15 About the time her plaster was removed, in late March or early April 2003, she moved to a house in Auburn. She shared this house with another person, who, she said, would assist her by driving her to appointments and helping her with the shopping, cooking and housework. Although she was no longer using crutches, she still used a trolley for support and to carry books. She remained at this house for some months. She then met a man from the Chinese mainland who was a house painter. She moved into a flat with him, also in Auburn. She had a domestic and sexual relationship with this man, which lasted until his visa expired and he was obliged to return to China. She worked part-time in his business, working from home. He did most of the housework cooking and shopping, and drove her to the station and to appointments. After the relationship ended she moved to another house in Lidcombe. Since early 2006, she has lived in a boarding house in Surry Hills.

16 At some stage after the accident she intended to go to Fiji. Before she left, she checked with the Immigration Department about her visa status, As a result, she formed the opinion that it was acceptable for her to delay the visit to Fiji, and she did so. Subsequently another Immigration Department officer told her that what she had done was not permitted. She formed the view that she was in trouble. She did not wish to return to Taiwan until the court proceedings arising out of the accident were completed, although she did make one visit to her family in Taiwan after the accident. Since returning from Taiwan it appears that she has no valid visa, and is therefore illegally in the country. Because of her visa conditions it is clear that she has never been able to work in Australia, and that she has never been entitled to social security or Medicare benefits.

17 She says that since the accident her physical condition, and her depressed mood, have combined to mean that she has difficulty moving about. As indicated she has not completed courses of study that she began.

18 After the plaster cast was removed, and she stopped having physiotherapy and hydrotherapy at Canterbury Hospital, the only treatment she has received has been from Chinese traditional medical practitioners -- mostly in Parramatta, but on one occasion at Campsie. She has also attended sessions of yoga and Chi Gong, which she says it eases her pain. She paid for the Chinese traditional medicine and has produced some receipts for this. The yoga and Chi Gong were free.

19 She claims that her accident was due to the breach of the defendant's duty in providing safe access to the railway platform. She claims damages for non-economic loss, for out-of-pocket expenses, past and future, and for domestic assistance.

Why did the accident happen?

20 The plaintiff tendered a report from an engineer, Mr Robert Nicholson, which itself was based on tests conducted by Mr Carl Strautins. The defendant did not call any witnesses or tender any reports, other than medical reports. It is notorious that the defendant is a large organisation responsible for the management of railway services, including railway stations. I am entitled to, and do, infer from the absence of any evidence called by the defendant as to the actual accident or the State of the stairs at the Sydenham railway station, that any evidence it called would not assist its case.

21 The plaintiff gave evidence that she re-visited the scene of the accident in October 2004, when she took some photographs. She says that she did not notice any significant difference in the condition of the stairs between that time and the time of the accident. She was not challenged on this evidence and I therefore accept it.

22 Mr Nicholson acknowledged that the station had been constructed before the introduction of a relevant Australian standard for surfaces. He commissioned Mr Strautins to conduct tests of the coefficient of friction on the stairs, and particularly on the nosings of the stairs. He observed that the nosings of the stairs had been painted bright yellow. He assumed that this was to make them more visible. He also observed signs placed near the stairs by the defendant warning members of the public that the stairs were slippery when wet. He inferred that this indicated that the defendant had actual knowledge of the risk to invitees, such as the plaintiff, of slipping when the stairs were wet. He also observed that the stairs were fitted with an appropriate handrail.

23 In paragraph 16.2 of his report he says:

"The tests undertaken and in accord with the Australian standards on the stairs show conclusively that the stairs in the wet have a very hazardous BPN (related to coefficient of friction) where BPN readings on the unpainted concrete are high [therefore indicating that the unpainted parts of the stairs were not slippery] but with readings on the stair nosings very low and well below the minimum specified in the Australian standards. The stair tread and surface is therefore inconsistent and on the nosings where a high BPN or coefficient is required, it is very low and thus the stairs are hazardous. "

24 In paragraph 16.5 he continues,

"However, the painted stairway nosings should not have been installed so that they were slippery and dangerous in the wet. Had a suitable yellow paint been applied that had carborundum or similar anti-slip grains in the paint the writer is of the opinion that the stated accident would have been averted."

25 Mr Nicholson expresses the opinion that stairs should be constructed so that persons wearing proper footwear should be able to place their foot on the nosing of the stair in such a way that some part of the foot -- presumably the toes -- overhangs the nosing, without any danger of the foot losing traction. His opinion is that the condition of the stairs was hazardous and that this caused the accident.

26 The defendant does not seriously contest this finding. It says, however, that the plaintiff failed to take care for her own safety.

27 I find that the defendant had a duty to the passengers on its trains to provide safe access to its platforms, regardless of the weather. By painting the nosings of the stairs with yellow paint, to increase their visibility, the defendant may have been acting reasonably in one way, but in using a paint that caused an unduly low coefficient of friction on the nosing, it acted unreasonably. The expert suggested an easy and reasonable way of avoiding this risk, namely, by adding carborundum or some similar substance to the paint. There was a breach of this duty and this breach of duty caused the plaintiff's ankle injury. The defendant is therefore liable to the plaintiff.

Contributory negligence

28 The defendant says that the plaintiff failed to take reasonable care for her own safety, because she was not holding on to the handrail at the time she lost her footing. Counsel for the plaintiff pointed out that it is impossible for a person walking down the stairs to keep a grip on the handrail while doing so. The plaintiff says in fact that she did at first hold on to the handrail, at the top of the stairs, and then let go. On this evidence, given the impossibility of a person descending stairs while keeping hold of the handrail, I cannot find that the plaintiff failed to take reasonable care in this respect.

29 The photographs taken by the plaintiff in 2004 show that there are painted signs warning people to watch the steps, and the plaintiff did not contest that there are, in fact, signs near the stairs that point out that the stairs are slippery when wet. She says that on the night of the accident she did not see any such signs. However, she says that she was taking care and walking carefully, because she had seen the water on the walkway across the railway tracks and on the stairs. I accept her evidence that she was taking care and I find that there was no failure on her part to take reasonable care for her own safety.

The plaintiff's injuries

30 It is not in issue that the plaintiff fell and broke her ankle and suffered quite serious consequences from this injury.

31 She also claims that, as a consequence of her fall, she has suffered injury to her lower back.

32 There is medical evidence that she suffered from a psychological disorder of a depressive kind, which affects her ability to lead a normal life, and may affect the prospects of employment in the future.

Back pain

33 The plaintiff did not complain of back pain to the Canterbury Hospital or the general practitioner who removed the splint. The first complaint of this nature appears to be a complaint made to an orthopaedic surgeon, Dr Michael Giurgis, who saw her at the request of her solicitors, to prepare a medico-legal report. Dr Millons, an orthopaedic surgeon who saw her for the defendant, admits the possibility that she may suffer from back pain. The defendant submitted that this pain may not have resulted from the fall at the railway station, but rather from some other cause, such as the beating she received following the sexual assault.

34 In any event, the plaintiff concedes that the back pain has been of less concerned to her than the pain in her ankle. She says that on one occasion she received a remedial massage from a Chinese traditional medical practitioner, but agrees that she has not received any other treatment.

Psychological injury

35 The plaintiff says that the injury to her ankle and the resulting pain and immobility caused her to become depressed immediately. The defendant contends that the psychological injury, more likely than not, resulted from the sexual assault rather than the fall at the railway station.

36 The plaintiff has been examined by Dr Law, who was qualified by her solicitors, and by Dr Revai, for the defendant. Neither psychiatrist had a full account of the sexual assault. On the first occasion Dr Law saw the plaintiff, she did not give any history of this, and on the subsequent occasion when she did give the history, it was not as comprehensive as the evidence that she gave in court about this incident. Dr Revai received a fuller account, but that history was still incomplete. Neither psychiatrist appears to have been told about the robbery of the mobile phone.

37 The defendant, while not suggesting that the sexual assault did not take place, generally attacked the plaintiff's credit. In a criminal trial, a judge is obliged to tell the jury that there are many reasons why a credible complainant may not complain of sexual assaults immediately. In any case of sexual assault, the victim is likely to suffer embarrassment, and this embarrassment is likely to be exacerbated where, as in this case, there are significant cultural differences. I accept the version of events given by the plaintiff in court. I accept that, a few weeks after the railway station accident, she was sexually assaulted and beaten. It follows that such an event is likely to have serious psychological consequences for her.

38 The plaintiff says that the sexual assault occurred, in large part, because she was partially immobilised by the injury to her ankle. Because her ankle was in plaster and she required crutches to move, she was not able to escape from her assailant. Therefore I must consider whether the accident was a contributing factor to the sexual assault.

39 The Civil Liability Act 2002, provides

5D.General principles

(1)A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( scope of liability ).

(2)In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

40 On the evidence as presented, I find on the balance of probabilities that the plaintiff would not have suffered the sexual assault if she had not been injured to the extent that her ankle was in plaster and she required crutches for mobility. It can be said that, "but for" the injury to her ankle, she would not have suffered the sexual assault and its consequences. In that sense, the accident at the railway station can be said to be an element in the factual causation of any psychological injury resulting from the sexual assault.

41 I must therefore consider whether the responsibility for this harm should be imposed on the defendant, whose negligence was responsible for the ankle injury. The strongest argument advanced by the plaintiff is an argument by analogy. The plaintiff argues that if a negligent person (A) causes an injury to another person's (B’s) ankle and B is then struck by a car while crossing the road, because his or her mobility is impaired, it is reasonable to impose (at least joint) responsibility for the harm on A. In other words, where a person's negligence causes loss or damage to another person and that loss or damage exposes that other person to a significantly greater risk of further loss or damage than would have been the case had that person not suffered the original injury, the negligence of the first person is a cause of the injury to the second person, and the first person is legally responsible for it.

42 I find, therefore, that the psychological injury to the plaintiff, which she would not have suffered but for the ankle injury, but which she did suffer because of the sexual assault, is within the scope of the defendant's responsibility. In terms of the common law, this would be a foreseeable consequence of the defendant’s breach of duty, which led to the ankle injury.

Extent of injury

43 The medical evidence before me is relatively sparse. I have the hospital notes and the notes of the general practitioner who removed the splint. The fracture of the ankle and consequent restriction of mobility is clearly demonstrated.

44 Is also clear that the plaintiff has sustained some soft tissue injury to her lower back, which causes her discomfort. This injury was not reported to the hospital. Even allowing that the plaintiff's main concern at the time was for her ankle, I cannot be satisfied on the balance of probability that the back injury, which can be no more than a soft tissue injury, was a result of the fall on the steps of the railway station.

45 Because she is not eligible under the Medicare scheme, the treatment she has received for her physical injuries has been limited and, in my view less than optimal.

46 I have already considered the psychological injury and its origins. Both psychiatrists agree that there is evidence of a depressive condition. They do not agree on the label for this condition, but they do agree that it is manifested in a number of symptoms, such as lack of confidence, low self-esteem, and sleep disorder. This condition is undoubtedly debilitating and must be reflected in the general damages awarded. Dr Law considers that this condition will respond to appropriate treatment and will not result in any permanent impairment on the plaintiff's ability to enjoy life.

47 The plaintiff gave evidence that since the fall at the railway station, she has had a depressed mood, and a general lack of confidence. She has not wanted to socialise or to go out. Her evidence is that she did persist with her studies for a while. She also agrees that she was able to enter into and maintain a satisfactory relationship with a man, and that this relationship ended only when he was forced to leave the country.

48 Her visa conditions make it impossible for her to work in Australia, and she is extremely pessimistic about her ability to return to a career as a news reporter or presenter on television in Taiwan. In part this is due to her psychological problems, but she also says that her ankle would have impaired her mobility and make it difficult for her to work the long hours that such a position entails.

Disabilities -- domestic assistance

49 The plaintiff says that she has been unable to carry out housework, to cook, or to do shopping since she fell at the railway station. She has relied on other people to help her. She did give some estimates of the assistance she has received to the occupational therapists whose reports are in evidence. She was cross-examined closely about her claim for assistance in transport. I find that since about April 2003, she has been able to travel by public transport without undue inconvenience. She has also been able to walk from her home to railway stations. She certainly has preferred to receive lifts from friends, but there is no question that she is able to use public transport when required. She gave evidence that she could use a trolley, and that she did use one when she went to the library or when shopping.

50 The evidence before me suggests that she did receive significant domestic assistance on a gratuitous basis from Ms Bi immediately after she was injured and until her plaster cast was removed. The assistance was not quantified.

51 The Civil Liability Act 2002, s 15, provides:

(3)Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:

(a) for less than 6 hours per week, and

(b) for less than 6 months.

52 I cannot be satisfied on the balance of probabilities that even if the plaintiff has been provided with gratuitous assistance in the past, it crosses the threshold established by this subsection.

53 The occupational therapist qualified by the plaintiff, Ms Petrovska, suggests that she requires domestic assistance in a way that would bring the plaintiff over the statutory threshold. The basis upon which this occupational therapist formulated her opinion, in my view, does not accord with the evidence given by the plaintiff. I cannot be satisfied on the balance of probabilities that the plaintiff's need for domestic assistance is of the magnitude set out in Ms Petrovska’s report. The occupational therapist qualified by the defendant, Ms Piebenga, estimated that, put at its highest, the plaintiff's need for assistance was of the order of about five hours per week or less. She did so on the basis of a history and examination of the plaintiff which accords with the evidence of the plaintiff, and which was tested by vigorous cross-examination. In my view of the assumptions upon which this opinion is based are more consistent with the evidence given in court by the plaintiff, and for that reason I prefer the opinion of Ms Piebenga.

54 For this reason I do not make any award of damages for domestic assistance, past or future.

Damages

55 The plaintiff is entitled to damages for non-economic loss.

56 Before the accident, the plaintiff was a highly educated woman working in an interesting and demanding job. She had voluntarily given up this job in order to travel, but she believed that she would be able to return to it, and possibly advance her career because her ability to speak and understand English would have improved during her travel study outside Taiwan. She gave evidence that before the accident she had friends and participated regularly in church activities. After the accident she did not socialise nearly to the same extent. She found that her hair, which had been black before the accident, immediately and suddenly turned grey and continued to become greyer. I accept that her hair was probably unusually grey for a thirty five-year-old Chinese woman. Not only did she suffer the normal pain and loss of amenity that follows a fractured ankle, she also developed the psychological disorder -- a depressive illness -- which has affected not only her enjoyment of life, but also her earning capacity. She has expressed concern at her inability to marry and have children, even though she has apparently enjoyed at least one successful relationship since the fall at the railway station.

57 The evidence of her non-economic loss is primarily the evidence of the plaintiff herself, but it is corroborated by the evidence of the two psychiatrists, Dr Law and Dr Revai.

58 I assess her non-economic loss at 30% of a most extreme case. Her damages for non-economic loss will therefore be $98 000.

59 The plaintiff is also entitled to past out-of-pocket expenses, which have been agreed at $6285.

60 In determining whether any future treatment is required, and if so, what that treatment might be, I place more reliance on the opinion of the psychiatrists than on that of the orthopaedic surgeon, Dr Giurgis, who expresses the view that the plaintiff will need acupuncture, massage and physiotherapy for some time to restore her ankle to its pre-accident condition. Dr Law, the psychiatrist, recommends counselling, to assist the plaintiff cope with her depressive disorder, and he also suggests that she should attend one session of acupuncture or similar treatment each week for a year. In view of the plaintiff's association of her physical injury with her depression, I am satisfied that acupuncture directed to her ankle would also have psychological benefits. Dr Law suggests that she should see a psychologist or psychiatrist for counselling every 3 weeks for a year at $160 per session.

61 On this basis I will allow a sum of $2560 for counselling and $3500 for acupuncture ($70 per week for 1 year). I award these damages on the basis that the plaintiff would remain in Australia, although I accept that the reality is that she is likely to return to Taiwan.

62 The plaintiff claims damages for past loss of earnings and for loss of earning capacity. It is clear that she would not have been able to earn anything in either Australia or Taiwan for a significant period after the accident. I am prepared to allow loss of wages at $500.00 per week for three years ($75 000). Although Dr Law considers that she is now psychologically unfit to work as a television reporter, I must accept that it was her choice to remain in Australia until the outcome of these proceedings, rather than return to Taiwan, where she could expect to find work either in television or as an educational councillor. I accept that her physical injury would have restricted her from doing the same exact tasks that she did before her injury. The plaintiff suggests that it would be appropriate to allow for total loss of wages for that period since April 2003, when, but for the accident, her evidence is that she would have returned to Taiwan. I accept this, not because I find that she is physically incapacitated for work, but because I find that her depression or would have prevented her from working for a period of at least 3 years. If she receives the type of counselling recommended by Dr Law, there is no reason to find that she would not be capable of finding work in Taiwan. I accept that her physical injuries would probably have prevented her, indefinitely, from doing exactly the same work that she did before she came to Australia. I am prepared to allow damages on the basis of a loss of earnings of $150 per week for the remainder of her life. This results in an award of $54 060 (150 X 0.424 X 85%)

63 There will be a verdict for the plaintiff in the sum of $239 405.00

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