Jan Moultrie v Sutherland District Trade Union Club Ltd [2001] NSWCC 54

Compensation Court of New South Wales

CITATION : Jan Moultrie v Sutherland District Trade Union Club Ltd [2001] NSWCC 54 revised - 5/09/2001 Jan Moultrie PARTIES : v Sutherland District Trade Union Club Ltd trading as The Lobster Pot Motel North Haven MATTER NUMBER(S) : 12655 of 1997 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26/02/01, 27/02/2001 DATE OF JUDGMENT: 03/07/2001

FOR APPLICANT: Mr R Goodridge instructed by Firths LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J K Trainor instructed by McCulloch & Buggy

JUDGMENT: The Claim 1. Jan Moultrie claims weekly benefits from 12 November 1997 to date, her s 60 expenses and interest, and bases her claim on three incidents. The first two occurred on 28 March 1995, and the third on 19 January 1996, though in earlier applications she had pleaded only one incident, the first one on 28 March 1995 when, she said, she had fallen down stairs at the motel. The evidence of injury in each of the three incidents was somewhat confusing, at times contradictory. However, doing the best I can, she claimed that when she fell down the stairs at the Lobster Pot Motel on 28 March 1995 she fractured her left ankle, and suffered injury to her head, right hip, neck and back, though I should say immediately that not all these allegations of injury came out at the same time. 2. Her evidence was that she had suffered a fall in the street on the same day when she had gone to the local bottle shop to purchase liquor for a client of the motel. She said that in this particular fall, she had not suffered any further injury in addition to the ones she had sustained in the earlier fall down the stairs. 3. Moultrie's further evidence was that on 19 January 1996 she had collapsed in the ironing room at the Lobster Pot and injured her right knee which later was treated by two arthroscopies, her right hip, right shoulder, neck, back and head. The Issues 4. The issues identified by the respondent were: firstly, the fact of injury both, in March 1995 at the motel and in January 1996; secondly, whether the applicant was in the course of her employment when she had sustained a fracture to her left ankle in the street on 28 March 1995. Consequently, credit was a major consideration in these proceedings. Thirdly, the respondent put into issue the applicant's incapacity, and alternatively, her incapacity arising out of any work-related injury, and the consequences of the incidents pleaded. It was conceded towards the end of proceedings by Mr Goodridge that the applicant did not rely on the provisions of s 38. Observations on the Applicant's Evidence 5. This claim proved difficult to determine. The applicant's memory was untrustworthy and unreliable. She appeared to be constructing her evidence, and at times to provide curious explanations. For example, when she was confronted by Mr Grant for the respondent with her previous prosecution for social security fraud, and after she had admitted that she had pleaded guilty and had been convicted (though she did not receive any penalty by way of periodic detention or community service), by way of explanation she said that she had informed Social Security by phone that she was being overpaid and that at the time of payment by the department she was already in employment, and despite this Social Security had not terminated her payments. Her mistake was, she said, that she had not confirmed all this in writing. She said that even though her account was being credited by Social Security for a period of twelve months or so, she had not picked up this over payment. I found it curious that a woman of her training, with her qualifications, could allow a foreign payment to be made to her account, regularly over a period of 12 months or so, without identifying it as a payment from social security which needed to be repaid. 6. I will give one further example of the applicant's tendency to provide curious explanations. When she was confronted with a claim form (Exhibit D), she said that she had not completed it, that her husband had. She agreed that she had signed it and she said that she had not read the document before signing it. She said that she did not remember where, or in what circumstances, the document had been completed. She did not remember signing it. She claimed that at the time she signed it, she had been overcome with pain, that she would have signed anything at the time. However, she could not be budged on her clear memory that she did not read it. I found this evidence curious and unconvincing. 7. Moultrie seemed to have a poor memory of events and therefore tendered to construct her evidence. She said that her present health is very poor and it was clear to me that her condition has deteriorated dramatically in recent years. Because of her poor memory and her tendency to construct evidence, because of the varying accounts which she has given of the incident which occurred, she said, at the motel on 28 March, because she seemed unable to distinguish between her clear recollection and what she probably would have done if she was able to recollect it, or between her memory and what she would probably have done in the circumstances, it seems that I should carefully examine the available documentary evidence to help establish what happened when, and what were the consequences of what happened. 8. The respondent has submitted briefly that the incident at the hotel on 28 March 1995 did not occur, that the applicant had fractured her ankle in the street on 28 March, and that this incident was not a work-related incident. In this regard, the respondent rested its case on the unreliability of the applicant since there was no witness to the first incident. (I should note that despite the applicant's evidence that the motel incident itself occurred when she was some distance away from her husband, who is now unable to give any evidence, even to corroborate post-incident events, since he has in the meantime suffered a stroke and is being cared for by his wife), and the possible witness to confirm the work dimension of the second incident was never identified. 9. Clouds gathered over the applicant's credit when Mr Nix, the milkman who attended her on the street on 28 March, gave evidence that her husband had attempted to obtain a written statement from him that his wife had been injured at the motel. Her credit was sought to be impugned further by the evidence of Mr Patrick, the bottle shop owner, and Mr Nix, who was in the bottle shop when the fall in the street had occurred. Furthermore, in general the respondent sought to persuade the Court that it should draw an inference that at the time the applicant sustained her injury in the street, she had not been employed. The respondent further submitted that the incident on 19 January 1996 had not happened, and finally, that the extent of the injuries alleged by the applicant is not reflected in any of the contemporaneous records of treatment. The Applicant's Evidence 10. Moultrie's employment record was set out in the personal resume which is Exhibit A. She is clearly a lady of extensive experience and qualifications. She had worked in several motels before she came to the Lobster Pot, with her husband to work as a managing team. She said that she was involved in reception, cooking, general cleaning, laundry, gardening and cleaning the pool, in a motel where there were 14 rooms and 6 apartments. It was a 4 star motel and the apartments were judged to be 4 1/2 stars. She said she used to begin work at 6 in the morning. The reception opened at 8 o'clock, and closed between 8.30 and 9 in the evening. She worked seven days a week, though she would have Fridays free if she was able. 11. On Tuesday 28 March 1995, Moultrie said, at about 4.30 in the afternoon, she was on her way to the kitchen to make up the breakfast orders. She said the phone had rung and a gentleman made a booking and requested that she place in his room a cask of Lambrusco wine and two wine glasses. She had done this before for this same gentleman, on two occasions. She did not know his name. He was known to her as Mr Lambrusco. 12. Before going to the local liquor store to purchase the cask, Moultrie said that she had gone up the landing to take an umbrella down, as the wind had blown up. She said she had slipped a few steps, about eight, on the first landing. As her husband was in the laundry about 250m away, she sat for a few minutes before she limped to the back gate to put the umbrella in the usual place, then she drove the one-and-a-half km to the shop, parked the car, she said, on the other side of the street and entered the shop. Her left leg was now swollen to the calf. She described it as very swollen. She said that the owner of the bottle shop was in the shop, with Mr Nix and a female assistant. She purchased the cask of wine and was halfway across the road to her car when her leg gave way and she fell heavily on the roadway. She said she had called for assistance, that Bob Nix had come out, provided a chair, and an ambulance was called. However, she did not travel in the ambulance because Mr Nix, the milk vendor for the motel who happened to be drinking in the shop with Mr Patrick, the owner, had driven her to the motel, parked on the lawn in front of the hotel where an ambulance had arrived and taken her to the hospital. 13. I turn to the evidence of Mr Patrick and Mr Nix. Patrick's Evidence 14. Mr Patrick was the manager of the North Haven Liquor Supplies and knew the applicant, though only through the business. He said that before March 1995 she used to come once or twice a week to the business to purchase liquor. He said that he had been in the shop in March 1995 (the shop not being a large one), that he was present at the cash registry at the exit door, standing behind the counter, with Mr Nix on the other side, and with someone else who was a resident from upstairs. They were talking. He said that the applicant had come in and purchased wine. He noticed nothing unusual when she walked into the shop- though she told a doctor that someone had noticed that she was looking terrible. When asked whether he agreed that the applicant had walked displaying extreme difficulty, he said that he did not remember. If she had bought a cask of wine, he would have got it himself from out of the cool room. He was in the store on his own, without any other employee. 15. A little later, when Mr Nix said to him Jan has had a fall, he said he turned and looked out the window. He saw her kneeling outside her van, at the sliding door, with the van parked in front of the shop, not on the other side of the street. He said she was down on her knee. He did not go to her assistance, though Mr Nix did. He maintained his presence at the cash register in the shop. He said that Mr Nix had used the phone to ring the ambulance. He might have handed the phone to him, but he could not remember pushing it across the counter. Mr Patrick said he had not seen Moultrie fall. There had been no chair provided for her because there was no chair anywhere in the shop. He said he had looked out the window as Mr Nix was going out of the shop (he was going to her assistance) and at that moment she had been alongside her car (and he knew her van). He said that although his wife used to work in the shop, she was not there at that time. 16. I found Mr Patrick's evidence credible. He seemed to be a very careful witness, cautious not to exaggerate, and attempting to be accurate. Nix's Evidence 17. I formed the same impression of Mr Nix's evidence. He said that he was the milk vendor in 1995 and knew both Moultrie and her husband since he used to provide dairy products to the motel. He said that in March 1995 he had been at the bottle shop at North Haven having a drink. He agreed it was a reasonably small shop and he had had his back to the wall across from the cash register. Mr Patrick had been behind the counter when Moultrie walked in front of him and between them both. He had noticed nothing unusual. He said he would have helped her if she had been limping. He remembered that she bought something, paid for it and walked between himself and Mr Patrick out towards the road. She walked across the footpath in front of the shop and then he saw her fall. He said he remembered that her Toyota Tarago had been parked in front of the shop, he believed, and that she had fallen behind her van. When he went to her assistance, he said, she had said words to the effect I've, broken my ankle. I heard it snap. He then helped her onto the footpath, went inside the shop and telephoned an ambulance. Moultrie had said words to the effect, don't call the ambulance - just take me home, so he had put her in the back of the van and driven her to the motel. 18. He said that about one week later, Bruce, the applicant's husband had approached him and that as a result, he had given him a statement which was type-written, to the effect that his wife, Jan, had fallen in the motel. Bruce Moultrie had requested this statement even though Mr Nix had not seen Jan Moultrie suffer an injury at the motel. He thought that she had told him she had fallen at the motel. He did not see the fall. Then sometime later, an insurance investigator had taken a statement from him. He said that he had withdrawn the earlier statement since that first one had been incorrect insofar as he had not seen Moultrie fall in the motel. 19. Nix said in cross-examination that another man had helped Jan Moultrie into the van. He had already sat her up, but he did not remember whether he had offered her a chair. Medical Treatment 20. Moultrie was treated in hospital for about ten days. She said that when she was in hospital, she had had problems with her leg, her low back, her hip, and terrible headaches, with extreme pain. 21. Dr Cumberland had treated her. His report is Exhibit L. The ambulance records (Exhibit R), the hospital records (Exhibit O), and Dr Cumberland's report mention nothing apart from a fractured lateral malleolus or a left ankle fracture. 22. The applicant's general practitioner, Dr Grealish, referred her to Dr Prowse, whom she saw for the first time it would seem in October 1995. She was paid compensation and returned to work in about October 1995, working 15 hours a week for approximately 8 weeks. These hours were reduced to 10 a week, which she worked for about another 10 weeks. She said her pain was unbearable - in her leg, back, hip and head. 23. On Friday 19 January 1996, Moultrie was working only 2 hours each day. She found herself folding towels in the laundry. When the table moved, she fell to the floor injuring, she said, her right knee, right hip, right shoulder, lumbar sacral spine and head. She also said that she sustained a lot of bruising. 24. On Monday 22 January 1996, Dr Grealish referred his patient to Dr Prowse, and then sometime later in August 1996, she was referred to Dr Hopcroft. I should note immediately that Dr Prowse's report of 30 January 1996 records that he was told that the ankle pain was negligible, that Moultrie had some low back pain with radiation to the right buttock. The doctor added: Also of note she had a fall in the laundry at work with some bruising around the left lateral knee some two weeks ago. 25. So Dr Prowse simply recorded a history of some bruising around the left knee. She said in her evidence that she had told him the right knee and that she had had other more serious injuries, but the above note is all he recorded. 26. Moultrie was treated in 1996 by hydrotherapy, seven days a week, to relieve back pain and to start her on a walking program. In October 1996 she was using a TENS machine which, she said, did improve her condition. This machine was used to relieve her lumbosacral spine, hip, shoulder, knees and ankle. She was also taking up to 14 Panadeine Forte a day. 27. In November 1996, she underwent a CT scan to the neck, and an MRI scan the next month, and Dr Hopcroft performed two arthroscopies on the right knee, in May 1998 and May 1999 - neither of which relieved her condition. 28. Moultrie last worked for the respondent in about April 1996 and was paid compensation to 11 November 1997 when her employment was terminated. This termination was notified by letter of 27 April 1998. She has not worked since, though her husband continued with the respondent until about August 1997. He suffered a stroke in February last year and now has unstable memory and, she said, is very cranky. Consequently, she has to do everything at home - the gardening, the housework, the cooking, the washing, as well as driving the car. 29. Moultrie has received a lot of medical attention since 1997. In March 1998, she was admitted to the Manning Base Hospital under the care of Dr Hopcroft, to undergo pelvic traction for five days. Seven days' period of traction was repeated in August 1999. 30. Moultrie complains now that she has problems walking too far because she suffers severe pain in the right hip and knee. She said that her left ankle swells sometimes. She has problems going up and down stairs, and a terrible fear of falling. On the day she gave her evidence in Port Macquarie, by 11 o'clock she had already taken 4 Panadeine. The Documentary Evidence 31. I turn now to the documentary evidence which records the history and the consequences of the incidents which occurred in which, the applicant said, she was injured. 32. Exhibit D is a claim form which records a slip injury on stairs while carrying a beach umbrella and which identifies Bruce Moultrie and Bob Nix as witnesses to the incident, though neither of them were witnesses. The document also states that the applicant had not previously suffered any similar work-related injury or condition, though it would seem from her evidence that in 1978 she had fractured her left ankle and had come under the care of Dr Shepherd. The claim form asked the applicant to identify the parts of the body which had been affected, giving as examples upper limb, lower back, and the form simply recorded left ankle. I have already dealt with the applicant's evidence relating to the completion and signing of this document. 33. Exhibit C is a record of the incident of 28 March 1995 produced on Lobster Pot Motel and Holiday Apartments letterhead. The applicant said that she had completed this document sometime after the incident, sometime shortly after the incident. This seems to be somewhat unlikely since the contents of the document appears very curious and not as a impartial record of the applicant's memory of 28 March 1995. It states, for example, under the date of 28 March 1995, that the document deals with accident at the Lobster Pot Motel and fall on the side of the road outside the Northhaven Liquor Store. It was only after quite some lapse of time, however, that Moultrie began to remember and to refer to the fall outside the liquor shop. This would seem to indicate that this document is later than the applicant would have us believe. 34. The document records that on the way down the stairs on 28 March 1995, she slipped at the top of the stairs, falling to the first landing, hurting her left leg and right hip. She states that she got up and slipped the rest of the next lot of stairs, where she sat for a short while, maybe a minute, before she limped with the umbrella and put it in the back gate of the manager's flat. She then refers to driving the car to the liquor store. She said that her leg was swollen and my lower back was hurting, and by the time she had driven to the store she was experiencing terrible pain and my leg was very swollen. 35. The document also records this statement: At no stage did I think I hurt myself on the road. But I knew the fall down the motel stairs caused my injuries, due to intense pain in my leg and hip and lower back, also my leg had started to swell, prior to arriving at the liquor store. 36. This statement seems to be so clearly argumentative and geared to act as a basis for an application for compensation that it is more likely to have come into existence sometime well after 28 March 1995. 37. Exhibit B is an undated document, again on Lobster Pot Motel letterhead, and marked for the attention of the solicitors firm Stack, and for Mr Brent Gilbert'. It is, as I say, undated and refers also to the injury of 28 March 1995. It adds: Also fell in laundry at motel Friday, 19 January. Reported Monday morning, 22 January. 38. She said that she had hurt herself and had a lot of bruising and had twisted my knee, that the physiotherapist had bound up her knee with sticking plaster and that she had developed an ulcer at the back of her knee. Moultrie added in her own handwriting that Dr Cumberland has set her leg without any pain-killing medication. This comment seems to relate to the incident of 28 March 1995. Exhibit B is a document which clearly came into existence after the applicant had made a claim, as it was sent to the FAI Workers Compensation and was also forwarded to the solicitors. 39. Exhibit R is the ambulance report dated 28 March 1995 which records a history of a fall (unspecified) and refers to an ankle injury only: 51 year old lady injured her left ankle after a fall. 40. Exhibit O is the clinical notes from the Port Macquarie Hospital for the period 28 March to 6 April 1995 and provides a history of a fall down six stairs, resulting in a swelling and pain in the left ankle. It records problems with the left ankle only and no other complaints. The patient received physio and occupational therapy. I have carefully examined the medical, hospital and the nurses notes and the other notes, and it does not seem that the applicant made any other complaints, apart from a left ankle injury which was diagnosed as a fracture of the lateral malleolus. 41. Moultrie came under the care of Dr Cumberland. His reports are Exhibit L. He refers to previous reports in a letter of May 1995, but those reports are not part of these proceedings. They may contain a history of what had happened on 28 March but I cannot determine this because the first report available to me is dated 16 May 1995, a copy of which was forwarded to Dr Grealish. There is no history of any incident in the doctor's reports, only a reference to a fracture ankle. In his report of 15 August 1995, Dr Cumberland said he reviewed Moultrie five months following the left ankle fracture. She was having good days and bad days with regard to the ankle. No other complaints were recorded. 42. Dr Grealish's reports are Exhibit M. The applicant came under his care soon after the fall in March 1995. There is a certificate dated 23 October 1995 and which refers only to reflex sympathetic dystrophy of the left ankle, and a report of 8 August 1996 from which it appears that he was asked to provide a brief medical report. I note that there is no history of injury or treatment, though he was and remains the general practitioner. He recorded only that the applicant suffered a fall at work on 28 March 1995. That, of course, could have been any one of the two falls to which she referred. I find Dr Grealish's report practically useless, though he does state that the applicant had a reflex sympathetic dystrophy and, as at August 1996, back pain, aggravation of existing mild osteoarthritis and intervertebral disc disease of the lumbosacral spine, as well as some severe anxiety and depression. She was not fit, as he could see it, for her pre-injury occupation. It might have been quite important for Dr Grealish's clinical notes to have been tendered and examined. I have not seen them. 43. The next report which comes from the Commonwealth Rehabilitation Service (Exhibit P) is dated 22 August 1995. I note that there is no report in it of any incident, though the applicant did identify areas of pain in the inner and outer borders of her foot, through the ankle, the lateral border of her calf, the thigh into her hip and lower back. This was in August 1995, a year before Dr Grealish was reporting back pain. So by August 1995, some five months after fall, the applicant was apparently suffering some back pain, although this was the first recorded complaint of it. 44. Dr Prowse's reports are Exhibit K. He began treating Moultrie in October 1995 and the reports tendered are dated 5 October, 2 November, 12 December 1995, 13 January, 20 August and 10 September 1996. The report of October 1995 contains a history of a fall down stairs at the Lobster Pot in which the patient had sustained a fracture of the left distal fibula and had been in plaster for 8 weeks under the care of Dr Cumberland. By October 1995 Moultrie was complaining to Dr Prowse of fairly diffuse pain in the left lower leg. Her leg was feeling clammy. It was discoloured, could be either hot or cold and was intermittently swollen. This, of course, was the reflex sympathetic dystrophy which was diagnosed and which has since resolved. She complained in October 1995 that she had had no problems prior to the fracture and had no other joint problems as at October 1995, apart from some recent low back pain. In October 1995 Dr Prowse diagnosed reflex sympathetic dystrophy which was complicating the fracture of the distal fibula. The applicant was significantly improved by November and able to walk without the use of crutches or a stick. In December 1995, her left ankle was settling well and she was walking without too many problems: She has had some thoracic and low back pain of about 5 or 6 weeks duration. 45. The x-rays showed some mild osteoarthritic lipping at a number of levels throughout the thoracic and lumbar spine. Dr Prowse thought that Moultrie had exacerbated low back and thoracic pain which could, he said, be related to abnormal gait, or could be a manifestation of some normal pain amplification as a lot of her features were those of fibromyalgia. 46. In his report of 30 January 1996 Dr Prowse referred again to the reflex sympathetic dystrophy complicating the fractured left ankle, although the pain in the left ankle was negligible. There was low back pain with radiation into the right buttock, and there had also been a fall which had caused some bruising to the left lateral knee. He recorded that Moultie was walking with a limp, but that her gait was otherwise good. He thought she had had a flareup of back pain, perhaps as a consequence of abnormal gait, but that too was settling with physiotherapy. By August 1996 Dr Prowse reported that there had been significant deterioration. She was complaining of Low back pain and diffuse pain in legs affecting the thighs, buttocks and on the left around the ankle proximal radiation to the hips. She was getting diffuse aching all over her body affecting neck, arms, shoulders and trapezius. She had headaches and intermittent diarrhoea and was significantly depressed. 47. He diagnosed fibromyalgia or abnormal pain amplification. In September 1996 he remarked that there was persistent generalised pain. She was nauseous and had epigastric discomfort. 48. The next doctor whom the applicant saw was Dr Bodel, on behalf of the insurance company. She saw him in May 1996. He recorded no history of a fall in the street and no history of a January 1996 fall, even though her visit was only some months after that. He only recorded an injury at work on 28 March 1996 when she was on the upper level of the motel. He said that she was returning down the stairs when she slipped, fell and tumbled down 20 stairs. She suffered an injury to the left foot and ankle, some contusion of the right hip and pain in her low back. He recorded that the applicant's major disability was her continuing back pain. 49. In his opinion section Dr Bodel wrote: The patient had mechanical back pain and had suffered a fracture in a fall which had been complicated by reflex sympathetic dystrophy which was by that stage resolved. 50. He assessed a 10 per cent permanent loss of the left leg below the knee. 51. Then the applicant came under the care of Dr Hopcroft whose reports are Exhibit E. She saw him for the first time on 19 August 1996. He recorded a history of a fall in March 1995 when it had been very wet and windy, when the applicant had slipped on stairs and had rolled down 20 steps, being caught on a small ledge and then falling further down more steps. She had caught her left ankle in the steps as she fell, landing heavily on her left hip. She had developed severe pain in her back and her left ankle, and the pain was radiating from the hip into her right buttock and knee. There is no history recorded of any fall in the street in March 1995 and no history of any fall in January 1996. He recorded that Moultrie had been advised by Dr Prouse, a rheumatologist, that she was suffering from a fibromyalgia syndrome. He noted that she had initially developed some quite marked pain in her neck but that this had resolved significantly by treatment with acupuncture. The doctor referred to x-rays and CAT scan results and traced her problems with the ankle and in the lumbosacral region to the fall of 28 March 1995, dependent always and entirely upon the applicant's history. He assessed of 25 per cent back impairment, 10 per cent right leg loss and 15 per cent left leg loss and no neck loss. 52. The applicant was seen again in November 1996 (as seen in the report of January 1997). Dr Hopcroft was investigating neck, head and lumbar sacral problems: I believe that this lady has so damaged her spine in the fall described that it is unlikely that she will return to her previous duties of motel supervisor. 53. He assessed a permanent neck impairment of 50 per cent and of the right arm of 10 per cent, in addition to the earlier readings. He noted in this report the various results in CT scan, the CT brain scan as well as the MRI of the cervical spine. 54. She was seen again in March 1997 when Dr Hopcroft described his patient as being in extreme distress and obviously unfit to continue her current work. This time he assessed a 40 per cent neck impairment. He said her almost on monthly basis. He says in his report of 28 July 1998 that throughout 1997 she had continued to suffer significant headaches, with restriction of the cervical and lumbar sacral spine, and significant right knee pain and hip pain. 55. She was seen in April 1998 when the doctor described continuing right-sided neck pain with headaches and continuing significant pain in the right knee. An x-ray of the right knee was performed on 8 April 1998 and the results are set out in his report. He described the arthroscopic examination of May 1998, and his final report dated 16 November 2000 refers to the event of March 1995: She did in fact attend a liquor store for supplies for a motel client, but was simply unable to continue to walk and collapsed on the road-way because of the pain in the ankle. This was not a fall per se, but was simply the fact that her injured ankle failed to hold her up. 56. There was still no history of any fall in January 1996. 57. Dr Hopcroft's opinion as to causation depends entirely on the history the applicant provided and he said her complaints seemed to be blossoming as time passed. 58. Then the applicant consulted a psychologist, Mr Anderson, in October 1996. She gave him a history of the fall at the motel in March 1995, complaining of a fracture of the left leg and a very sore hip. There was no history of the fall in the street, and again no history of any fall in the laundry in January 1996. 59. Mr Anderson recorded that during the applicant's medical and rehabilitation phase, she reported that she had started to suffer generalised aches and pains around the fractured site as well as in the lower back, upper back, neck and arms. At the time she attended Mr Anderson, she was suffering pain in the lower left leg, right hip, lower back, upper arms and neck, as well as headaches and episodes of depression. She exhibited to the psychologist as a woman in a great deal of genuine pain. The impression was given that she had genuine chronic pain. This pain was described as generalised aches and pains such as flu-like symptoms across her upper body. She described sensations of pain in the lower left leg as burning and aching, and a dull ache which restrict her movements of the lower and upper back. There was pain also radiating down both her arms and the back of her legs. 60. The MRI scan of December 1996 ( Exhibit N) showed: Left posterior prolapse of the C4/5 disc which might be compressing on the left C5 nerve root. There was bony compromise at the C6/7 and to a less extent, the C5/6 intervertebral foramina - left more than the right. 61. Dr Arthur then examined the applicant in January 1997. He was a consultant neurologist. His reports are Exhibit J. She complained to him that she had been suffering from right parietal headaches for the past 4 months - that is, since late 1996. She complained of a tendency for her to veer to the right side since an accident had occurred on 28 March 1995 when she broke her left leg. This is the first time such a complaint appears in the documentation. 62. In his report dated February 1998, he refers to the consultation of January 1997 when he was told that on 28 March 1995, she had slipped on the wet outside staircase of the Lobster Pot Motel. The slipping had started halfway down the upper section of the stairway and she had slithered to the half-way landing, experiencing great pain in her left ankle. She told the doctor that then she had slipped down the lower half of the stairway, fell full length, and had hit the right side of her head on the third concrete step of the lower stairway. There had been no-one about to assist her, so she had staggered/crawled to her car, got into it somehow and driven to the Northhaven bottle shop. When coming out of this shop with the wine, she had collapsed and called to the milkman on the other side of the road. Dr Arthur concluded that she had suffered a traumatic right greater occipital neuritis and some degree of concussion. He last saw Moultrie in February 1998 when she complained that her memory was now terrible. She also told him of pain in her right lower back, right hip, thigh and knee, and her right shoulder. 63. Dr Arthur attempted to explain why it might be that an interval of 18 months had occurred between the accident and the first complaint of headaches, observing that this was not at all unusual in such circumstances when a patient suffers a number of injuries at one time. He explained that the most severe of these injuries was the one that had caused the most pain and received all the attention of the patient. Other injured places do not register until the most severe pain [in this case the left ankle and right hip and leg pain] had subsided". 64. First of all, the applicant did not complain of this most severe pain in the right hip and leg. She only complained of pain in the left ankle, and it seems, on the contemporaneous evidence, that while this was treated, it was treated satisfactorily and without too many problems. 65. The next doctor who saw Moultrie was Dr Mellick, in March 1997. His reports are Exhibit 2. He recorded the fact that the applicant had fallen down stairs at the motel on 28 March 1995. There is no history recorded of any fall in the street, and again no history of a fall on January 1996. Moultrie told Dr Mellick that she had had a number of symptoms dating from the accident - pain in the left hip and low back, as well as right-sided tempero-frontal and vertical headaches. She said that she was experiencing pain (like lightening) which shot into the right frontal temporal region. A similar pain of a flashing quality was also described to be present in the back, the right hip, the left leg, associated also with low grade and constant pain. She had other symptoms in the right side of her face. 66. Dr Mellick recorded that the applicant had resumed her pre-accident employment approximately one month after the fall and had continued this work until March 1997 when she had ceased it. She said that she had ceased because she was making a lot of mistakes and was unable to concentrate. Dr Mellick, I should note, is a consultant neurologist. These particular complaints were not made to anyone else, it seems to me. He noted that the applicant was limping, favouring her left knee. She had had abnormal cervical, thoracic and lumbar contour, there was no spasm in the paraspinal muscle, and the cervical movements were full and unimpaired. He found that the limp was associated with crepitation within the left knee, secondary to osteoarthritis, and that the symptoms in the right side of the scalp, neck and face were unlikely to be of organic origin because the distribution of the sensory change argued against any organic mechanism. He thought that Moultie was exhibiting chronic pain syndrome, though there was nothing to suggest sympathetic dystrophy at the time. He observed that myofibromyalgia meant nothing more than a pain of muscle origin. 67. Dr Mellick concluded: The fracture had healed well and there was no existing evidence of any disordered gait arising as a result of the fracture. 68. Then the next doctor to see the applicant was Dr Davis (Exhibit F). He saw her in May 1998 and recorded that Moultrie had fallen down approximately 18 stairs at the motel, that the initial flight had been 8, she had then stood on the landing and slipped and again fell down a second flight of stairs striking her occiput at the time. He also recorded that unfortunately she collapsed on the roadway afterwards,. but no history of an incident in January 1996. He did, however, record a list of complaints involving headaches, constant pain in the cervical region, radiating pain into the right shoulder, constant low back pain radiating into the right lower limb, pain in the right knee and in the left ankle. He found that Moultrie had a history of falling down 2 flights of stairs in March 1995 which had occasioned injury to her occipitus as well as to her cervico-lumbar spine and fractured her distal left fibula. He thought she was suffering from aggravation and acceleration of pre-existing degenerative changes in both the cervical and lumbar regions, as well as myofascial injury and disc injury in both the cervical and lumbar region. He thought that the reflex sympathetic dystrophy had settled quite well despite some mild ongoing symptoms, that she had developed difficulties with the right knee which restricted her ambulation and which in fact were most likely related to the prolonged period of abnormal gait while suffering the reflex sympathetic dystrophy on the left side. He assessed a 20 per cent neck impairment with a 10 per cent pre-existing condition, and a 10 per cent loss of use of the left leg below the knee. 69. Then Dr Fox, a psychologist, was consulted in March 1998 (Exhibit H). He examined the applicant for a head injury. She told him that there had been periods when she could not think what she wanted to say. She was frequently at a loss for words. She tendered to forget things more quickly now and was genuinely forgetful. She believed that her memory for recent events had become substantially worse. She found it more difficult to concentrate. She had, since the accident in March 1985, become more aware of a dejavu experience. She had found herself thinking thoughts which she considered as quite strange. She had become aware of internal voices which were talking to her. She was much more aware of internal tensions and had felt a strong desire to hit someone. She had at times felt angry enough to want to throw or break something. She was conscious of anxious feelings which sometimes became panic experiences. She had become conscious of a tinnitus since the injury. She had recurring and disabling headaches which were poorly relieved by analgesics. She had been told that she had done something or gone somewhere, and had had no memory of the incident. She had experienced disturbed sensory processes such as visual images or movements on the periphery of vision, unusual numbness on parts of the skin for no reason, unpleasant taste in the mouth for no obvious reason, and a feeling of something likely touching or moving on the skin when nothing was there. 70. All these, Dr Fox said, were specific symptoms commonly identified by victims of traumatic brain injury. He thought she had suffered a significant concussion. What is strange about this is that these complaints emerge from an incident in March 1995 and were never complained of to the ambulance people or to the doctors in the hospital. They were not made aware of any head injury whatsoever. Dr Fox's conclusions depend entirely on the truthfulness of the applicant and on the fact that she had suffered a head injury in March 1995, and I am not persuaded that this was the case. 71. On balance, it seems to me probable that the applicant was working for the respondent when she went to the shop on 28 March 1995. She went there on a Tuesday, which was her normal workday, between 5 pm and 5.30 pm. It seems common sense would lead to the conclusion that normally, on that day, at that time, working in a motel situation as a manager, she would be working. She said she was working. That is the evidence, and I accept it. 72. On balance, it seems to me the applicant probably sustained an injury on the road outside the bottle shop on 28 March 1995, and not at the motel. I say this because, firstly, neither Mr Nix nor Mr Patrick noticed anything unusual as the applicant entered the bottle shop. More importantly, Mr Nix recollected that the applicant had said, when he attended her on the footpath, that she had broken her ankle and that she had heard the crack. 73. There was a clear conflict between the applicant's sworn evidence and that of Mr Nix and Mr Patrick whom I prefer since they appeared to be credible witnesses who were attempting to be careful. There was a conflict, for example, in the evidence about the provision of the chair, whether there was another person, a female, in the shop, whether the fall took place on the road, or on the footpath, or near the footpath, and whether, as the applicant said to one of the doctors, someone noticed that she was looking terrible as she was going in the shop. 74. I have also taken into consideration the applicant's refusal of an ambulance service after she had fallen in the street. This seems strange in the light of the evidence she gave of her terrible symptoms. I have taken note of the fact that the applicant's husband asked Mr Nix for a statement about where the accident had occurred. I have already made some observations about Exhibit 3 which seems a curious document which came into existence quite late in the piece. I have considered the variations in the stories given to the doctors, about how the fall took place, how many stairs were fallen down, the various complaints about symptoms which were experienced immediately after the fall. It seems that the story grew and the symptoms grew in detail the further one was removed from the incident. It further seems fantastic that the applicant would have sustained such severe symptoms in the fall down the stairs and yet have driven her car the one-and-a-half kilometres to buy a cask of wine. 75. For those reasons, on balance I have concluded that the fracture of the left ankle was sustained on the road, or near the road, on 28 March, rather than at the motel. I have concluded further that the applicant sustained a simple fracture of the left ankle with some temporary complications and this resulted in reflex sympathetic dystrophy which was resolved within months or within a year or so. Then, over the years the applicant has developed a flowering of extensive symptoms, involving the whole of the body, and I refer, for example, to Exhibit F, the report of Dr Davis. There occurred a serious and dramatic deterioration in health, which was probably not connected at all with her work. The reflex sympathetic dystrophy has now resolved, although there is some small loss of use of the left leg, and I refer to the assessments of Dr Bodel of May 1996 (10 per cent loss of use below the knee), Dr Hopcroft of August 1996 (15 per cent loss of use of the left leg above the knee), and Dr Davis in May 1998 (10 per cent loss of use below the knee). 76. As to the incident of January 1996, it seems that the first documented report of this occurs in the report of Dr Prowse of 30 January 1996. I have no doubt that an incident occurred, since it was reported, but I accept what Dr Prowse reported about it, namely that there was a bruising to the left knee. It would seem to have been a minor event which Moultrie has tried to build into something serious with lasting consequences. I do not accept her evidence in this regard. She has not persuaded me that her neck, arms, back, head and right leg and hip are in any way related to any of the incidents which I have found occurred, firstly, in the street on 28 March, and in the laundry room on 19 January. 77. I note from Exhibit Q that the probable weekly earnings but for the injury would be $500 per week, from 12 November 1997 to date and continuing. I accept this figure which was not disputed. 78. As to what the applicant would be able to do - I have no doubt she is presently incapacitated, and seriously, but that because of loss of memory (which has nothing to do with any work injury), and also because of the large range of diffuse symptoms (which again has nothing to do with the work injury), and in part, but in minor part, because of the applicant's fractured left ankle, and the 10 per cent loss. Exhibit A is evidence that she is, and remains, a highly qualified and experienced person, though now quite disabled. She may be able to work part-time as a receptionist, the manager of a motel, a computer operator or as the operator of a general store. She continues to work now looking after her husband, gardening, cooking and cleaning and, as she said, it is because she has to. She may be able to manage part-time in a restaurant. 79. It seems to me that with her present capacity she would be able to earn something in the vicinity of $350 a week. That leaves a mathematical difference of $150 a week, which I propose to diminish, in the exercise of my discretion, because of the many non-work-related symptoms and the dramatic non-work related condition the applicant now finds herself in - and this is particularly set out in the report of Dr Fox. I propose to reduce the weekly benefit to $40 a week. 80. I make the following findings and award: 81. (1) The applicant was injured on 28 March 1995 when she sustained an injury to her left ankle. 82. (2) I am not satisfied that any incident occurred, or any injury was sustained, at the motel on 28 March 1995, but that the relevant incident occurred outside the bottle shop on that date. 83. (3) The applicant was involved in an incident at work on 16 January 1996 in which she sustained a bruising to her left knee, which was of only temporary significance. 84. (4) Moultrie was partially incapacitated for work, and has been since before 11 November 1997. 85. (5) The probable weekly earnings of the applicant but for the injury, had she continued to be employed in the same or some comparable employment, is $500 per week. 86. (6) I assess the sum of $350 per week to be the average amount she is able to earn in some suitable employment, that is in the general labour market reasonably accessible to her. 87. (7) Having regard to all the circumstances I find that the difference between those two amounts should be reduced because of the applicant's non-work-related condition, and reduced to a sum of $40 per week. 88. I make an award in her favour pursuant to s 40, from 12 November 1997 to date, in the sum of $40 per week. 89. I order the respondent to pay the applicant's medical expenses relating to her left ankle. 90. I order interest to accrue on the accrued weekly benefits at 6 per cent, from a date to be agreed, that is from the date of claim. 91. Costs reserved pending argument. Mr R Goodridge instructed by Firths - the Compensation Lawyers appeared for the applicant Mr J K Trainor instructed by McCulloch & Buggy appeared for the applicant