New South Wales Supreme Court CITATION : Jones v Eagle Ford P/L [2000] NSWSC 1084 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20009/99 15/11/00 HEARING DATE(S) : 16/11/00 17/11/00 JUDGMENT DATE : 27 November 2000 PARTIES : Elviera Jones (Pl) Eagle Ford Pty Ltd trading as Thomson Automotive (Def) JUDGMENT OF : Kirby J COUNSEL : P Semmler QC/J Jobson (Pl) J G Stewart (Def) SOLICITORS : G J Sharah Henville (Pl) McCulloch & Buggy (Def) CATCHWORDS : Negligence - contributory negligence - damages - "a worst case" LEGISLATION CITED : Facts, Shops and Industries Act Workers Compensation Act 1926 CASES CITED : Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 DECISION : Ref para 121 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Monday 27 November 2000 20009/99 - ELVIERA JONES v EAGLE FORD PTY LTD t/as THOMSON AUTOMOTIVE JUDGMENT 1 HIS HONOUR: This is an action for damages by Ms Elviera Jones (the plaintiff) against her employer, Eagle Ford Pty Ltd, trading as Thomson Automotive ("Thomson Automotive") (the defendant). The action arises out of an accident at work on 16 May 1996. The Accident 2 Ms Jones began working for Thomson Automotive in February 1996, that is approximately three months before the accident. She was then about forty years old (born 17 March 1956). She was employed as a car detailer. She, with others, some of whom she supervised, prepared motor vehicles for sale. 3 The premises were at Parramatta. They included a driveway which Ms Jones described as "quite steep". The surface was made of concrete. The areas which adjoined the driveway at the top and bottom were unsealed, the surface consisting of small pebbles the size of marbles. Within days of joining Thomson Automotive, Ms Jones said to her superior, Mr Tyrell Graham (the Car Sales Manager), the following: (T.12) "A. I mentioned it to him that wouldn't it be a good idea to put concrete down the bottom and the top, a, to stop the gravel kicking up on the cars and marking them and also to make it safer for us to walk up and down the walkway. Q. And do you remember what he said, if anything, to that suggestion? A. Yes all he said was, 'Yeah, yeah, one day.'" 4 Pebbles were transferred to the ramp by both cars and pedestrian traffic. A broom was provided nearby to sweep the ramp. It was one of Ms Jones' duties to sweep from time to time, and to arrange for the young men under her supervision to do so, when they were available. 5 However, Ms Jones also had other duties. They included the cleaning and preparation of vehicles. I had the impression that the ramp would be swept when time permitted. In the meantime, pebbles would accumulate, to a greater or lesser degree, depending upon traffic. 6 On 16 May 1996, Ms Jones began work at 6.30 am. She drove a number of cars from one area to another, using the ramp. The ramp was swept about half an hour before her accident. After it had been swept, at least one car (driven by an employee, Mark) used the ramp. Ms Jones walked down the ramp. There was no hand rail. There were no cleats or undulations. It was a smooth concrete surface. She had a bottle of Windex in one hand. Suddenly, towards the bottom of the ramp, she stepped on gravel, and slipped. She said that her feet went from under her. Her left hand hit the side wall. She said she fell, landing on her backside. 7 The defendant raised a number of issues concerning the plaintiff's description of the accident. 8 First, it drew attention to an entry in the notes of Dr Leung. Dr Leung was a general practitioner, and a member of a practice which Ms Jones consulted before and after the accident. He saw Ms Jones on 19 May 1996 (that is, three days after the accident). The history he received was entirely different from that provided by the plaintiff. The entry in his notes was as follows: (Exhibit 2) "19.5.96 Acute sore back. Heavy lifting at work." 9 Secondly, the plaintiff had seen many doctors since the accident. The description of the incident giving rise to her symptoms, as reported by these doctors, varied significantly. She told a number of doctors, according to their reports, that she had slipped but not fallen. Indeed, the impression of one doctor (Dr Trevitt), who saw her soon after the injury, was that she had sustained a "minor slip". 10 Dealing with the first issue. Dr Leung was called to give evidence. He had no independent recollection of his consultation with Ms Jones on 19 May 1996, which was not surprising. It was his belief, nonetheless, having seen Ms Jones in the ensuing years, that her problems were the consequence of having slipped on a ramp at work. His report of 30 July 1999 included the following history: "Ms Jones firstly presented to our surgery on 19/5/96 with lower back pain. She alleged that she has lower back pain after a fall on 16/5/96 at work. She landed on her buttocks and since then the lower back pain slowly build up and radiated down to her right leg. Ms Jones was employed as a yard person and supervisor. She denied any pre-existing back condition before the accident." 11 Dr Leung said that the reference in his notes to "heavy lifting" could have been a mistake. Ms Jones had seen another doctor at the practice, Dr Christensen, before his consultation on 19 May. By referring to "heavy lifting", he was, he said, recording additional information, although he could not now call to mind the context. He did not believe that it was a reference to the cause of the back pain. Where heavy lifting leads to back pain, it was his practice to record the weight lifted. Yet the notes made no reference to any weight. 12 Dr Leung acknowledged, in cross examination, that the medical records of the practice contained no note of Ms Jones having seen Dr Christensen (or any doctor) before his consultation on 19 May 1996. The last entry before 19 May was on 6 May 1996. 13 Dr Christensen has since left the practice. She is thought to be overseas. However, it does seem likely that Ms Jones saw Dr Christensen, and attributed her back and leg pain to a slipping incident, such as that described. On 22 May 1996, Dr Christensen wrote a letter of referral to a specialist, Dr Trevitt. Her letter included these words: "Thank you for seeing Mrs Elviera Jones, 40 years (woman) who has had severe low back pain with paraesthesia in S1 derm of R foot since slipping and stopping herself from falling 1/52 ago. She has been on strict bed rest for 1/52 with panadeine forte and diazepan to no effect." 14 The history provided by Ms Jones to a number of doctors thereafter included the fact that she had seen Dr Christensen soon after the accident. For instance, she told Dr Mahony the following (report 28.4.97 - Exhibit 9) "She continued working, however, about 3 hours later the back pain become worse and she noticed pain in her right leg. She went home about one hour early and sought advice from Dr Christiansen the next day and was referred to Dr Trevitt." 15 Further, Ms Jones' work as a car detailer, although physical, did not involve heavy lifting. She told Dr Beard the following: (report 21.9.98 - Exhibit 9) "Mrs Jones' duties entailed picking up and delivering vehicles, detailing, doing minor repairs and at times, changing tyres. The latter would be the heaviest duty she would do." 16 I accept that Ms Jones' back pain was the consequence of a slipping incident, rather than heavy lifting. Such a finding is consistent with the history given to every doctor (apart from Dr Leung 19.5.96). The heavy lifting referred to by Dr Leung may simply have illustrated the problem which arose through having slipped on the ramp. 17 Let me move to the second issue raised by the defendant. There was variation in the history said to have been provided by Ms Jones to various doctors. Some doctors recorded that Ms Jones saved herself from falling by holding onto a tap at the end of the ramp. Others recorded that she was not certain whether she "hit the ground" (Dr Maloney 13.10.99 - Exhibit 9). Still others recorded a history of her falling, similar to that given in evidence before me. 18 The medical reports must be approached with caution. Ms Jones saw many doctors at the request of her solicitors, and the solicitors for the defendant. These doctors were usually provided with a bundle of medical reports from other doctors. There is the danger, therefore, that errors may be perpetuated in later reports. 19 A more reliable source are the reports created soon after the incident. Dr Christiansen's letter of referral (set out above) suggests to my mind that Ms Jones did not actually fall, although plainly she twisted her back. Ms Jones saw Dr Sheehan, at the request of the workers compensation insurer, on 27 June 1996. Dr Sheehan recorded the following: (Exhibit 9) "When she was asked why that happened she explained that the driveway often has loose pebbles on it. When she slipped she confirmed that she did not fall over because she was able to grab an adjacent tap with her left hand and brace herself against it and a wall." 20 The history taken by Dr Evans on 19 November 1996 was in similar terms (Exhibit 9). I think it more probable, therefore, that Ms Jones did not fall. 21 However, I do not believe very much turns on that fact. The incident she described, including twisting her back, was capable of giving rise to the symptoms which followed, as the doctors acknowledged. Ms Jones said that the accident happened very quickly. I do not see it as a matter to her discredit that she gave a slightly different version several years later, involving an actual fall. Was there Negligence? 22 The ramp was the means of access from one level to another. It was not suggested that there was a safer alternative. It was foreseeable that pebbles from the unmade surface at the top and bottom of the ramp may spill over, and be transferred onto the concrete surface of the ramp. If that were to occur, there was the risk of injury. Dr Adams, an expert whose report was tendered on behalf of the plaintiff, made the following statement, which I accept: (Exhibit B - report 9.9.98, p7) "…that rounded pebbles on a hard surface such as the concrete of the driveway will have the effect of making the surface hazardously slippery; I am quite satisfied that the presence of several rounded pebbles on that driveway surface could cause a person to suffer an uncontrolled slip. In effect, the rounded pebbles, despite being somewhat less regular in their shape than marbles or ball bearings, would have a similar effect under the foot of an unwary person stepping onto them." 23 The expert retained by the defendant, Dr Cooke, did not suggest otherwise (Exhibit 11, p5, para 4.4). The plaintiff described an incident in which a fellow employee, Mark, slipped on the ramp on pebbles before her accident. The defendant did not call Mark, nor explain his absence. Nor, indeed, did the defendant call Mr Tyrell Graham (to whom the plaintiff complained of this hazard), nor explain his absence. I accept that the complaint was made, and that Mark slipped in the way that the plaintiff described. 24 The gradient of the slope was 8 degrees to 10 degrees, compared to a maximum of 7.2 degrees permitted by Ordinance 70 under the Local Government Act. Dr Cooke described such a slope as "marginally" steeper than the requirements of the Ordinance, a conclusion challenged by Dr Adams. Dr Adams said this: (Exhibit J - report 7.11.00) "Dr Cooke's assertion that a gradient of 8 degrees to 10 degrees is only 'marginally' steeper than a 7 degree slope is rather hard to support in light of the facts that a 7 degree slope has a 12.2% gradient whereas a 10 degree slope has a 17.4% gradient. That is a difference of 42%, which could hardly be regarded as 'marginal'." 25 Dr Cooke asserted, however, that towards the foot of the slope (where the plaintiff described herself as slipping), the ramp flattened out so that it was below the required 7.2 degrees. Neither witness was called. Dr Adams, it might be noted, in his original report (9.9.98 - Exhibit B), said the ramp was "8 to 10 degrees towards the bottom of the ramp where Ms Jones slipped and fell". In a later report (7.11.00 - Exhibit J) Dr Adams appeared to suggest that, in any event, when walking down the ramp, Ms Jones would have had the momentum of the steeper slope. 26 Dr Adams identified a number of measures which he believed were reasonable, and which, had they been taken, would have prevented the accident: · First, the surface should have had sharp edged grooves at intervals of 100 mms to 150 mms, as required by the Australian Standard 1657-1992 Fixed Platforms, Walkways, Stairways and Ladders - Design, Construction and Installation. · Second, alternatively, grooves could have been cut into the concrete to create an undulating surface, which would have minimised the risk of slipping. · Third, the area at the top and the bottom could have been sealed, so that pebbles would not be transferred onto the steep ramp. 27 Dr Adams made other suggestions besides. The plaintiff also relied upon the absence of a hand rail which, had it been provided, Ms Jones would have used. 28 Dr Cooke, in his report, dealt with some only of these suggestions. He thought that pebbles may accumulate in the grooves, and may be hazardous if the first suggestion of Dr Adams were adopted. He thought Ms Jones should have been walking more defensively, and should have been alert to the hazard. 29 I prefer the evidence of Dr Adams. There were measures which the defendant could have taken which were reasonable, and which would have minimised the risk of injury. There was, I believe, a failure to take reasonable care. 30 The areas adjacent to the ramp should have been paved, or at least an apron paved, so as to minimise the risk of stones being transported onto the ramp. A hand rail, even on one side, should have been provided. 31 Moreover, the defendants were a factory, and subject to the obligations imposed by s34 and s40 of the Factories, Shops and Industries Act (to provide and maintain passages, and a safe means of access to all places at which its employees are required to work). I believe that there was, in the circumstances, a breach of each of these obligations. Contributory Negligence 32 Did the plaintiff fail to take reasonable care for her own safety? Ms Jones, of course, knew that the ramp was steep. She knew that there was no hand rail. She knew that there was the danger of pebbles accumulating on the concrete surface. However, I do not believe that the defendant has established a failure on her part to take reasonable care. She said, and I accept, that she was proceeding cautiously. The pebbles were small. They were brown or grey. Although Dr Cooke, in his report, asserted that they were easily seen, I doubt that this was so. The photographs show the ramp is in shadows. Ms Jones was walking towards the light. She said that she was looking straight ahead. I do not believe that she is to be criticised for not having studied the ground in front of her, as she negotiated the steep surface. Introduction to Damages 33 The plaintiff gave evidence seated in a wheelchair. It is her case that she sustained injuries that have put her in that wheelchair. She is, moreover, on her case, likely to remain in a wheelchair for the rest of her life. 34 The defendant asserted that the plaintiff is a fraud. She is well able to walk. Indeed, she was filmed walking on 2 March 1999 outside her home. According to the defendant, that film, unfortunately, has been lost. Nonetheless, still photographs, taken from the film, remain. The photographs, according to the defendant, clearly depict the plaintiff. 35 The plaintiff, when confronted with those photographs, denied that she was the person depicted. It was someone else altogether. It may have been a nurse who attended upon her. 36 The resolution of this issue will, I believe, be assisted by a description of the course of treatment since 1996. The Course of Treatment 37 Dr Christiansen, as mentioned, referred Ms Jones to Dr Trevitt, an orthopaedic surgeon. Ms Jones saw Dr Trevitt on 24 May 1996. She complained of back pain and pain in her right leg, which Dr Trevitt described as "right sciatic pain" (Exhibit 9 - report 12.8.96). On 27 May 1996, Ms Jones was admitted to the Auburn District Hospital for continuous traction. She remained in hospital until 14 June 1996. She said that upon her discharge she felt a little better. She was, at this time, able to walk. She was given analgesic medication and physiotherapy. Dr Trevitt noted some muscle wasting in the right lower limb. He thought Ms Jones' presentation, and the clinical findings, typical of "acute lumber disc lesion", which he diagnosed. Dr Trevitt advised against surgery. 38 Ms Jones, however, continued to suffer back and leg pain. Her local doctor referred her to Dr Wong. Dr Wong twice performed percutaneous myopathy, which involves small incisions in the back. She was also given injections. However, she continued to experience severe pain. 39 On 5 January 1997, Ms Jones attended Westmead Hospital complaining of chronic back pain. She was referred to Dr Loefler on 28 January 1997. Dr Loefler described her as walking with "a marked antalgic gait". Both knee and ankle jerks were absent. Dr Loefler thought she may be suffering from "neurogenic pain". However, having viewed the x-ray findings and MRI, Dr Loefler advised against surgery. 40 On 24 March 1997, Dr Hazan performed a facet joint blockade. Dr Leung, meanwhile, referred Ms Jones to Dr Graham Mahony. Ms Jones saw Dr Mahony on 28 April 1997. He noted that the right ankle jerk was absent, and there was reduced sensation on the outer aspect of the right lower leg. He believed that she had a lumbar disc lesion, with nerve root irritation affecting the right lower limb. Dr Mahony advised surgery. 41 On 14 May 1997, an electromyograph investigation was undertaken. The result was as follows: (Exhibit A - Dr Mahony, 28.4.97) "The F wave abnormalities are consistent with mild pathology affecting the S1 segment on the right." 42 At first Ms Jones resisted the suggestion of surgery. After a number of months, however, she agreed. She did so, according to her evidence, because the pain had become unbearable. Dr Mahony performed a spinal fusion in two stages. The first operation took place on 10 July 1997. Dr Mahony's findings on operation were as follows: (Exhibit 9 - report 24.7.97) "I explored the lumbosacral spine by means of the right paraspinal approach. I decompressed the lumbosacral area by removing the lamina to the facet and at operation there was significant spinal stenosis at the level with numerous adhesion formations, particularly surrounding the S1 nerve root." 43 Ms Jones continued to experience pain. She was admitted to the Bankstown Private Hospital on 1 August 1997. She was injected with cortisone under local anaesthetic. She remained in hospital having bed rest until 10 August 1997. 44 The second stage of the fusion was performed by Dr Mahony on 24 September 1997. Ms Jones, however, said that she felt worse, instead of better. She continued to receive strong analgesic medication, including occasional pethidine and morphine injections. 45 On 18 December 1997, Dr Mahony undertook a third operation. Ms Jones was in hospital for seven days. Pieces of bone were removed from the back. However, the pain persisted. On 8 January 1997, Dr Mahony arranged for Ms Jones to be admitted to the Masonic Hospital. She continued to complain of back and leg pain. She was discharged from that hospital on 22 January 1998, and immediately admitted to the Alwyn Rehabilitation Centre. She remained at the Centre for some time. On 3 February 1998, a CT scan was undertaken. There was no evidence of disc protrusion. However, the report included the following: (Exhibit E - report 10.2.98) "There is scarring on the right side of the thecal sac at the L5-S1 level probably due to previous surgery. There is some thickening of the right S1 nerve root with displacement of the nerve root here most likely due to peri-neural fibrosis. No focal disc protrusions are seen." 46 On 10 February 1998, an MRI was performed. The report was in these terms: (Exhibit E - report 10.2.98) "The lumbar intervertebral discs are of normal height and appropriate hydration aside from some minor desiccation in the L4/5 disc. There is some soft tissue associated with the right S1 nerve root sleeve that shows enhancement in keeping with post operative change. The right S1 nerve root sleeve appears adherent to the deep surface of the operative bed. There is no compressive nerve root lesion or disc protrusion identified." 47 Ms Jones' treating doctor at this time, Dr Kuo, commented upon this report in these terms: (Exhibit 9 - report 12.2.98) "Her MRI scan shows signal changes consistent with peri-neural fibrosis and possible tethering of the right S1 nerve root." 48 Dr Kuo made an examination. His findings on examination included: "She was unable to bear weight through the right leg … Sensation along the right L5 dermatome was diminished and her right ankle jerk was absent." 49 Dr Kuo thought the clinical signs suggested nerve root scarring and fibrosis. 50 By about March 1998, the plaintiff had abandoned crutches and a walking frame. She preferred a wheelchair. In an attempt to reduce her pain, and permit greater mobility, Ms Jones was admitted to the Prince of Wales Hospital on 23 March 1998. Dr Vonau then performed an operation on 27 March 1998, inserting a medtronic epidural stimulator by means of a mid-thoracic laminotomy. A second procedure was performed a few days later connecting the stimulator. Ms Jones was discharged from hospital on 30 March 1998. 51 Unfortunately the wound became infected. The plaintiff was again admitted to the Prince of Wales Hospital on 16 April 1998, where she remained until 30 April 1998. Intravenous antibiotics were administered. Ms Jones was again discharged to the Alwyn Rehabilitation Centre. She was ultimately discharged from that centre on 5 May 1998. 52 On 14 May 1998, Ms Jones was referred to Dr Needham, at the Sydney Pain Management Centre. Dr Needham confirmed that the plaintiff should continue with her medication, which included Endome, a strong analgesic, as well as Mogadon. Dr Needham noted "ongoing feelings of anger and frustration" (report 19.5.98 - Exhibit 9). The plaintiff gave evidence, which I accept, of a period of severe depression, where she attempted suicide. 53 At the time of the accident the plaintiff rented a unit at Auburn. It was no longer suitable once she was in a wheelchair. She was provided with a Housing Commission unit (which she rented) at Penrith. Periodically, she attended the Nepean District Hospital to obtain injections of Pethadine (2.11.98 and 25.1.99). Ms Jones was admitted to that hospital on 8 February 1999, suffering migraine and an epileptic seizure (she having had both complaints well before the accident). She was also suffering from back pain. She was discharged from that hospital on 10 February 1999. 54 By March 1999, urinary retention had become an acute problem, especially when the plaintiff was suffering from severe back pain. On 6 March 1999, she attended the Nepean Hospital complaining of back pain and urinary retention. She went to the same hospital with the same complaints on 30 March 1999 and 9 April 1999. On 16 April 1999 she was admitted to that hospital. Dr Ferguson (a urological surgeon) inserted a supra-pubic catheter under general anaesthetic. A scystoscopy was performed, which revealed an inflamed bladder. 55 Ms Jones was readmitted to the Nepean District Hospital on 18 April 1999 with a recurrent urinary tract infection. She remained in hospital until 22 April 1999. She was again admitted to that hospital with the same complaint on 6 May 1999. She was discharged on 14 May 1999. The catheter was removed. Since that time the plaintiff has been taught self catheterisation, which she performs through a straw. However, she has found it most uncomfortable because of back pain. She prefers to wear sanitary pads. 56 On 24 and 26 November 1999, the plaintiff again attended the Nepean District Hospital, complaining of chronic back pain. In February 2000, she saw Dr Gerard for counselling, as well as Dr Sunderaj, a specialist in rehabilitation and pain management. Antidepressant medication was prescribed. The plaintiff continues to have morphine from time to time when the back pain is severe. 57 On 25 March 2000, the plaintiff was admitted to the Nepean District Hospital with tendonitis and severe left shoulder pain. It was suggested that the manual wheelchair was the cause. She was discharged on 29 March 2000. 58 Ms Jones was again admitted to the Nepean District Hospital on 12 May 2000. She was diagnosed as suffering from chronic pain syndrome. She was discharged on 19 May 2000. 59 Since December 1999, the plaintiff has spent much of her time at the flat of Mr Steve Rose. Mr Rose is himself disabled, having suffered three strokes. He only has the use of one arm, and uses an electric wheelchair. Ms Jones described him as her fiance, although they have no plans for marriage. She has continued to maintain her flat (where she pays rent). She resisted the suggestion that she was living with Mr Rose, although she has spent an increasing proportion of her time at his home. Specialist Comment Upon the Plaintiff 60 The plaintiff has been seen by many doctors, both at the request of her own solicitors, and those of the defendant. She clearly presents a puzzle. All doctors appear to share the view that she was unwise to undergo back surgery. All agree that it has made her worse, rather than better. Most see some organic basis for her complaints of pain. Many reports identify objective signs of disability (back spasm, an absence of ankle jerks, some reports of wasting). The MRI and CT scans suggest some interference with the S1 nerve root. However, all doctors acknowledge that the organic signs cannot by themselves explain why Ms Jones is now in a wheelchair. Her organic disabilities should not prevent her walking. Her inability to do so, therefore, must have some other explanation. 61 All doctors, with one exception, see the explanation as functional overlay, or a response to chronic pain syndrome. The exception is Dr Matheson. He formed the following view after his examination of the plaintiff in August 1999: (Exhibit 9 - report 26.8.99) "Miss Jones had a fall at work which did not produce any pain at the time at all. She then went on to complain of back pain and right leg pain which was non dermatomal and has remained non dermatomal. There was no evidence in her investigations that there was any pathology within her back. Thus her initial injury was trivial and recovered and did not lead to the need for surgery. There is therefore in my view no work related disability here whatsoever. As a consequence of Miss Jones' unreasonable complaints she has gone on to a series of operations none of which have helped her. She now remains in the situation where she has substance abuse from taking Opiates. She still has faked features as far as her examination is concerned. She is not a true witness of her symptoms. However with her surgery she has some disability, but the disability does not involve her being wheelchair bound, that is a voluntary matter for her and she is quite capable of walking and functioning without a wheelchair. In fact I suspect even at this stage she has little disability." 62 Dr Matheson again saw Ms Jones on 20 October 2000. The consultation was brief. However, he remained of the same view. He said this: "I still remain of the view that this is a non-organic disorder. She has made unreasonable complaints and this had led to surgery which has been unhelpful. There is nothing in her back nor her surgery for that matter which would make her wheelchair-bound. The signs she shows are faked such as her motor loss and right leg sensory loss. There is no evidence that she sustained an injury at work and no reason for her to be in this situation as the result of her employment. This is simply a contrived disorder. Her unreasonable complaints have led to surgery which was not indicated. Her need for medication is on the basis of substance abuse and not pain." 63 I should briefly refer to those who take a different view. Professor Lance (report 16.3.99 - Exhibit A) said this: "Miss Jones suffered a shearing strain of her lumbosacral spine in her fall of 15.5.96. The pain of which she complains initially radiating down to the outer part of her right ankle indicates irritation of the 5th lumbar root on the right side. She has since had a course of continuing pain in spite of various operations and the implantation of a spinal cord stimulator. She presents now with a chronic pain syndrome with severity of symptoms exceeding that which that can readily be explained by her physical signs and MRI." 64 Dr Searle, qualified by the plaintiff, said this: (Exhibit A - report 23.6.98) "She now has a very severe degree of residual disability as a result of that fall and the subsequent operations. She is permanently unfit for all forms of work." 65 Dr Searle did not believe the position would change. Dr Bleasel, a neurosurgeon, formed a similar view. He said this: (Exhibit A - report 25.11.99) "CT scan of 1998 and MRI of 1998 show a great deal of scar tissue at the L5-S1 level. There is no indication that surgical removal of this scar tissue would help her. I believe she has to face a wheelchair life and whether or not she will be able to receive some benefit from a Pain Clinic, such as Royal North Shore Hospital, as suggested by Dr Malcolm Dent, I do not think that any major improvement can be expected." 66 Dr Malcolm Dent, a psychiatrist, formed the view that the plaintiff was suffering from chronic pain disorder. He offered the following opinion: (Exhibit A - report 7.7.99) " Chronic Pain Disorder; this by definition is neither feigned nor malingered, by definition it has or may have had a discrete physical basis to it; it may be entirely of psychological features rather as the now evident cause of pain, but it is a genuine mental disorder under the DSM IV category and causes significant impairment in all areas of life; the DSM IV also allows us the category of Chronic Pain Disorder , but of one with both psychological and physical features. In her case there is similar clear and definite evidence of a significant physical causation of this, including her fall and now complications from necessary surgery." 67 The view of specialists nominated by the defendant (apart from Dr Matheson) are not remarkably different. Dr Beard, a general surgeon, however, said this: (Exhibit 9 - report 21.9.98) "I consider that with good motivation and determination and a self rehabilitation programme and exercises that she can improve and would not need to be confined to a wheelchair." 68 Dr Bodel, orthopaedic surgeon, provided the following opinion: (Exhibit 9 - 2.2.99) "The patient clearly does have significant disability, however, because of the surgery which has been undertaken in response to the original disc pathology. I am surprised clinically that this patient is wheelchair bound. She may have some persisting giving way in the right knee which makes it prudent for her to be basically in a wheelchair but there is no significant degree of wasting which would explain why her right leg is so unstable." 69 Associate Professor Jones, a specialist in rehabilitative medicine, came to the following view (Exhibit 9 - report 23.2.00) "Ms Jones might improve is her general feeling of well-being improves, but otherwise she seems to have adopted a life of wheelchair ambulation, and a persona of a paraplegic. Her presentation is not in my opinion fully organically derived, and there is a substantial psychological element, the degree of which could not be determined by this referee as Ms Jones did not agree to a full examination." 70 Dr John Maloney (Exhibit 9 - report 13.10.99) formed the view that there was a degree of embellishment by Ms Jones in recounting her symptoms. He said this: "There exists double pathology in her presentation with (a) an organic nature in relation to her lumbo-sacral spine where she has undergone fusion between L5 and S1 and (b) what appears to me to be a severe psychosomatic disorder resulting from the accident and its subsequent management." 71 He nonetheless thought that she was totally unemployable, and likely to remain so. 72 Dr Shand, psychiatrist, saw Ms Jones twice. On 5.11.99 he said this: (Exhibit 9) "I obtained much the same results of physical examination as did Professor Lance. I doubt that more psychiatric assessment and treatment will achieve much. The history does not now support clinical depression. I must say that this patient's admission that she is confined to a wheelchair because of continuing pain, rather than paraplegia does point to the likely significance of psychological factors causing this overlay …" 73 More recently, Dr Shand, stated his view in these terms: (Exhibit 9 - report 30.10.00) "I consider it probable that her continuing pain has led to a functional overlay. Nevertheless, her symptoms are incapacitating and the prognosis for improvement is poor. In other words, he (referring to Dr James Lance) considered that the 'functional disorder' was superimposed upon physical disorder. He concluded that 'Nevertheless, her symptoms are incapacitating and the prognosis for improvement is poor.'" Investigation by the Defendant 74 The defendant's assertion that the plaintiff was faking her disability is based upon three matters: · First, there is no organic reason why Ms Jones should not walk. The diagnosis of functional overlay, or chronic pain syndrome, is dependant largely upon her complaints of pain and disablement. · Second, Ms Jones has been seen walking by an investigator, Mr Ritchie, on 2 March 1999. · Third, Mr Ritchie took a video from which still photographs are available, which show the plaintiff freely walking. 75 I will pass over the first matter for the moment, and turn to the evidence of Mr Ritchie, and the photographs taken from the video which he took. Mr Ritchie was retained on behalf of the insurer to carry out observations of Ms Jones. He did so from a vehicle. He took up a position outside her home, and made observations between 6.00 am and 2.00 pm on three days (28 February 1999, 1 and 2 March 1999). He completed field notes, which he then submitted to Mr Andrews, the person who retained him. 76 Mr Ritchie saw nothing of interest the first day. He described a woman arriving at the premises, and leaving, who was not the plaintiff. The plaintiff was not sighted. On the second day, 1 March 1999, Mr Ritchie said he went to the front door of Ms Jones' home. She answered the door, seated in a wheelchair. He had a conversation with her which lasted approximately thirty seconds. He asked whether she was Ms Jones, and she affirmed that she was. He asked her whether she was prepared to participate in a survey, and she said that she would not. He then left. She was not seen again that day. 77 However, the next day Mr Ritchie said that he saw Ms Jones emerge from her home. He recognised her as the same woman he had met the day before. He watched her walk along a street to a side street, and back again. He alighted from his car and filmed her walking. She was ninety metres away at one point, and thirty metres away at another. He could see her clearly through the lens. She did not limp. She appeared to walk freely. He exposed three minutes of film. He ceased filming as she returned home, because of rain. 78 Mr Ritchie said that the completed hand written field notes were sent to Mr Andrews, together with the video. Mr Andrews arranged for the notes to be typed, and added to a report of 12 March 1999, which was then sent to the insurer. The report incorporated still photographs taken from the video film. Mr Andrews was called to give evidence. He said that he had since made a search for the video. It could not be located. The field notes of Mr Ritchie were thrown out after they had been typed. 79 Mr Ritchie's evidence was unsatisfactory in a number of respects. If the photographs were a good likeness of the plaintiff (Exhibits 3, 4 and 5), such that one could say that it was obviously her, then Mr Ritchie's evidence of identification may be relatively unimportant. The photographs would then speak for themselves. However, to my eye, the photographs are not a good likeness. The plaintiff was observed on another occasion, somewhat earlier. Still photographs were taken (Exhibit 12). One can immediately see from those photographs that it is the plaintiff. The still photographs taken from the video, however, appear to be of a younger woman. That woman resembles the plaintiff in some respects. However, the face shape in the photographs looks to me to be rather different from that of the plaintiff. The hair length shown in the photographs also appears to be longer. Indeed, Mr Ritchie was asked to examine a photograph taken of the plaintiff three months earlier (in December 1998) by an occupational therapist. He acknowledged that, at that time, the plaintiff's hair appeared to be shorter. The plaintiff was a woman said to be 5'7" in height. It is difficult to tell, but the woman in the photographs (Exhibit 5) appears to be somewhat shorter. The plaintiff denied that she was the person in the photographs. She said that she did not own clothes similar to those worn by the woman in the photograph. 80 The defendant pointed to two matters in the photographs which were said to demonstrate that the woman depicted was the plaintiff. First, the sunglasses worn by the woman were the same as, or similar to, a pair the plaintiff had borrowed from a friend. Secondly, the woman in the photograph was wearing a bangle or watch on her left arm. It was similar to that worn by the plaintiff, and perhaps more remarkably, was worn high up on the left arm, in a position similar to that used by the plaintiff for her watch. 81 However, this notwithstanding, I am left far from convinced that the photographs do, indeed, depict the plaintiff. In saying that I am conscious that it is the plaintiff who ultimately bears the onus of satisfying me that she is disabled, as she claims. 82 Turning to the evidence of Mr Ritchie, the transcription of his daily activities sheet for the second day (1 March 1999), where he claimed to have spoken to Ms Jones, made no reference to that identification. When asked about these notes, Mr Ritchie simply said that he was not responsible for the transcription. A mistake had clearly been made. However, the terms of the transcription do not suggest that a typist had carelessly left out a line or two from his report. His daily report for 1 March 1999 was in these terms: (Exhibit F, p14) "6 a.m. Commence observations2/2 Anvil Place, Jamieson Town. Windows and doors shut, blinds down. 8.10 a.m. The woman from Unit 1 takes the subject's wheelie bin in from the street. 12.05 p.m. Heavy rain is falling. We walk past the residence. No movement is observed. 2 p.m. Subject has not been sighted. Observations terminated." 83 I entertain real doubt that Mr Ritchie identified Ms Jones as he claimed. Evidence which Suggests the Plaintiff is Disabled 84 Against that evidence must be placed the considerable body of evidence which suggests that Ms Jones is genuine. · First, Ms Jones gave evidence of her pain, and disabilities. She appeared to be straightforward, and honest. She was not shaken in cross examination. · Secondly, Ms Jones has undergone a number of serious operations. She has been hospitalised for approximately 175 days since 1996. · Thirdly, Ms Jones has been assessed by a considerable number of doctors. Various diagnoses have been offered. All acknowledged a functional element. Only one, Dr Matheson, believed that Ms Jones was "faking". Some believed that there was some embellishment. · Fourthly, Ms Jones separated from her husband before the accident, and has since divorced. She has chosen, as her fiance, a person who is grossly disabled. He has an electric wheelchair, a catheter, and requires bowel care. He has the use of one arm. She spends much of her time in his house, in her wheelchair. · Fifthly, persons who have provided assistance to Ms Jones described her situation. She appeared to be in pain. When she fell, she appeared not to be able to get off the floor. She failed to notice that she was leaking urine. The defendant's hypothesis requires one to presuppose that Ms Jones had fooled these people, as well as her fiance, Mr Rose. That would seem unlikely. · Sixthly, the complaints of tendonitis and severe shoulder pain (for which Ms Jones received hospital treatment in March 2000), furnish some corroboration of her assertion that she relies for her mobility upon the wheelchair. 85 Before stating my view, I should perhaps refer to the evidence of Ms Annette Masters. Ms Masters is a neighbour of Mr Rose. She has provided assistance to Ms Jones since the beginning of 2000. She spends a good deal of her week in the unit occupied by Ms Jones and Mr Rose. She is in a position to make a judgment on the genuineness of the plaintiff's complaints. I accept her evidence. She said this: (T.120) "Q. And on some days is she in, as it appears to be, quite severe pain? A. Yes. Q. How do you reach that conclusion? A. You can tell with the pain, the look in her face, the tears. You try to move her to get her more comfortable on the bed, she screams. She has actually screamed at me, 'don't touch me' or 'take it slowly'. You can see it in her face. Q. How long has bed wetting been a problem that you have noticed with her? A. It has probably increased over the last few months and it just seems the pain is so intense, that is when she losses bladder control. Sometimes she doesn't know that it has happened. Q. Why do you say that? A. Because I have changed the pad on her once before and she has still been actually wetting while I have changed the pad and she hasn't known, she thought she had finished. Q. There are occasions she is not aware of the fact that she is urinating? A. That is right." 86 The allegations made by the defendant (that the plaintiff is a fraud, well able to walk), are plainly serious accusations. The plaintiff has been paid worker's compensation since the accident. The payments continued after the supposed discovery of the plaintiff walking on 2 March 1999. The defendant knew six to twelve months ago that the video was missing. I find it extraordinary, in these circumstances (if it be the fact), that follow up observations of the plaintiff were not made. Certainly, I have been provided with no other, or better, material than that which I have described. 87 In these circumstances, the plaintiff has persuaded me, on the balance of probabilities, that she is genuine. I prefer the evidence of those doctors who have diagnosed an organic condition combined with a functional overlay (or, perhaps, chronic pain syndrome), over the evidence of Dr Matheson. I accept the following evidence given by Dr Bleasel, which I believe applies to the plaintiff: (T.157) "Well people can be demolished by chronic pain and there is always that difference in stoicism between one person to another, but with chronic pain people do crumble." 88 I accept, as a matter of probability, that the plaintiff does experience severe pain, and needs a wheelchair. Some improvement may follow the end of litigation. However, it is not likely to be significant. I believe it probable that the plaintiff will require a wheelchair in the future. She will also require her present regime of medication, and will experience the urinary problems that she has described. 89 Upon this basis, I approach the quantification of damages. Damages for Non-Economic Loss 90 Damages for non-economic loss must be assessed in accordance with s151G of the Workers Compensation Act 1926. A statutory maximum is set ($220,100). The damages awarded must be "a proportion, determined according to the severity of the non-economic loss", bearing in mind that the maximum is only to be awarded in "a most extreme case" (s151G(3)). 91 Here, I believe, the plaintiff should be accepted as "a most extreme case" (cf Southgate v Waterford (1990) 21 NSWLR 427; Dell v Dalton (1991) 23 NSWLR 528). The plaintiff is in a wheelchair, and likely to remain so. She suffers significant urinary problems, and some constipation. In a number of respects she is much better off than a paraplegic. In other respects, she is worse off. She experiences chronic pain. She has suffered bouts of severe depression, and has attempted suicide. She misses keenly her "womanhood", meaning her ability to enjoy a normal sexual life. 92 She was, before this accident, very much a physical person. She enjoyed dancing and ten pin bowling. Her ability to engage in physical activity has been significantly impaired. The appropriate amount, in my view, is the statutory maximum, namely, $220,100. No interest is payable on that amount (s151M(3)). Past Economic Loss 93 The contest between the plaintiff and the defendant on this issue turns largely upon an acceptance (or non-acceptance) of the plaintiff's assertion that she is disabled and confined to a wheelchair. Having resolved that issue in favour of the plaintiff, it is appropriate to find (as most medical reports suggest), that Ms Jones has been totally incapacitated for work since the date of injury. 94 Schedules of damages have been prepared by both parties. On the issue of past economic loss, the difference between the calculations made by the defendant, and those submitted by the plaintiff, is relatively minor. The plaintiff's calculation was based upon an actuarial report of William Mercer of 13 November 2000 (prepared by Gillian Hotz, actuary). The average net loss, according to this report, was $454.88 per week over the period. The defendant, on the other hand, assumed a net loss of $425 net per week. However, I believe the figure selected by the plaintiff's actuary is appropriate. It is based upon pre-injury earnings. Accordingly, the amount awarded for past loss is $106,703. 95 The Fox v Wood component could not be agreed. The parties need to further discuss the issue after appropriate records had been produced. It was suggested that I simply include a Fox v Wood component, to be agreed, which I do. Future Economic Loss 96 For the reasons stated, I am persuaded that, in all probability, the plaintiff will need in the future to rely upon a wheelchair. Realistically, she should be regarded as having no residual earning capacity. She is a person of limited education (having left school before she was fifteen, after completing first form). She has since undertaken a TAFE typing course, and has some familiarity with computers. However, I believe it highly improbable that she will obtain work. 97 Two issues arise which require resolution: · First, when would the plaintiff have retired had she not been injured? · Second, what discount should be made for vicissitudes? 98 The defendant suggested that the plaintiff would have retired at the age of sixty years. Women qualify for the pension at that age, and retirement is common. However, the plaintiff suggested that she would have continued working to the age of sixty-five years. I am inclined to accept the plaintiff's assertion. Ms Jones had a good work record. She had, since her early twenties, worked for a number of employers, almost without a break. Ms Jones said, and I accept, that she liked work. She was single, and occasionally worked two and sometimes three jobs. 99 Turning to the issue of vicissitudes, the plaintiff suggested the conventional discount of 15%. I believe, however, a more substantial discount is appropriate, namely 25%. Before her injury, the plaintiff suffered a number of serious illnesses. She had epilepsy as a child, and migraine. Both have returned in later life, associated with her pain. She had a hysterectomy at the age of twenty-three. She had a prolapsed bladder at the age of twenty-five. She experienced carpel tunnel syndrome, requiring an operation. She has suffered from asthma. Since her early twenties she has had systemic lupus erythemafosus, an immune system problem, that has made her vulnerable to infection. 100 She was, moreover, in the habit of swapping jobs every eighteen months or so. Her work was physical. She may have found it more difficult, as she got older, to obtain such work. 101 Incidentally, it was suggested that Ms Jones had previously suffered from sciatica. She denied that suggestion. The suggestion arose from the following entry in the records of Dr Trevitt's practice (although apparently not in the hand writing of Dr Trevitt). "13.6.96 - Her sciatic symptoms have been recurrent for some time but the present episode followed an incident at work when she slipped and jarred herself as she saved herself from falling." 102 No other medical report makes any reference to a history of sciatica. Significantly, Dr Leung, her local doctor, well familiar with her many ailments, did not believe she had previous back pain (Exhibit A - report 30.7.99). The entry in Dr Trevitt's notes is itself ambiguous. It does not define the time during which Ms Jones experienced sciatica. It is capable of being read as referring to the interval between the accident and that consultation (13.6.96). I accept, on balance, that Ms Jones had no pre-existing back condition or leg pain. 103 Returning to the issue of future loss of earnings, the comparable earnings were calculated as $549 net per week. Applying the 5% discount rate (s151J), I calculate the plaintiff's future loss of earnings as $325,961 (upon the basis of a retiring age of sixty-five and a discount for vicissitudes of 25%). Future Superannuation Entitlement 104 It was accepted by the defendant that the award should include an allowance for loss of superannuation benefits, equivalent to 9% of gross earnings (past and future). The calculations provided by the parties presuppose (in the case of the plaintiff) a different discount rate to that which I believe appropriate (15% cf 25%). This item should be recalculated using the formula identified, and incorporating a 25% discount for vicissitudes. Once recalculated, I will include that item in the award. Past Care 105 The plaintiff described her daily routine. There are certain tasks that she can perform (such as cooking). There are others where she requires assistance. That assistance was provided by her family after the accident. More recently, since she began spending time with her fiance, Mr Steve Rose (December 1999), that assistance has been provided by a neighbour, Ms Annette Masters. 106 The plaintiff's son, her former husband, and Ms Masters gave evidence. They described what they each did for the plaintiff. They provided an estimate of the time they spent providing assistance. I accept that each was attempting to give an honest account of the services they had performed. However, in the nature of things, it is difficult to form an estimate. The plaintiff's requirements are, to a degree, irregular. The time they each spent varied from day to day. The period which they were describing extended over years, in the case of family members, and over a period in excess of a year in the case of Ms Masters. Each is a friend of the plaintiff. Each is concerned about her welfare. Much of the time spent was in the nature of social interaction, rather than performing specific tasks. Such interaction was unquestionably valuable to the plaintiff as a distraction from her pain. 107 I believe, however, that I should discount significantly the estimates provided by each of these witnesses as to the gratuitous services which they provided to the plaintiff. The appropriate measure, in my view, emerges from the reports of the occupational therapists who have assessed Ms Jones. Ms Jones was separately assessed by an occupational therapist retained by her solicitors, and by the solicitors for the defendant. The estimate of the time required to deal with her needs, furnished by Ms Trikeriotis, retained by the defendant, was 12 hours 40 minutes per week. Ms Dinley, retained by the plaintiff's solicitors, endorsed a regime which provided 18.5 hours per week. I prefer the latter estimate. The descriptions given by the various witnesses as to the needs of Ms Jones, especially her more recent needs (since she developed severe urinary problems), suggest, to my mind, that 12 hours 40 minutes would not be enough. 108 The appropriate amount for past care, therefore, is $39,888 based upon average weekly earnings (s151K). No interest is payable (s151M). Future Care 109 The needs of the plaintiff are likely to continue for the reasons given, and require at least the same level of care for the rest of her life. The appropriate amount, upon that basis, has been calculated to be $384,864. Again, no interest is payable (s151K and s151M). Miscellaneous Items 110 There are a number of items which should be included in the plaintiff's award, which are relatively uncontroversial. They are: · Out of pocket expenses - $156,838.47 (agreed). · Future pharmaceutical expenses which, based upon the plaintiff's present regime of prescribed medication, suggests an amount of $21,609.34, according to the actuarial evidence (Exhibit B). · I believe it is reasonable to include the claim of $12,706, being the cost of the pain management programme suggested by Dr Gronow. I am not satisfied, however, that specific allowance should be made ($6,000) for the suggestion of Dr Dent (report 7.7.99), there being an element of duplication. · However, the plaintiff will require medical supervision and is likely to need hospital treatment from time to time. The plaintiff's schedule of damages claims the sum of $10,000 (which equates to about $10 a week). I believe that sum is reasonable. · The plaintiff's wheelchair expenses ($52,400) should also be included, as the defendant acknowledged. Future Motor Vehicle Costs 111 Ms Jones owned a car at the time of the accident. The car was later repossessed. She has allowed her licence to lapse. She says, sensibly, that it would be unwise for her to drive because of the medication she is obliged to take. 112 What, then, should be allowed for this item? The plaintiff has claimed the cost of a vehicle, running expenses, and the replacement of that vehicle from time to time. The claim is for $163,616 based upon an NRMA report (Exhibit B). It was said that a car should be available to the person who provides the plaintiff with assistance, so that the plaintiff can go shopping, visit friends, and do those things that she would do herself were she able bodied. She can, of course, no longer use public transport. 113 That argument has some merit. However, a more realistic alternative may be taxis. The plaintiff uses taxis at the present time. 114 I believe that, to award the plaintiff the full amount claimed may over compensate her in respect of this item. The amount allowed should be moderated, recognising that the plaintiff may choose to use taxis instead. To some extent the figure selected must be arbitrary. I believe, nonetheless, that $80,000 is reasonable for this item. Future Home Modifications 115 The plaintiff, as mentioned, lives much of the time with her fiance, Steve. Steve has a small unit which has been modified so that it is suitable to his needs, as a person in a wheelchair. 116 However, the plaintiff clearly values her independence, and has continued to maintain her own home. I believe it is reasonable that provision should be made for modifications to her home. Amongst other things, Steven's house is designed for one person rather than two, and the accommodation of two disabled people is difficult. Ms Jones described it as a "tiny little unit" (T.49). 117 An assessment of the modifications required was undertaken by Ms Dinley on behalf of the plaintiff. The total cost was assessed at $65,376. That sum includes the cost of replacing equipment during Ms Jones' lifetime. It should be discounted to reflect the deferred nature of part of the expenditure. 118 The defendant suggests a figure of $10,000 as an appropriate sum. That seems to me too small. On the other hand, the plaintiff's assessment appears somewhat lavish. Doing the best I can, I believe a reasonable allowance for this item is $45,000. Future Holiday Expenses 119 The plaintiff was a person who regularly took holidays before her accident, including holidays overseas. She went to New Zealand and the USA. She also visited Western Australia. I believe that some allowance should be made for the additional expense to her, as a disabled person, in undertaking holidays. The defendant suggests an allowance of $26,564. The plaintiff claims $58,940. I believe that a figure in between in appropriate. I allow $40,000 for this aspect. Summary of Findings Non-economic loss $220,100.00 Past economic loss $106,703.00 Fox v Wood (to be agreed) Future economic loss $325,961.00 Future superannuation entitlement (to be recalculated) Past care $39,888.00 Future care $384,864.00 Out of pocket expenses $156,838.47 Future pharmaceutical expenses $21,609.34 Pain management programme $12,706.00 Medical supervision $10,000.00 Wheelchair expenses $52,400.00 Future motor vehicle costs $80,000.00 Future home modifications $45,000.00 Future holiday expenses $40,000.00 120 A number of aspects remain outstanding, and must await further submission in the light of these findings. Submissions should also be made on the question of interest. The slip rule will apply to any mathematical error. 121 The defendant paid the plaintiff worker's compensation. The sum paid must be deducted from the total amount awarded. I have not been provided with the agreed figure. Once I have that information, and once the final elements of the award have been determined, I will enter a verdict for the plaintiff in the appropriate sum, plus costs. ********** Last Modified: 01/03/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.