SERISIER v HAINES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and CLARKE JJA 20 June 1994, 29 November 1994 [1994] NSWCA 284 SHORTHAND WRITER — Injury to right arm and hand — Failure by employer to take appropriate action — Injury reasonable foreseeable SHORTHAND WRITER — injury to right arm and hand — failure by employer to take appropriate action — injury reasonably foreseeable — evidence of complaints by employee not adequate — not appropriate for court to assess damages — new trial required. The appellant suffered an injury to her right hand and arm while employed by the respondent as a shorthand writer. She claimed damages in negligence on the grounds that the respondent had failed to provide a safe system of work and had failed to take appropriate action after she complained of symptoms. Held: (1) Based on information in the respondent's possession at the time the appellant lodged a complaint about her symptoms, it was reasonably foreseeable that prolonged shorthand writing might cause injury to the appellant. (2) A deficiency in fact finding, not the fault of the appellant, as to the nature of complaints by her to her employer between 19 August and 18 September prevented a finding, in the appeal, on the question whether the respondent failed to take appropriate action after complaint by the appellant. It would not be appropriate for this Court to make a finding on this matter. (3) In view of questions raised about the appellant's credibility and some of her observations about these matters it would not in any event be appropriate for the court to assess damages even if the appellant were entitled to a judgment. Hence (4) a new trial is the only way of satisfactorily dealing with this case. ORDERS 1. Judgment below set aside. 2. New trial ordered. 3. Costs of the first trial to abide the second trial. 4. Costs of the appeal of the (plaintiff) appellant to be borne by the (defendant) respondent. Mahoney JA I have had the benefit of considering in draft a judgment prepared by Priestley JA. His Honour is of the opinion that the appeal should be upheld and that there should be a new trial. I concur in the orders proposed by his Honour. The present appeal raises for consideration difficult questions of law relating to the obligation of an employer in respect of the protection of an employee against physical harm. I do not differ from the views expressed by Priestley JA as to the principles involved. If the employer was conscious that the work being done was in fact causing from time to time physical pain and discomfort of the kind to which the plaintiff referred in her evidence, then the employer had a duty to take precautions against her being involved in further work of this kind: at least, there was an obligation to avoid involving her in such work where she was complaining of pain or where, having regard to her history, the work was apt to cause her pain and produce the kind of permanent discomfort she alleged. 2 UNREPORTED JUDGMENTS However, I have doubt as to whether the employer's state of knowledge was such. The employer knew that at earlier times the plaintiff suffered pain from the work that she did. It was a situation not uncommon amongst shorthand writers. But the existence of pain did not mean that the employer was obliged to stop the employee working thereafter as a shorthand writer. What was involved in such a case was essentially the proper management of the employee. The complaint in the present case was, I think, essentially that the employer did not properly manage the employee in this regard. Before the Court, a good deal of attention was paid to the state of the plaintiff s condition at or about the time when she undertook the country work from which, she says, her final condition developed. The employer's case was, on one version of it, that at that time the employee had not been complaining of pain, that she did not have to undertake the work in question, and that she went upon the country trip for her own purposes and of her own choice. There was, the suggestion appeared, nothing to warn the employer that if she went upon the country trip, she would suffer strain of the kind now suggested. It has been suggested that, in relevant respects, the findings made by the learned judge are not clear or, at least, that the judge did not make findings sufficient to enable this aspect of the matter to be properly determined. The findings, the suggestion has been, involve the assessment of the credibility of the employee in this regard and, it is suggested, this Court is not in a position to make such findings. My mind has wavered in this regard. My brethren are of the view that the findings which have been made or not made require that there be a new trial. In the end, I do not dissent from that view. It is, I think, proper that the Court know to what extent precisely the evidence given by the employee is to be accepted in this regard. I therefore concur in the orders proposed. Priestley JA The appellant in this appeal was the plaintiff in proceedings in the Common Law Division of this court against the defendant Mr Haines, who represented her former employer, the Department of Attorney General and Justice. In that Department, the plaintiff worked for the Court Reporting Branch. I will refer to the employer as the defendant or the Branch. In the proceedings the plaintiff claimed damages for the injury she suffered to her right hand and arm in the course of her employment as a court reporter. The plaintiff began work as a court reporter in 1974. In August 1981, she first suffered painful symptoms in her right hand and arm when taking shorthand. By mid December 1981 her condition had reached such a stage that she stopped work. She did not afterwards work as a shorthand writer. Her case came on for hearing before Mathews J in 1991. The plaintiff s case before Mathews J was that it was the defendant's negligence which had caused the injury which forced her to stop working. Negligence was alleged in two separate ways. The first was that the defendant had, up to and including 19 August 1981 failed to provide a safe and proper system of work, or to give adequate instruction to its employees to follow such a system, particularly in relation to regular rest periods and the rotation of staff. Under this head of negligence it was alleged that the symptoms which the plaintiff suffered when taking shorthand in court on 18 and 19 August 1981, and her later more serious symptoms, were caused by the employer's failure to provide a safe system of work, appropriate instruction etc. URJ SERISIER v HAINES (Priestley JA) 3 Mathews J found against the plaintiff on this head of negligence for two principal reasons: that there was no evidence that the plaintiff's continuing disabilities were caused by her employment before 19 August 1981; and there was nothing to suggest that the defendant's system of work was "so inherently and foreseeably dangerous as to require a reasonably prudent employer to reassess or rearrange its work processes in the manner suggested by the plaintiff'. The second head of negligence relied on events beginning on 19 August 1981. On that day the plaintiff complained of her symptoms to a superior officer, who made an official note of her complaint. There followed a period, from 19 August to 18 September 1981, during which the plaintiff's work load was light. After that she worked in the District Court at West Wyalong in the week commencing 21 September and the District Court at Wagga Wagga in the week commencing 28 September. During both of these weeks she worked as a court shorthand reporter for extended hours. The plaintiff s allegation under the second head of negligence was that the defendant as a reasonably prudent employer should either have relieved her from taking shorthand altogether or have reduced her work load so that it was no longer painful for her to perform it and should not have sent her away to District Courts held in country towns where the work load was predictably heavy; it was alleged that the defendant's unreasonable failure to take steps to accommodate the work required of the plaintiff to the painful symptoms she was experiencing had the effect of converting what was a transient arm pain into a permanent disabling arm injury. Mathews J, after discussing the evidence in some detail, and indicating her reasons for resolving some contested issues in the way she did, made the following chief factual findings: 1. In August 1979 the Branch began to keep a complaints book for the purpose of recording complaints of injury made by employees. In the two years before 19 August 1981, ten complaints were recorded from five court reporters of painful symptoms in their shoulders, arms and/or wrists, said to be associated with the taking of shorthand. Each of these complaints was followed by a loss of working time, after presentation of medical certificates. According to the evidence of Mr O'Brien, who had worked at the Branch between 1960 and 1986, being the Chief Court Reporter in the last two years, and who had been Acting Assignment Officer in 1981, and whose evidence Mathews J described as objective and thoughtful without bias either to the plaintiff or defendant, he knew of only two cases of work related arm injury before the complaints book came into existence. 2. At the time of the plaintiff's complaint of 19 August, the Branch's method of dealing with such complaints depended on the employee obtaining a medical certificate. The Branch then attempted to abide by the medical advice. As a result, a number of reporters had their workloads reduced or were relieved entirely from shorthand duties. The Branch also relied on medical advice to indicate when a reporter should be allowed to resume normal duties. (Her Honour made it clear in another part of her reasons that the medical advice she was here referring to would generally be that obtained by the employee. Although she recorded these findings by way of a summary of Mr O'Brien's evidence, it seems clear that she accepted the evidence thus summarised.) 3. Following the complaint of 19 August, and until December, if the plaintiff from time to time (as she asserted) made complaints of continuing symptoms, they were "in the nature of passing comments as to her difficulties, rather than serious complaints of injury such as was made on 19 August". 4. From 19 August to 18 September the plaintiff's work load was light. 4 UNREPORTED JUDGMENTS 5. The two weeks commencing 21 September involved a good deal of hard, constant work, during long hours taking shorthand. 6. From 6 October until she stopped work, her work was relatively light. 7. On 2 November 1981 the plaintiff consulted her local doctor about her problems with her right hand and arm. His notes recorded her as having told him she had felt pain on taking shorthand since August 1981; until about five days before she went to see him, the pain had dissipated after about five minutes rest, but during the last five days it had become worse. He gave her a medical certificate in which he said she was suffering from "tenosynovitis of the extensors of the right wrist caused by work as a court reporter on 19/8/81". The last words the doctor wrote in the certificate were "fit to work". 8. The plaintiff woke, on 8 December 1981, with severe pain in her right wrist. The same doctor gave her a certificate that she was unfit for work until 15 December. When she returned to work at the end of that period her symptoms were immediately exacerbated. She did not work as a court reporter after 17 December 1981. 9. The plaintiffs complaints about her continuing problems with her right arm were genuine. 10. The plaintiff's problems as they were at the time of the trial, were directly attributable to the plaintiffs employment as a shorthand writer with the defendant. 11. The, plaintiff's continued duties between 19 August 1981 and December 1981 so exacerbated her symptoms as to be a substantial cause of her continuing disabilities. The symptoms she had suffered on 19 August were probably only a transitory condition, which was converted into a permanent incapacitating injury by her continued performance of her duties as a shorthand writer. 12. The defendant did not know in 1981 that repetitive hand movements such as the taking of shorthand could cause permanent injury as opposed to some passing discomfort. 13. It was not reasonably foreseeable in late 1981 that unless preventive measures were taken the condition of a shorthand writer who had started to complain of pain might deteriorate. 14. In the state of knowledge in 1981 there was no particular approach to the problem that the plaintiff made known to the defendant which was so generally recognised and accepted that the defendant should have adopted it in the plaintiff's case, in the absence of any recommendation from a medical practitioner. Mathews J thought findings 13 and 14 were fatal to the plaintiffs second cause of action. Overall, her reasoning in regard to the plaintiffs two causes of action was as follows. In regard to the first it was not shown that the Branch's system of work was, by the standards and knowledge of August 1981, an unsafe one in the sense that the employer was in breach of the employer's duty to provide a reasonably safe system of work for employees by having its then system in operation. The starting point of Mathews J's reasoning on the second cause of action was her conclusion in regard to the first, that the defendant's system of work was reasonably safe. On the basis that the Branch's system of work was not an unsafe one in the relevant sense, it became necessary to consider the second cause of action in the light of the particular circumstances of the plaintiffs own work and complaints to the Branch. In this respect findings 3 to 7 are of particular URJ SERISIER v HAINES (Priestley JA) 5 significance to the judge's conclusion on the second cause of action. These findings should be borne in mind when considering the following statement of her Honour: "Before an employer can be expected to treat an employee's problem as a serious one which requires the taking of remedial action, it must be shown that the employee also treats the matter seriously. The Branch would be entitled to expect, in my view, that any reporter who had a serious on-going problem with pain would consult a medical practitioner. If the practitioner pronounced the reporter unfit for work and the employer ignored the advice, then there would be clear evidence of negligence. But I see no reason why an employer should be expected to assume, in the absence of medical advice, that an employee's complaints of pain reflected a serious condition which required immediate remedial action." In its context, I read the opening words of this passage as referring to an employer who is providing a reasonably safe system of work for employees. Implicit in her Honour's reasoning is the view that such an employer, who ex hypothesi has already done all that needs to be done in regard to health and safety at work, is, by that very fact, in a position where the employer can only be expected to do anything further to provide for the employee's health or safety at work when the employer is either on notice, or ought to be on notice, of some particular circumstance, relating to an employee or employees, requiring something additional to what is already in place as part of the existing system of work. It was on the basis of this view that her Honour thought that the Branch's method of dealing with complaints as at August 1981, namely by attempting to abide by medical advice received, and, when that advice so indicated, giving reporters reduced workloads or relieving them entirely from shorthand duties, was an eminently reasonable one. The fact that her Honour thought that the system described by Mr O'Brien in place in August 1981 was, in light of the knowledge and standards of the time, an eminently reasonable one, in her Honour's view effectively undermined the plaintiff's case: "For it was not until 2 November 1981 that she first sought any medical attention for her condition. By that time it was only five weeks before she stopped taking shorthand, and it was well after the offending circuits at West Wyalong and Wagga Wagga. The certificate which she then obtained said that she was fit to work. In other Words, there was never any suggestion based on medical grounds that the plaintiff was other than fit for normal duties until 8 December when she ceased work altogether. This was, significantly, in response to the advice contained in a medical certificate." Her Honour's reasoning thus was that, the system of work itself not displaying any breach of duty to the plaintiff, there was nothing in the facts of what actually happened between the plaintiff and the Branch between 19 August 1981 and the time in December when the plaintiff became unable to work which required the Branch to do any more than it did do in response to what it knew of the plaintiff s symptoms. In the appeal counsel for the plaintiff directed his submissions to the second cause of action. The argument first drew attention to various statements by her Honour in which it was said she had formulated the test of reasonable foreseeability too narrowly in that she indicated the question was whether it had been reasonably foreseeable that writing shorthand could lead to severe or long term injury. Counsel succinctly made this point, and the substance of the whole 6 UNREPORTED JUDGMENTS argument, as follows: "It is submitted that a reasonable employer in August 1981 would have been alive to the risk of (not necessarily the specific injury that her Honour was seeking proof of foresight of), but of unnecessary exacerbation of painful symptoms justifying the reduction of workload at least until the matter could be looked into and considered with the benefit of a deeper understanding of its underlying aetiology and the possible physiological and other sequelae. A reasonable employer confronted with a complaint the ramifications of which he is ignorant of, but the cause of which is patently the work he is requiring the employee to do, declines to take some temporary palliative measures at his peril." In this submission was a contention which became the substantial point in the appeal. This was that, following the complaint by the plaintiff of 19 August, it was reasonably foreseeable, from the point of view of the Branch, that prolonged periods of continuous shorthand writing might cause injury to the plaintiff. In this respect, counsel emphasised, as had his predecessor at the trial, that the sending of the plaintiff to do the two weeks work in the country referred to in finding 5 was a decision which should have been foreseen as possibly causing injury to the plaintiff. It became clear, as the argument progressed, that although the plaintiff's counsel was not directing his submissions to the trial judge's rejection of the first cause of action, nevertheless his argument in favour of the second at bottom involved consideration of the reasonableness of the defendant's system of work, this being concentrated however, on the period after 19 August 1981 and in particular up to 21 September 1981. I have come to the conclusion that counsel for the plaintiff was right in the reasonable foreseeability aspect of his argument. After oral argument on the appeal ended an agreed chronology was at the request of the court prepared by the parties and made available to the court. Submissions concerning this were made in writing both on behalf of the appellant and the respondent. The chronology listed all employees who from 15 April 1977 until 21 September 1981 had made complaints to the defendant of injury or pain to hand or arm in the course of working for the defendant. This brought conveniently together material which was scattered through the appeal papers. Although the details in the chronology were not markedly different from those the trial judge had referred to (see finding 1 above), they showed a picture somewhat more favourable to the plaintiff's claim. In the period from 15 April 1977, eight employees had reported relevant symptoms to the defendant. Some of the symptoms were quite serious. Two of the employees had retired from employment on medical grounds. Then on 19 August 1981 there was the complaint lodged by the plaintiff. On 18 August 1981, 11 September 1981, and 21 September 1981, three separate employees reported, the first a sore right arm, the second a burning sensation in the right wrist, and the third a stabbing pain in the right wrist. In its written submission the respondent urged the court to bear in mind that the compilation of the complaints in the chronology brings them together in a way that they never were brought together for consideration by the defendant at the relevant time. The complaints book recorded injuries for workers compensation purposes and it is likely that the reports of injury now being considered were only a small part of what appeared in the complaints book. Even bearing these considerations in mind however, it seems to me that based on the information then in the defendant's possession, it was reasonably foreseeable at 19 August 1981 that prolonged shorthand writing might cause URJ SERISIER v HAINES (Priestley JA) 7 injury to those of the defendant's employees who had complained to the defendant of painful symptoms resulting from their shorthand writing. I reach this conclusion on the basis of information in the defendant's possession of what had been happening to its own employees. The fact that, as a general matter, the possible relationship of writing to repetitive strain injury was not in 1981 either well known or well understood is not really relevant to the foreseeability conclusion. General knowledge was not required. Sufficient facts were in the possession of the employer for the possibility I have mentioned to be reasonably foreseen by that employer. Mathews J had asked herself a similar question: by August 1981 had the level of complaints reached the stage of alerting the defendant to the proposition that shorthand writing carried an inherent risk of repetitive strain injury? She thought not, saying the complaints were so isolated and disparate that they appeared to reflect particular susceptibilities in the individual sufferers rather than an inherent risk in their employment conditions. The question as Mathews J expressed it is capable of being slightly misleading. I think it would be more accurately stated by asking whether the complaints had reached the stage of alerting the defendant to the proposition that prolonged shorthand writing - carried a risk of causing pain and injury to the writer. The term repetitive strain injury may carry with it the idea of a particular level and type of injury more difficult to prove than a plaintiff needs to prove for the purpose of foreseeability. My own view, on the materials that were in evidence before Mathews J, is that the question as I have stated it should be answered yes. Mathews J had considered another argument advanced by the defendant in the event that she made a reasonable foreseeability finding of the kind which, in my opinion, is appropriate. This further argument is the proposition stated in finding 14 above, which Mathews J made. To this proposition counsel for the plaintiff replied by reference to Mr O'Brien's evidence that when an employee produced a medical certificate recommending the reduction of shorthand workload or entire relief from shorthand duties because of symptoms manifest as a result of shorthand writing, the Branch complied with it. The argument continued that it was unacceptable for an employer which knew that its system of work carried with it the risk of painful symptoms for which in the past rest periods or cessation of shorthand writing had been prescribed to assert that it did not know that it was a reasonable response in the case of an employee who had painful symptoms resulting from shorthand writing, to withdraw the employee from shorthand writing for a period. It seems to me that this argument for the plaintiff should also be accepted. A further matter remains to be considered. It was contended for the defendant that if the court were to reach the point I have reached, it would still be necessary for the court to consider whether the defendant's reaction to the complaint made by the plaintiff on 19 August 1981 was a reasonable one in the circumstances. It was submitted that the fact that from 19 August to 18 September the plaintiff's workload was light was a sufficient response to what was in fact her complaint (and was in law something showing the reasonable foreseeability of risk in the plaintiff's being asked to do extended shorthand writing), at least until her symptoms had subsided. To resolve this issue a factual question needs to be decided. The plaintiff had said in her evidence that whenever she took shorthand after 18 August 1981 she suffered pain in her right wrist which, in the initial stage, improved after rest although gradually the recovery time increased. She said she gave a medical certificate from Dr Campbell to Mr Heam of the Branch 8 UNREPORTED JUDGMENTS early in September 1981 and in addition was frequently complaining to him and also to another officer, Mr Davies, about the pain in her right wrist. Her Honour did not accept all this evidence. Dr Campbell gave evidence from which it became clear that the first time the plaintiff consulted him concerning her right wrist was 2 November 1981. His records supported this, and it was conceded before Mathews J that the plaintiff must have been mistaken as to when she first saw Dr Campbell. As to the complaints which the plaintiff said she made to Mr Heam and Mr Davies, no admission was made by the defendant; Mr Heam was dead at the time of the trial and there was no further complaint recorded in the complaints book. Mr Davies was available however and was in the precincts of the court during the hearing. He was not called to give evidence. Mathews J said she had to assume that his evidence could not have assisted the defendant and that this added some credence to the plaintiff's claims of complaints to him after 19 August. It was in these circumstances that Mathews J made the somewhat enigmatic finding "that any complaints which she did make were probably more in the nature of passing comments as to her difficulties, rather than serious complaints of injury such as was made on 19 August". My comment that this is an enigmatic finding is not intended to be critical of Mathews J. On the way she decided the case it was not necessary for her to be any more precise. However, what she said does not amount to a finding that complaints of the "passing comment" kind were made; it is simply a finding that if they were made then they were of the "passing comment" kind. The point I have reached in my own consideration of the case requires, before a conclusion can be reached, more precise knowledge of what did or did not happen between 19 August and 18 September, in regard to complaints. In the respondent's final written submissions this point was made: "Tf the Appellant's argument on foreseeability is accepted, this deficiency in fact finding must be resolved before a verdict could be entered for her. This Court, not having seen the Plaintiff and heard her entirely unsatisfactory answers in cross-examination on this and other aspects, could not make a positive finding in her favour." Not having seen the plaintiff myself, I am not in a position to agree with the whole of this argument. I do agree with counsel however that there is a relevant deficiency in fact finding which must be resolved before the plaintiff could obtain judgment. I also agree that it would not be appropriate for this court to make such a finding. Although the defendant's counsel's written submission did not say so, it follows from his argument as I have set it out that the only way of dealing with the situation that arises on the conclusions I have reached is the ordering of a new trial. Counsel for the plaintiff had asked the court, if it upheld the appeal then to proceed and decide the matter without it being sent for a new trial. Mathews J did not in this case (and did not need to) embark on an assessment of the plaintiff's damages. In view of the questions raised about credibility and the like and some of her Honour's observations about those matters, it would not have been right in any event for the court to assess damages, had we come to the conclusion that the plaintiff was entitled to judgment. In my view the plaintiff is not entitled to judgment in this appeal. I think she is entitled to a new trial. Questions of damages in this case are inevitably bound up to some extent with the facts concerning the way the plaintiff suffered injury. Although it is often said that new trials are to be avoided, sometimes a new trial is the only way of satisfactorily disposing of a case. That seems to me to be the position here. URJ SERISIER v HAINES (Clarke JA) 9 In my opinion the judgment of Mathews J should be set aside and a new trial ordered; the costs of the appeal should be borne by the defendant; the costs of the first trial should abide the second trial. Clarke JA The background to the issues debated in this appeal was the relativelack of understanding in 1981 of the condition which has come to be known as RSI (repetitive strain injury). In that context the issues of foreseeability and reasonableness of the employer's conduct presented as the major matters for consideration. Mathews J decided that the plaintiff failed on the issue of foreseeability. Although I appreciate the reasons which led her Honour to that conclusion I am unable, in the light of the understanding test of foreseeability which this Court is bound to apply, to agree with her. I prefer the contrary view and in this respect I am content to adopt the opinion and reasons of Priestley JA. The issue of reasonableness is much more difficult. Although it should be accepted, in the light of the previous complaints to which Priestley JA has adverted, that the plaintiff established that it was foreseeable that continuous work as a shorthand writer might give rise to risk of injury there remained the question whether on the proven facts of this case the defendant had been shown to have acted unreasonably. Put shortly, the plaintiff's case was that after making a complaint to management on 19 August 1981 she continued to suffer, and complain of, right wrist problems until seeing her local doctor on 2 November and continuing since that time. It was her case that the defendant should either have relieved her from taking shorthand altogether or reduced her workload so that it was no longer painful for her to perform it. She claimed, in particular, that the defendant ought not have sent her on circuit in September for the work involved in the towns in question was predictably heavy. The defendant contested almost all of these assertions. It acknowledged that the plaintiff did complain of a sore right wrist on 19 August but denied that any further complaint of wrist problem had been made until November when it was presented with a medical certificate, the concluding words of which were that the plaintiff was fit for work. It also contested the plaintiffs account of how it was that she had been on circuit in September, asserting that she had sought that particular job herself. In general it submitted that in 1981 little was known of the potential problems associated with continuous shorthand writing and that the defendant's method of dealing with complaints of wrist pain was to act on medical certificates, and it was said this was reasonable. In these circumstances while it could be said that in a general way the risk of injury from continuous shorthand was foreseeable the resolution of the reasonableness issue required primary findings on the events which followed the complaint of 19 August. If the factual finding had been that no complaints were made between 19 August and 2 November, when the doctor's certificate stating that the plaintiff was fit to work was received, there would seem to be no basis upon which it could be said that the defendant's conduct was unreasonable. Similarly if the plaintiff had made only passing comments during that period concerning wrist problems her submission that the defendant had responded unreasonably would, as it seems to me, have been difficult to sustain. On the other hand repeated complaints of continuing wrist problems may well, depending on their content, have raised an arguable case. In that context the plaintiffs argument that reliance solely upon a medical certificate was just not good enough is not without 10 UNREPORTED JUDGMENTS substance. According to this argument, which would place reliance on complaints made by other employees prior to 19 August as well as the plaintiff s continuing complaints, facts which were known to the defendant required it to take positive steps, such as ceasing the plaintiff's shorthand writing obligations, or reducing them. If it failed to take these steps it would have failed reasonably to respond to the risk which presented. It follows that a finding on the complaints issue was essential before consideration could be given to the reasonableness of the defendant's conduct. Her Honour adverted to the plaintiff s assertions that she had complained on a number of occasions of wrist problems and observed that her account was strongly challenged. What is more the plaintiff was shown conclusively to have given an erroneous account of providing the defendant with a medical certificate from Dr Campbell in early September 1981. In these circumstances there was much reason to doubt the reliability of the plaintiff's account. On the other hand one of the persons to whom, as she alleged, she complained was present at court and was not called to contradict her testimony. In these circumstances the complaints issue must be regarded as having been a lively one. Her Honour did not deal expressly with the credibility or reliability of the plaintiffs relevant evidence but said: "This (the failure of the defendant to call the witness to contradict the plaintiff) adds some credence to the plaintiff's claim that she made further complaints to him after 19 August 1981. However, I must also assume, from the lack of any notation in the complaints book, that any complaints which she did make were probably more in the nature of passing comments as to her difficulties, rather than serious complaints of injury such as was made on 19 August." This statement is capable of being regarded as a finding and an implicit rejection of the relevant evidence given by the plaintiff. Nonetheless, the conclusion is expressed as an assumption and is preceded by an underlying correct observation that the plaintiff's credence was supported by the defendant's failure to call a critical witness on the issue and there was, as I have said, no finding on credit or reliability. Although it is understandable that her Honour dealt with the issue in this way in the light of her determination on foreseeability the issue of reasonableness assumes critical significance once foreseeability is resolved in the plaintiff's favour. My mind has vacillated on this difficult question but in the end I have reached the conclusion that Priestley JA is correct and that Mathews J did not make the primary findings which were necessary. In all these circumstances I agree with the orders proposed by Priestley JA. 1. Judgment below set aside. 2. New trial ordered. 3. Costs of the first trial to abide the second trial. 4. Costs of the appeal of the (plaintiff) appellant to be borne by the (defendant) respondent. COUNSEL: Appellant: SJ MOTBEY Respondent: DI CASSIDY QC/S HICKEY URJ SERISIER v HAINES (Clarke JA) SOLICITORS: Appellant: RISHWORTH DODD AND MENCZEL 5 Respondent: ELEONORA G SCARPARO