New South Wales Supreme Court CITATION : Trudy Olsen v Identix Australia Pty Limited [2002] NSWSC 157 FILE NUMBER(S) : SC 12855/00 HEARING DATE(S) : 25/02/02, 26/02/02, 27/02/02, 28/02/02, 29/02/02, 4/03/02 JUDGMENT DATE : 15 March 2002 PARTIES : Trudy Olsen (Plaintiff) Identix Australia Pty Limited (Defendant) JUDGMENT OF : Einstein J COUNSEL : Mr M Maxwell, Mr J de Greenlaw (Plaintiff) Mr M B Williams (Defendant) SOLICITORS : Gerard Malouf & Partners (Plaintiff) A O Ellison & Co (Defendant) CATCHWORDS : Claim to damages regulated under Workers Compensation Act 1987, section 151 Z (2) - Personal Injury - Liability of employer - Alleged injuries sustained by plaintiff employee after fall down stairs at work - Medical reports and other evidence inconsistent with plaintiff's evidence of fall - Whether plaintiff fell on date alleged - Whether plaintiff fell on prior occasion - Contributory negligence - Plaintiff employed as office manager - Damages not litigated - Assessment of damages LEGISLATION CITED : Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Fox v Wood (1981) 148 CLR 438 Griffiths v Kerkemeyer (1977) 139 CLR 161 Heuston v Yore Contractors Pty Ltd (unreported, Supreme Court of New South Wales, Hunt J, 9 March 1992) CASES CITED : Jones v Dunkel (1959) 101 CLR 298 Kondis v State Transit Authority (1984) 154 CLR 672 Sullivan v Gordon (1999) 47 NSWLR 319 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Short minutes of order to be brought in by the defendant providing for a verdict for the defendant. Submissions as to costs invited. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION EINSTEIN J 15 MARCH 2002 12855/00 TRUDY OLSEN V IDENTIX AUSTRALIA PTY LIMITED & 2 ORS JUDGMENT 1 The plaintiff claims damages in respect of injuries which she claims to have sustained on 4 August 1998 when in the course of her employment and whilst walking down stairs in the premises of her employer, the first defendant, she is said to have slipped on the top step falling heavily to the ground. 2 The claim requires to be determined under the regime provided for in section 151z (2) Workers Compensation Act 1987. 3 The plaintiff had joined as second defendants the registered proprietors of the property in which the accident was to have taken place. The second defendants had in turn cross-claimed against the first defendant and against the managing agent retained by the second defendants apparently under a written agreement. Soon after the commencement of the final hearing terms of settlement were handed up resulting in the dismissal of the proceedings as against the second defendants and resulting in the dismissal of the cross-claims. In those circumstances it is convenient to refer to the employer, Identix Australia Pty Ltd, as "the defendant". The plaintiff's employment 4 The defendant at all material times carried on a business at 765 Pacific Highway, Chatswood. The business concerned the manufacture of a biometric device which verified the identity of persons by the use of a three-dimensional picture of a fingerprint which was scanned. 5 The plaintiff had commenced working at the subject premises in 1996, with her employer then being Fingerscan Pty Ltd. Fingerscan was taken over by the defendant in March 1998. At the time when she commenced employment with Fingerscan her position had been as personal assistant to the Managing Director and Chief Operating Officer of the company 6 In about March 1998, at the time when she became aware of the takeover by the defendant, the plaintiff was offered a different position, namely the position of Senior Office Manager at the Chatswood office which entailed a change of salary. Her then duties, as described by her in giving evidence, were as follows: "Managing the staff that were present in Australia; arranging for staff we did employ.. in Australia who were in the United States to be found a home, for them to bring their wives and children there, to make sure they were comfortable in their new environment; take care of all the administrative duties in the office such as overseeing the payments of creditors, debtors; doing some company secretarial work; making sure the PR part of the job - human relations part of the job with the staff was fulfilled; make sure the staff were happy, and that included taking care of the environment they worked in so whether they had a problem with their car park or whether they had a problem with their particular job, ensuring they were kept happy in the best way possible; the maintenance of their work environment, ensuring they had everything within their means to work efficiently; stock ordering from Identix in the United States; client or customer contact; liaison; repairs and ensuring that the repairs were done on board and in the office efficiently; customers were charged or not charged depending on the relationship we had with them." [transcript page 25] 7 The plaintiff's evidence was that from March 1998 she reported to Mr John Bruce-Smith, the chief financial officer who at that stage was situate in California, and that she also reported to another person in the United States whose name she could not recall. 8 The way in which she communicated with Mr Bruce-Smith was by e-mail and by telephone. On her evidence, if she needed to spend some money on the office she would deal with Mr Bruce-Smith in this regard. 9 A letter of appointment from the defendant to the plaintiff dated 10 March 1998 became exhibit P2. This makes plain that the position which she was offered was the position of Senior Office Manager reporting to the Managing Director. The description of duties includes the following: · Unofficial secretarial responsibilities for the Corporation.. including such items as: · Building Maintenance and Management · Human Resources · Staff Management in the absence of appropriate executives" 10 The plaintiff's evidence was that her salary was increased with the letter of appointment. That salary was to be $57,500 per annum. The office premises 11 The building in which the plaintiff worked was an office building comprising a basement area and car park with a security cage for stock. The reception was on the ground floor. The first floor comprised office space in which the plaintiff worked. Above the first floor was another floor for use as further office space. Access from the basement area/car park up to the reception floor was via 2 flights each of six stairs separated by a landing being part of the stairwell. The stairwell turned in on itself (ie. goes in the opposite direction) after the landing. Further access from the reception floor up to the first floor was via further stairs. The plaintiff had been in the habit of accessing the basement area from the area where she worked by walking down one and a half flights of stairs into the reception area, through a door on her left-hand side and then down the additional flights of stairs into the basement car park area. The circumstances of the alleged accident 12 The accident is said to have taken place whilst the plaintiff was engaged in the task of carrying boxes from the reception floor down to the basement floor for the purpose of placing them in the security cage. She claims to have descended the first flight of stairs without difficulty, turned on the landing, felt for the top stair with her foot and slipped to the bottom of the flight of stairs. The anti-slip guard on the top stair had come off some time before. There had also been a problem with the lights in the area and the light was extremely dim. Holding the boxes made it difficult for her to see in any event. Had the lighting not been a problem, she believes she would have been able to look down towards the lower flight of stairs as she turned on the landing or it would have been easier for her to look in that direction. 13 The plaintiff was not a member of a private health fund at the material time. [transcript page 139] The use of the stairs 14 The plaintiff's evidence was that in her capacity as office manager she had occasion to use the flights of stairs on a regular basis and on occasion as part of her job would take stock to the cage in the basement where office supplies were stored. She would do this as often as required depending upon staffing levels, although it was not in her express job description. Authority to expend monies to effect repairs 15 Her evidence in chief was that in her capacity as office manager she reported, as I have said, to Mr Bruce-Smith and that as part of her employment she had authority to expend moneys on the part of the company to some extent. In relation to the question of what that extent was, her evidence was "to effect minor repairs", meaning as she expanded, to the furniture, to purchase light bulbs and toilet paper and those kinds of items and minor repairs perhaps to desks or chairs being assets owned by her employer. In relation to how she would have these repairs carried out, she was asked in chief whether she would have to seek authority to do this or whether she just used the petty cash. Her answer was that petty cash was available for that use. On my findings the petty cash float was at all material times in some hundreds of dollars, likely to have been $500.00. 16 The plaintiff gave evidence as follows: " MAXWELL: Q. During the course of your employment with Identix Australia Pty Limited, did you have discussions with anyone there, that is superior to yourself, about where your authorisation, that is authorities in relation to repair, extended? A. No." The problem had been apparent for months 17 The plaintiff's further evidence was as follows: "Q. In the months or so leading up to August 1998 in relation to the staircase that you talked about leading to the basement, I think you indicated that you went down there and went up and down there on occasions? A. Yes. Q. Did you notice anything in particular in relation to that staircase specifically in relation to the lighting first? A. Yes. Q. What was that? A. Several things, that the lights on the first landing at the bottom of the first set of stairs were flickering. One was, they were fluorescent bulbs, one was completely out, one was flickering. At the bottom of the second set of stairs the exit light was off, was out. Q. Are we talking about the stairwell, the staircase between the reception and the basement? A. That's right. Q. What effect, if any, did you notice that had on the actual lighting in the area of the staircase? A. The lighting was extremely dim. Q. When did you first notice that? A. Several months before my accident . Q. Was there something else that you noticed? A. The anti-slip, the metal anti-slip guard had come off the stairs. Q. Where in relation to the stairs particularly had that come off? A. It was off the first step on the second flight down. Q. So to assist his Honour, you had come down a set of stairs? A. Yes. Q. From the reception area? A. Yes. Q. And how many stairs approximately in that set? A. Perhaps eight. Q. Then you came to a landing? A. Yes. Q. And in relation to that landing, are you able to describe where the anti-slip device had come off? A. As you turn the corner on the landing it was the top of the first step on the first step. Q. Then there were a number of steps going down? A. After that. Q. When did you first notice that? A. Several months, I can't recall. It was a fair few months prior to the accident. Q. Did you say anything firstly in relation to either of those matters to anyone at Identix? A. Yes. Q. Who was that? A. John Bruce-Smith. Q. Which matter did you raise with him? A. The anti-slip guard . Q. Do you recall when it was that you raised that with him? A. It was very soon after I noticed that it was missing. Q. How did you raise it with him? A. By email. Q. What did you say? A. I asked him for advice on who was responsible for repairing such things and to get back to me. Q. To get back to you? A. Yes. Q. At the time you sent the email, where was he? A. He was in California. Q. Did you have a response? A. Yes, I did. The response was-- OBJECTION (McCULLOCH) …… Q. Mrs Olsen, in relation to the email that you sent, to assist recovery, if it is at all possible, are you able to give us any particular information such as passwords or files that may indicate where it has been retained on the computer, if it has been retained? A. I have no idea whether it has been retained. It would have been under "building management" or perhaps "lease documents". Q. Lease documents? A. Yes. Other than that, I have no idea, I'm afraid. HIS HONOUR: Q. Did you have a folder for your emails to and from Mr Smith, a separate folder? A. No. [I interpolate that a call on the defendant, made as on subpoena, for such emails produced none] MAXWELL: Q. You received a response in any event, did you, from Mr Smith? A. Yes. Q. As a result of that response, what did you do? A. I went to see David Niven. Q. Who is David Niven? A. He was the, so far as I was aware, the building management gentleman that I dealt with at Mainland. Q. Had you dealt with him before? A. Yes. Q. In what respect had you dealt with him? A. Such items as paying rent, general items to do with sub-letting the building, painting the outside of the building, putting our Fingerscan - taking our Fingerscan sign off, painting over the faded area where the sign had been, painting the inside of the building in the office area. Q. When was it that you went to see David Niven, do you recall? A. I don't recall the exact day. It would have been very shortly after I received the request from Mr Bruce-Smith. Q. And then by reference to the date of the accident, how long before that was it? A. Oh, several months perhaps . Q. Where did you see David Niven? A. In his office. Q. Where was that, in relation to your building? A. That was right next-door. It was a short walk around the corner and up the staircase. Q. What did you say to him? A. I asked, I told him what had happened. Q. Can you say what happened, as if you are having a conversation now? A. Okay. I told him that there were several items that needed repair so far as work was concerned , one of them was the anti-slip guard on the stairs, the other one was the poor lighting in the stairwell and in the garage area and I needed a, I was requested to get a copy of the lease to determine whose responsibility it was to repair those items. Q. What did he say? A. He said he didn't have a copy there, we had several copies in the office and as far as he was aware, it was Identix's responsibility to maintain those items. Q. What did you do then? A. I went back to my office and I emailed the answer back to John Bruce-Smith. Q. Did you receive a response to that email? A. No, I didn't. [Likewise – no such emails were produced on the 'subpoena'] Q. In the email, that's the final email that we have just discussed, did you send anything to John Bruce-Smith, apart from the agent's reply, sorry, Mainland's reply? A. I located a partial copy of a lease, but it did not have everything in it and I think I posted that to him. I can't be clear. Q. Did you hear anything more from John Bruce Smith in relation to those items? A. No. Q. Prior to 8 August 1998 - 4 August, sorry. A. No.... ... MAXWELL: Q. And from the time that you spoke to John Bruce-Smith and following that conversation with Mr Niven and the final email to John Bruce-Smith, was anything done in relation to those complaints that you made, that is the lights and the anti-slip device on the stairs? A. Nothing was done by Identix. Q. I'm sorry? A. Nothing was done by Identix. Q. Was anything done at all in relation to those complaints, by anyone? A. Yes. Q. Before 4 August? A. Yes, yes. Q. What was done? A. I personally climbed a ladder and fixed the exit sign at the bottom of the stairs . Q. How did you fix that? A. I replaced the fluorescent bulb that was inside and I also replaced the starter that activated the fluorescent bulb . Q. That was the exit sign? A. That's right. (Mr McCulloch applied for photocopy access to exhibit P2; access granted.) …….. MAXWELL: Q. Mrs Olsen, after you sent the email to John Bruce-Smith and subsequently sent by mail a partial copy of the lease, did you have any discussions with anyone else in the office in relation to the problem with the stairs and the lighting? A. Yes. Q. Who was that? A. John Parselle. Q. What was his position there? A. Yes, he was the managing directors [sic]. Q. What was your responsibility to him, at that time? A. I reported directly to him. Q. Do you recall when you had the conversation? A. A few months before the accident. Q. What did you say to him and what did he say to you? A. I said, "John, we have got some issues in the office that we need to resolve, several issues"; they were the lighting in the stairwell, lighting in the garage area and the slip guard that had come off the stairs. "We need to sort them out, we need to get them fixed". Q. What did he say? A. He said to me, "I don't have the authority to authorise any repairs of that nature". He was leaving the company, "Refer them to John Bruce-Smith". Q. Did you have any discussion thereafter with John Bruce-Smith? A. Yes, I did. Q. Was that by email? A. Telephone. Q. How long after the conversation with Mr Parselle was that? A. Very shortly after. Q. What did you say to him and what did he say to you? A. I said, I related the conversation I had with John. I'd asked him, I said, "Hi John", this is John Bruce-Smith, "Hi John, how you doing? We need to get some issues sorted out over here with relation to repairs to the lighting in the garage, the stairwell, repairs to the stairs" and he said, "Trude, there are no funds at the moment for these, we are in the middle of taking over another company, it's the least of my worries, it will have to wait". Q. Do you recall when that conversation took place? A. It was a few months before, it was very shortly after John, I spoke with John Parselle. Q. Did you have any conversation either with Mr Parselle or Mr Bruce-Smith about whether the job was a big job or a little job or was expensive or not expensive? If you don't recall then-- A. No, I don't recall whether that was discussed at all. Q. Then between the time of that last conversation then with John Bruce-Smith and 4 August 1998, did you have any conversations with anyone else at the office about those matters? A. Yes, several of the employees. Q. Did you have occasion to discuss the matter, the same matters, with Mr Parselle again after the conversation with John Bruce-Smith? A. I don't recall exactly. I may well have done. HIS HONOUR: Q. Did you say "several of whom"? A. Several of the employees, yes. MAXWELL: Q. Again between the time of the conversation with John, the last conversation that you mentioned with John Bruce-Smith when he said there were no funds or words to that effect, and 4 August, were any repairs effected to the stairs? A. No. Q. In relation to the lights in the stairwell, as I understand it, there are two areas of lighting, there was one area where there were two fluorescent light bulbs? A. Yes. Q. And the exit sign ? A. That's right . Q. I think you indicated that the exit sign you had replaced the fluorescent tubing? A. Correct. Q. Did that material affect the lighting in the stairwell? A. Oh, with minimal effect. Q. What was the lighting like after you effected that repair? A. Still very dim." Q. What happened between the date of that last conversation you've just referred to and 4 August in relation to the two fluorescent tubes, the other set of lighting? Did they remain the same, were they repaired? A. No, I actually think that the one that was flickering ended up going out altogether. I can't recall . [transcript pages 31 and following] The plaintiff's relevant medical history 1966-1969 18 The plaintiff's medical history as relevant is that she was investigated between 1966 and 1969 for thyroid problems. She was diagnosed for Graves disease which is hyperthyroidism. The symptoms were shakiness, palpitations, quick metabolism and bulging eyes. After that diagnosis she was given medication to control the hyperthyroidism. Mid 1992 19 Much later and shortly after her second child was born in mid 1992 she was treated, then in New York, with radioactive iodine treatment in an attempt to control her thyroid problem. The effect of this treatment was to reverse the position and give her hypothyroidism. Her symptoms of this were tiredness, lethargy and putting on weight for no apparent reason. She was given medication to control this having, prior to the radioactive iodine treatment, been consistently taking medication for the hyperthyroidism, which problem had been under control with that medication. Following the radioactive iodine treatment the medication that she was prescribed did not immediately successfully control the hypothyroidism, but after more than a year started controlling this condition. As a consequence of that treatment she still has regular monitoring sessions for the hypothyroidism every three to four months and if the doctor requires it then she sometimes has to increase the dosage of Oroxine which controls the condition. Her evidence was that the hypothyroidism is essentially under control presently with medication. It had not been under control completely since the initial period following the treatment in New York and she has had to reduce or increase medication dependent upon the blood results during the monitoring sessions every three months or thereabouts. June 1998 20 Her evidence was that in about June 1998 she had a pelvic ultra sound having experienced severe period pains, pain associated with ovulation, 'tummy pains' and slight back pain. Her evidence was that the back pain was associated with the period pains. After the pelvic ultrasound she was prescribed Voltaren and given advice to go back on the pill which she did and which somewhat helped the problem. 21 Her evidence as to her health immediately before 4 August 1998 was: "I was fine". [transcript 41] The specific incident alleged 22 The plaintiff's evidence was as follows: MAXWELL: Q. On 4 August 1998 did you attend work with Identix as usual? A. Yes. Q. What time did you arrive? A. Approximately 7.30am. Q. What were you doing that morning? A. I was attending to my usual duties and I had to move some stock from the reception area into the cage in the basement. Q. What did you do to do that? A. I waited until Jim Kosyfas arrived in the office, so he could help me and we proceeded to unpack the pallet of boxes of stock and take it down into the cage. Q. Had you been on that stairwell any time that day before that? A. Yes. Q. In what circumstances was that? A. After I parked my car I came upstairs. Q. On the way up the stairs what had you noticed, if anything, about the lighting? A. It was extremely dim. I think that the other light was out. Q. What lighting was actually working there, to your recollection? A. It would have been only the exit light, to my recollection . Q. And exit light is right down the bottom of the stairs? A. That's right. Q. What did you do then to remove the stock to the basement area? A. Physically carried it downstairs. Q. How many pieces of equipment did you carry? A. Between four and five, mostly four, four boxes at the time. Q. Are they small, large boxes? A. I guess average size, small boxes. Q. You are indicating with your hands there? A. (Indicating) About that, it would be about. Q. Each box is that wide, is that what you are saying? A. Yeah, a little bit wider than my body width. Q. About 15 inches. Can you indicate one more time? A. About that wide. (Indicating.) Q. Fifteen to 18 inches? HIS HONOUR: Q. How high? A. Probably about that high. (Indicating.) Q. See there is a brown box up there, is it something like that, or smaller than that? There is a red one above it. A. A similar width and probably a greater length. Q. The brown one? A. Yes. HIS HONOUR: You can describe it for the transcript. MAXWELL: Q. The brown box described is approximately 15 inches? A. Sorry, it is actually probably closer to the white one next to it. HIS HONOUR: I don't know what is in it. We will have to be careful, the white one, Court officer. Perhaps I will ask my research assistant, who may have an advantage. MAXWELL: Perhaps we can do that some other time. It is a VHG box. HIS HONOUR: Perhaps that can be left with someone so the measurements can be given and this witness has indicated that approximately as the measurement. [the box was later measured at 45 millimetres by 34 millimetres as to length and breadth and 16 millimetres depth – transcript 91] MAXWELL: Q. Having a look at the box now here on the bar table, is that the approximate size? A. Yes. Q. How many of those did you have? A. Between four and five. Q. You were taking those boxes to the cage in the basement below? A. That's right. Q. Did you do that by accessing the stairwell? A. Yes. Q. From where? A. From the reception area. Q. Were you first to go down or had Mr Kosyfas gone down before you? A. I don't recall. HIS HONOUR: Q. Were they in the reception area in some fashion? You didn't have to bring them down to reception? A. Yes, they were on a pallet. MAXWELL: Q. Can you explain what happened then as you accessed the stairwell? A. I, carrying the boxes down, came to the landing , felt for the step and slipped off the stair. Q. When you say "the landing", that's the landing we have seen, the only landing at the stairs? A. At the bottom of the first flight, yes. Q. You felt for the step, you say? A. Yes. Q. And slipped? A. Yes. Q. Do you recall what foot it was that slipped? A. I can't be sure. Q. Do you recall on what you slipped? A. I slipped off the edge of the step. Q. In relation to that photograph that I showed you, A, do you remember the series of three photographs? A. Yes. Q. A1, 2 and 3, you pointed out you put an X on that photograph? A. Yes. Q. I think it was on A1. In relation to that photograph, are you able to tell us where you slipped? A. On the step that I marked with an X. HIS HONOUR: The X is on the A2. MAXWELL: My apologies, thank you, your Honour. Q. What happened to you then? A. I landed at the bottom of the stairs. Q. How did you feel at that stage? A. A bit shocked. I felt bruised. Q. Where did you feel bruised? A. My, in my lower back, the tailbone area. Q. What happened to the boxes? A. They were everywhere, all over the floor. Q. Whilst you were in that position, did someone approach you? A. Yes, Jim Kosyfas was coming down with another load of boxes behind me and-- Q. What was his position in the company? A. I believe he was a technician. He effected some repairs. Q. When he came down the stairs, where were you? A. Sitting on my backside at the bottom of the stairs. Q. Did you have a conversation with him? A. Yes. Q. What did you say to him? A. He said to me, you know, "What happened to you?" I said, " I fell down " and he said, "Are you all right, mate?" and I said, "Yeah, I think so." Q. What happened then? A. I stood up, made sure I was okay to walk around and continued on with the job. Q. So you picked up the boxes? A. Yes. Q. What did you do with those? A. Put them into the cage. Q. Did you go back up stairs then? A. Yes. Q. Did you speak to anyone? A. Yes. Q. Who was that? A. John Parselle. Q. What did you say to him? A. I told him, I said, "John, I have fallen down the stairs putting the boxes in the cage". He said, "How are you feeling?" I said, "Oh, I'm feeling a bit bruised, bit sore." Q. Did he say anything else about that? A. Yes, he said, "I think you best go see the doctor." [transcript 44 and following] 23 It is common ground that in August 1998 Mr Bruce-Smith was in California. He had been there for some time. Following the alleged incident The attendance upon Dr Kucera - 4 August 1998 24 The plaintiff gave evidence that approximately two hours after the accident she went with her husband to see Dr Kucera. She drove home and her husband drove her to the doctor. Her evidence was that she explained the problems which she was having to Dr Kucera, that she was feeling pretty bruised in the lower back and did not go back to work that day but believed that she went back to work the next day. She had not stayed the day after the accident for the entire day but only for part of that day. Some x-rays were taken in relation to the lower spine and after her return to work she had a CT scan of her lower back. She started some physiotherapy. She had no benefit from the physiotherapy, but continued to see Dr Kucera. She continued to work full-time in the next week or two after the accident but was having difficulty coping with the work. 22 August 1998 25 The plaintiff's evidence was that on this day she was admitted to Hornsby Hospital. From the time of the accident up until 22 August her pain had worsened a great deal. The occasion which led to her admission at the hospital was that she had collapsed at home. As she rose out of bed she felt extreme pain in her lower back and down her right leg feeling 'like a hot poker' and being a violent shooting pain. She was unable to stand and collapsed in the bedroom. Her husband took her to Hornsby Hospital and she was there for about six days. During that time she had a further CT scan of her lumbar spine and an MRI scan of her lumbar spine. 26 August 1998 26 On this day the plaintiff signed a claim form. [Exhibit P5]. The document identifies what happened as "fell down flight of concrete stairs carrying out duties in office". [transcript page 51] 27 Also on the same day an employee's report of injury form was signed by Mr Bruce-Smith as financial controller of the defendant. [Exhibit P6]. 28 August 1998 - 20 September 1998 28 On 28 August 1998 day the plaintiff was transferred to the Sydney Adventist Hospital [the "San"]. She there came under the care of Dr Dixon and has remained under his care up to the present time. 29 The plaintiff's evidence was that the treatment which in general terms she had during her hospitalisation at the hospital involved pain relief, hydrotherapy and light physiotherapy. 30 Her evidence was that upon her discharge from the San she was feeling "slightly better" than when she had been admitted. Denial of any previous fall prior to 4 August 1998 31 The plaintiff's evidence was that she had not had any other fall apart from the fall which she alleged had taken place on 4 August 1998. [transcript page 52 ] The period from late September on 32 The plaintiff's evidence was that after she was discharged from the San she was feeling very weak and did very little around the house. Initially she was assisted by her husband and then she had a nurse. For a short time her mother had also assisted, she thought whilst she was at the San and for a few days after her discharge. 33 The plaintiff's evidence was that was that at the hospital she was not able to look after her own self-care. Her husband had helped her with her showering at the hospital on a few occasions and after she returned home she had to be assisted with her personal care and showering and so on. She never returned to work. 6 October 1998 34 The plaintiff's evidence was that on or about 6 October 1998 she received correspondence to the effect that her employment services were to be terminated. 6 November 1998 35 On this day the plaintiff signed a deed of settlement and release with the defendant which provided for a full and final payment to her of certain moneys and by which she released the defendant from all claims excluding any claim she may have under the Workers Compensation Act 1987 (NSW) or the Workplace Injury Management and Workers Compensation Act 1998 (NSW) arising out of the injury she suffered at the company's premises on 4 August 1998. (Exhibit P7) November 1998 36 In this month the plaintiff was referred to Combrook Pty Ltd, a rehabilitation provider, for occupational rehabilitation. She was still, on her evidence, feeling extremely weak and advised that the rehabilitation provider was not prepared to proceed with rehabilitation at that time. 21 December 1998 37 On this day the plaintiff consulted Dr Little in the Gosford area. He was unable to give her any real assistance. March 1999 38 In this month the plaintiff began receiving assistance from a district nurse and this nursing attention continued until about October 2001 when the insurance company refused to pay for any more of this nursing assistance. The plaintiff's evidence was that the nurse had attended to things like her personal hygiene regime, monitoring her pain medication, ensuring that she had some form of exercise and also some counselling. Since the nurse's departure, Mr Olsen has taken her place. May 1999 39 Also in May 1999 the plaintiff saw Ms Julia Fleming who is attached to the Sydney Pain Clinic. This had been proposed as a pain management exercise with cognitive exercise and strategies. She saw Professor Cousins associated with the Sydney Pain Clinic but there had not been any other than 'slight' improvement in her condition at that time. Dr Cousins gave her some facet block injections which helped for the first two days. Prior to those injections she was experiencing extreme lower back pain and then pain in both legs. After she had the facet blocks she noticed a problem of incontinence and had certain tests. She saw Dr Coombes, a neurological surgeon, in this regard. 40 Ultimately the plaintiff did undertake the ADAPT Program which covered a five-week period and during which she was put through an exercise program that was developed for her as an individual to attempt to increase body strength muscle development. She was encouraged to reduce pain, medication tablets and to use other ways of controlling the pain. She had a lot of difficulty completing the exercises and noticed that she had lost the majority of body strength which she had developed over a number of years and gave evidence that as far as she was concerned her muscles were non-existent. July 1999 41 In this month the plaintiff began seeing Dr Konc a chiropractor. He gave her infra-red treatment, light massage and light neck manipulation for a period of months. She had that treatment about two or three times a week and had only slight benefit from the treatment. At this time the medication she was taking having been prescribed by Dr Dixon included 'Toradol, Mersyndol, Voltarin, Panadeine Forte and Valium'. December 1999 42 In this month the plaintiff saw Dr Robertson, a psychiatrist. His report includes the following: "I think that your client has suffered an Adjustment Disorder with depressed mood, as a result of the accident of August 1998, and the medical and social consequences of the accident. Chronic pain, inability to work, inability to take part in her usual leisure and sporting activities, and the loss of her sexual relationship with her husband, have been the main factors which have precipitated and perpetuated her depression. Another factor which has fed into her depression has been Abnormal Illness Behaviour, of the illness-denying type. It has been very difficult for her to accept that she has an injury which is causing severe limitations." 43 The plaintiff's evidence was that no time from the time of her alleged accident had she had any special treatment for any psychological or other type of emotional problem. She gave evidence to the following effect: " Q. How have you felt generally about the disabilities that you have, emotionally I am talking about? A. I have difficulty coping with my limitations, I don't think I have come to terms with it. My approach to a lot of things has changed and in an emotional way. I don't deal with things very well Q. Had you at any time over the course of your treatment felt you have had any psychiatric problems? A. No Q. Depression? A. Perhaps" [transcript page 63] Early 2000 44 In early 2000 the plaintiff saw Dr Blum, a consultant neurosurgeon. On the first occasion when she saw Dr Blum she was in a lot of pain. In due course and after he recommended that she undertake treatment with a muscle relaxant Baclafin and had discussed with her the prospect of using an epidural stimulator, this procedure was undertaken. 45 Before Dr Blum was prepared to undertake the procedure it was necessary for the plaintiff to see other doctors. At about the same time she was seeing Dr Shand, a psychiatrist organised by the defendant's insurer. In March 2000 she saw Ms Jacqueline Kalmar, occupational therapist, about rehabilitation treatment. In April 2000 she saw Dr Mahoney an orthopaedic surgeon. She also undertook a number of tests with Mr Henry Luiker. 46 She also saw Dr Ireland on behalf of the defendant on 13 March 2000 and Dr Billet on 16 October 2001. 47 Dr Blum carried out the procedure on 19 March 2001. 48 Dr Blum described the procedure in evidence as follows: "... Basically the patient is placed on the operating theatre face down. A local anaesthetic is put into the skin where the stimulator is to be located, then the patient is given quite heavy sedation, to make it relatively pain free, and a small hole is made in the spinal column bone, and the stimulator, which is about the size of a small Paddle Pop stick with a wire coming out of it; is fed between the face of the spinal cord and the bone on the outside of the covering of the spinal cord with the dura. The patient is then woken and an external stimulus is applied to the electrode, to check that the electrode is in the correct position, one leg or the other leg or both legs and the back. Then the patient is put back to sleep and is sown up and returned to the ward. The procedure is about an hour's procedure and then the rest of that - usually a week it is trialled, with the metronics technician -- M ED to get the best sort of stimulation, and then the patient is seen daily, to determine whether this works or doesn't. If it doesn't, the patient is returned to theatre, the wound is opened and it is extracted out. If it does then the patient is put to sleep, this time and the electrode bugs are tunnelled under the skin to an abdominal pocket which is under the skin, which is outside the abdominal cavity just in the fat of most people, or outside the muscle and the two are connected up. The patient then uses the stimulator by an external remote control which is put on the skin, which switches the machine on and off and you can change the parameters of the stimulation." "MAXWELL: Q. Just briefly, Doctor, in this instance the insertion took place in the thoracic spine in T7 A. Yes it's inserted by x-ray at the time. Q. And the battery I think is on the left-hand side of the abdomen? A. It doesn't - we usually put it - if the patients have not had their appendix out, we put it on the left side. If they have had her appendix out it's on the right side." [transcript page 83-84] 49 The plaintiff gave evidence that after the stimulator was permanently implanted she noticed "very slight benefit" and that over the next couple of months the benefit did not increase. She had been hoping for better. Using the stimulator gave her a slightly reduced pain level, but it was not as much benefit as she had thought or had hoped for. That had remained the case right up until the present time. Over time the benefit had decreased and the plaintiff is currently taking pain medication in the form of Voltarin, Valium, Mersyndol, and Toradol. 50 The plaintiff is still presently on Oroxine. There has not been any change in her problems associated with the hyperthyroidism which has been continually monitored. She does not propose to continue with the stimulator. The incontinence problems have continued and remained the same. 51 The plaintiff's evidence was that she was in extreme pain at the moment on the outside of both of her legs and in terms of her lower back, which pain was with her all the time although there are times when it was better than at other times. There were no times when she had no pain. On a level of 1 to 10 (1 being the least painful, and 10 being the most painful) in relation to her back the most painful would be at 8 and the least painful would be at 4; in relation to her right leg, the most painful would be 8 and the least painful would be 3; in relation to her left leg the most painful would be 6 and the least painful would be 3. 52 Her evidence was that at no time since the accident had she felt like she was capable of working. Her evidence included evidence as to her normal day in the following terms: "A. A normal day. A normal day is waking about 4am because I need pain medication. Waiting until the pain is bad enough that I can't stand it any more and then taking the medication. If the pain killers have kicked in enough I will attempt to get out of bed to get breakfast for the children or to at least see them off to school. Most often back to bed and by that time it would be time to take another pill, I guess, depending on the pain levels. Q. When you say back to bed what time would that be? A. About 8.30. Eating breakfast, waiting until the pain killers actually kick in and then attempting to do some kind of exercise, whatever it may be, to encourage me to do something. [transcript page 71 ] The plaintiff's employment situation since 22 August 1998 53 The plaintiff gave evidence that she had not worked at all since her admission on 22 August 1998 to Hornsby Hospital. 54 She has had no personal intimacy in terms of sex with her husband since the day of the accident. 55 In December 2001 the plaintiff and her family travelled to Melbourne and stayed with relatives and friends there over the school holiday break. The house in which the family had been living for many years at Cherrybrook had been rented. She and her husband and her children have recently moved to Queensland where they are living with her husband's relations, the intention being to return to Sydney shortly. Mr Olsen later gave evidence that the move to Queensland was simply pending the hearing of these proceedings. The contemporaneous medical records 56 An important consideration of high significance in terms of the findings of fact in this case concerns the documented histories to be found in the medical records which went into evidence and which include hospital records. 57 A transcription of the medical records of Dr Kucera was admitted into evidence. 58 Importantly the entry for 4 or 6 August 1998 [it is difficult to decipher which date appears from the original] commences: "Sudden onset of lower back pain 2 days ago, no precipitating factor…" [emphasis added] 59 Dr Kucera was not called by the plaintiff to explain this entry. 60 The plaintiff denied that she had told Dr Kucera (whether on 4 or 6 August) that she had had a sudden onset of lower back pain two days before [transcript 115]. Her evidence was that it was on 4 August that the attendance took place. She denied that she had told Dr Kucera that there had been no precipitating factor [transcript 115]. She was not able to offer any explanation as to how this note could have come to read as it did. 61 The Hornsby Hospital records are also violently at odds with the plaintiff's version of what had actually happened. The admission record of 22 August 1998 under the name Dr Koo commencing section dealing "History of Present illness" is as follows: "35 -year-old female. 3 weeks ago sudden onset of lower back pain - cause unknown/woke up with it . Seen by local medical officer…" [emphasis added] 62 The same hospital records, again with the date 22 August 1998 but this time under the name Kuoh who was presumably a doctor, although this is not clear, include the following: "3 weeks history of lower back pain with right buttock pain and anterior leg pain down to toe. Much worse now. Unable to mobilise. No sphincter disturbance. No history of injury. Onset while getting out of bed ". [emphasis added] 63 The plaintiff gave evidence to the following effect: "Q. Well, certainly do you agree that you told neither Dr Koo, who seems to have seen you at adult admission or Dr Kuoh that you had an injury falling downstairs? A. I can't be absolutely sure" [transcript page 118] 64 A later reference in the Hornsby Hospital records which appears to be a record of notes by a physiotherapist is dated 27 August 1998 and commences: "1610 Physiotherapist-35 -year-old woman admitted with sciatica. Sciatic pain began three weeks ago - no specific incident …" [emphasis added] 65 The plaintiff was unable to be certain as to whether she could agree that when asked by the physiotherapist, she had made no mention of any specific incident, her evidence being that she was on such morphine that she did not know what was going on. [transcript page 118] 66 The same entry of 27 August 1998, part of which has been extracted above, continues after some further information about inability to do extension exercises and some other matters as follows: "Nil previous episodes of back pain, ok with both pregnancies. Had a fall on stairs at work three to four months ago - only bruising in back, nil problems". [emphasis added] 67 The plaintiff steadfastly denied that she had had a fall down some stairs at work earlier in the year [than the early August alleged fall]. [transcript page 120] 68 The same hospital records include what appears to be a referral or note from Dr Brooks to Dr Cook which does not mention any event, accident or precipitating incident. Likewise a consultant's report apparently from Dr Cook in neurology reads inter alia : "Acute back pain referred down anterior aspect right to lower leg to knee, shin and right groin. Symptoms now three weeks, nil relevant past history, onset acute, no event …" [emphasis added] 69 The plaintiff could give no explanation as to how this could have been in the history. She could not recall telling Dr Cook matters consistent with what he had written. She could not suggest anything which she told him that might have led him to write "no event". [transcript page 120] 70 The physiotherapist Ms Yong had written [see page 8 of the medical record transcription notes] inter alia: "She reports no previous back problems; and a fall down stairs three to four months ago with no ill effects." [emphasis added] 71 The plaintiff could not recall having said this to the physiotherapist. 72 Also placed into evidence were the San medical records (by transcription, exhibit P6; originals P16A). 73 The first entry appears to have been taken by Dr Singer and commences: "35 year-old female. 3 week history of back pain - lower lumbar severe, radiates down right thigh to shin. Fell down stairs at work 3 months ago - no immediate problems… Pain became very severe at home 6 days ago…". [emphasis added] 74 The plaintiff gave evidence to the following effect: "Q. … it is clear is it not that on 28 August when you went to the Sydney Adventist Hospital you appear to have told a Dr Singer that you fell down the stairs at work not on 4 August but some three months prior to 28 August? A. That is what it would appear, yes" [transcript page 122] 75 The last page of the transcription appears to be a note to Dr Fearnside reading inter alia: "Thank you for seeing this patient with right sciatica after fall ( three months ) leading to back injury then three weeks ago right sciatica with low back pain,…" [emphasis added] [The 'referring medical officer' section is not filled in on the original] 76 The hospital records also include a note from Dr Fearnside of 29 August 1998 reading inter alia: "… Fell at work (office manager) 3 months ago , down several stairs-bruising. Low-level back pain (continued working) until three weeks ago-exacerbation worse one week ago when arose from bed - to Hornsby Hospital". [emphasis added] 77 Although the plaintiff gave evidence that she was under heavy sedation when she was admitted to the San and gave essentially the same evidence in relation to Hornsby Hospital and its records, she gave evidence that she could not be certain that it was she who gave the accounts. [transcript page 123] Evidence of Dr Dixon 78 Dr Dixon gave evidence that he took a history from the plaintiff three days after she was admitted at the San when he had to ask her some specific questions and she told him that she had fallen down stairs at work some three weeks prior and had bruised her lower back and the injury had occurred at a firm called Identix at Chatswood at 10 o'clock in the morning. This was the occasion when the Workers Compensation and Third Party Acquaintance Form was signed by the plaintiff at her bedside. Dr Dixon gave evidence to the following effect: Q. And it's a document that…you filled in probably on that date? A. Yes. Q. And would it have been done at the SAN? A. I would have taken the form in when it became part - she was workers comp. I realised that I had to get a rapid report off because she had been hospitalised and was claiming workers comp and so I needed her consent to do a report so I've taken that to the bedside and filled it in and she would have signed it so that I could send the report. Q. So, really, it was a specific trip to get the - a consultation-- A. It was a consultation, yeah. Q. --with her for the precise purpose of filling in this worker's compensation form? A. When she was presented in casualty she was in extreme pain and she was accompanied by her mother on the trolley and the mother was extremely anxious that she have hospitalisation and immediate treatment and so I asked her, the resident, to admit her to hospital if we had a bed available and I don't know how long she stayed down in casualty but as soon as I was up in the ward it became apparent that she was worker's comp and so we had to get a document to whoever the insurer was so it's a consent form …… Q. And doubtless you would have told her what you had to do? A. Yes . Q. And you had to do it in a hurry? A. Well, the hospital fees were, you know, per day. Q. Yes? A. Mm" [transcript page129] [emphasis added] 79 Some questions arose during argument in relation to a section of the San hospital records. Dr Dixon was not taken to this section. It is to be found on the original exhibit P16A which section is said by the defendant's counsel to be Dr Dixon's notes. Just above this section of these notes one finds in a different handwriting the words: "D/W D Dixon" meaning "discussed with Dr Dixon". Immediately below this one finds a section which appears to have been handwritten in the same handwriting relevantly reading: "28 August 1998. History noted: 3/m [meaning three months] fell down slipped down concrete steps…" 80 Towards the end of the note there is a signature which the defendant's counsel submitted is that of Dr Dixon - the defendant's counsel in this respect took the Court to a comparison with Dr Dixon's signature to be found on exhibit D3 - the Workers compensation Form. 81 Following this note one finds in a different handwriting the words "S/B (meaning 'seen by') Dr Dixon as document[ed] above." [emphasis added] 82 In the result the defendant's counsel submitted that Dr Dixon is shown by these records to have actually taken a medical history on 28 August. The plaintiff's counsel submitted that the signature may well be that of Dr Dixon although it was not clear and made the point that Dr Dixon himself had given evidence that the first history he had taken was when the Workers Compensation Form was signed. 83 Whilst not determinative of the case it does seem to me that the plaintiff having tendered the San records, they are before the Court for all purposes and the Court is entitled to hold that these notes were notes made by Dr Dixon. Whilst the signature is not altogether clear, it is very likely to be that of Dr Dixon when seen in context with the notes which precede this section and the note which follows this section. Evidence given by Dr Blum 84 Dr Blum's first formal examination led to his diagnosis of the plaintiff having a very stiff lumbar spine with severe paravertebral muscle spasm but no other objective signs of damage. She had a lot of straight lumbar spine lordosis but there were no major lesions present. The significance of the lumbar lordosis was that there was something going on in the lumbar spine and the muscle spasm was an indicative type of situation. There is normally a curve inwards in the lumbar region which is called a 'lordosis' and the loss of that lumbar lordosis is caused by that muscle spasm. Whilst it is not impossible to fabricate this, it is not the sort of thing people can fabricate easily. 85 During the time when the simulator was trialled externally following the implantation the plaintiff appeared to get good relief of her pain although not complete relief. Following the permanent implantation he saw the plaintiff in July 2001. His best recollection was that the plaintiff had improved as at the time when the stimulator had been permanently implanted having about 60 percent reduction in the pain. However when he saw her in July 2001 her improvement was something less than that, having reduced to about 40 to 50 percent. It had dropped effectively in the order of 10 or 15 percent from the improvement apparent immediately in the early stages after the implantation. Evidence given by Mr Olsen 86 The plaintiff's husband, Mr Olsen gave evidence. 87 Mr Olsen is currently unemployed. From 1990 until 1996 he lived in New York with his wife, they having been married in 1987. He worked on Wall Street. Upon the families later return to Australia he sought employment with Tullett and Tokyo, the company with whom he had been employed in the United States. In answer to the question as to what his role was that company in Australia was he said: "Just consulting, I was not…full on, trying to find a position for me and I was basically helping out with whatever I could fit in as far as trading or broking". [transcript page 150] 88 He remained with the same company until late 1988 or around then and his position had remained the same as a consultant right through. 89 His evidence was that prior to 4 August 1998 his wife had excellent health. Although he knew that she had hypothyroidism, that had never become a problem the whole of the time he had been with her. 90 Mr Olsen gave evidence to the following effect: "Q. Prior to the 4 August 1998 to your knowledge had your wife been involved in any accident ? A. Nothing that I can remember ." [transcript 151] 91 On his evidence his wife had not prior to 4 August 1998 made any complaint to him whatsoever in relation to any back problems. 92 Mr Olsen gave evidence that on 4 August 1998 he was at home entertaining his parents-in-law and at about 10.00 or 11.00 am he received a telephone call from his wife who said she had had an accident and asked him to make a doctor's appointment for her with Dr Kucera. He made that appointment. He received another telephone call from Mr John arselle.Parselle. He informed Mr Olsen that there had been a problem in the office and that his wife had had a fall. He said that he believed that Mrs Olsen had contacted Mr Olsen and was on her way home. He said that he was a bit concerned as to how she was and that she did not look too good. He asked Mr Olsen to keep in touch and let him know how Mrs Olsen fared as soon as he could. 93 Mr Olsen's evidence was that his wife then arrived home and he drove her to see Dr Kucera. He was present during the examination. He heard the conversation which occurred in relation to the examination and history. His wife had told Dr Kucera that she had fallen down a flight of stairs and landed on her back. His wife had pointed to the spot on her back. She had said that she had been carrying some stock in her hands and slipped and landed on her back. He did not recall Dr Kucera writing notes. Dr Kucera examined his wife and he stayed during the whole examination. He knows that the notes of Dr Kucera record that there was no incident mentioned at the time, or something to that effect, and found out about that quite some time down the track he thought when they had attended the arbitration hearing. 94 Dr Kucera gave him the certificate of inability to work exhibit P14. 95 Mr Olsen gave further evidence that every morning thereafter the plaintiff had complained of a pain in the lower portion of her back. He noticed that it was getting worse over the first week and it deteriorated over the fortnight, becoming drastically worse. [transcript page 156] 96 Towards the end of August he was watching television on Saturday morning with his children when the plaintiff came crawling through the door crying. She said that she could not move and was in pain and he drove her to Hornsby Hospital. When they arrived he was there with his children and a history was taken. He believed that he had given the history to the junior nurse in casualty. His wife was flat down on her face at the time. His children were all over the place and he was endeavouring to watch his children as well as his wife as well as to give the history. He gave evidence to the following effect: " Q. What did you tell them in relation to the history? A. Well there is not much I could tell them about what would (sic) happen. She had come through the door, and I had to give them a description of the sudden onset of what the problem was. I just gave it to the best of my ability. They said do you know why it happened and I said yes I did. It was very, she had a fall in the office a couple of weeks ago and as far as I know they would have written that down." [transcript 157] 97 He had not seen anything being written down at the time as he was too busy holding his wife and endeavouring to attend to his children, particularly his son who was so much out of control at that age that he took 100 percent of Mr Olsen's attention. 98 Mr Olsen gave further evidence of having continued to visit his wife while she remained at Hornsby Hospital and having been there for very long periods. His evidence was that his wife was heavily sedated with morphine. He gave the following further evidence: "Q. Over a period of time did you speak anyone else about the circumstances of the accident at the hospital? A. At the hospital, do you mean how it happened? Q. Yes? A. At Hornsby Hospital nobody came to visit so I didn't speak to anybody about that as far as, a couple of doctors would turn up which were on duty I think and they would ask me, I think Cook brings a bell. Dr Cook, I told him she had a fall down the stairs. Everyone wanted to know the full story but I cannot recollect. Q. Do you recall Trudy speaking to anyone about the circumstances of her accident? A. No I don't remember it. She was just in ga ga land on a morphine trip. She was in a lot of pain." [transcript page 158] 99 Mr Olsen gave evidence that he accompanied his wife when she was admitted to the San. He was asked whether he or his wife had a conversation about the circumstances of the accident [on or about arrival]. His answer was "No not to my recollection." 100 On the day when his wife had been transferred to the San he had stayed with her the whole of that day and that night. Mr Olsen gave evidence to the following effect: "Q. In relation to all of that day and all of that night do you recall yourself or Trudy giving any history to anyone? A. No, the history came with us I believe. [transcript 159] Q. When you say that did you have a file with you? A. I never saw one but as far as I was aware I didn't do anything at all, everything was prearranged by the doctor at Hornsby Hospital to the casualty at the Sanitarium when we arrived. Basically they had done everything. The only thing I had to do before they would let us leave from Hornsby was to get the compensation form filled out and sent back to the company. Q. As far as the compensation form was concerned were you present at the time that it was completed and signed by Trudy? A. There were staggered portions of it. I could not say I was or was not. There were conditions where she could not be competent, coherent while she was on the morphine. It was actually done over two days. The last thing I did was pass it on to a Joanne Lovett to pass it to the boss. She was the one who delivered it anyway…" [transcript page 159] 101 His relationship with his wife since August 1998 had had its ups and downs and had been a rocky road "sort of thing". He gets along extremely well with her. 102 Broadly his evidence was that his wife had grave difficulties in generally looking after herself. He had cared for her in whatever way he could at all material times and had at the same time, looked after the children and the household duties. Naturally the nursing assistance which the plaintiff had had over a period of time would have lessened the burden upon him. However that burden had remained very heavy throughout and was continuing. Mr Olsen's employment circumstances 103 Mr Olsen gave the following evidence: "HIS HONOUR: Q. Between the day when you say that your wife and you went to see Dr Kucera on the 4th August 1998 and today do I understand that you have gone to work or been basically looking after the children the whole time without a break? A. I have not had a break. I have basically been looking after her and the children full time. Q. In relation to consultancy that I gather you had, I think you told me and correct me if I am wrong, that while your wife's parents were due to be in Sydney and she would be still working you managed to make arrangements so you would not have to go to work. Do you recall saying that? A. That is right. Q. Do you mean that you used to go away from the house to a particular place where you worked? A. I tried to do some work from home but it didn't work. The business I am in it is a confidentiality business dealing with fifteen hundred banks, it didn't work. The guy who employed me did me a favour when I came back – Q. Let us take the period before your parents came to Sydney a little while before the birthdays and so forth. It is a time when you made arrangements to be away from work to be with your parents in law. As I understand your evidence your wife is fine and doing lots of things and looking after the children. Monday morning at 8 or 9 o'clock do you drive to a place of work. What would you do? A. The general thing is I would go to work. Q. Where was that? A. In the City at the Hunter Connection in Town. Q. Would you be there, this time I am talking about is before the birthdays and so forth, all week 9 to 5 or 8 to 6 or I don't know if you kept barristers hours ? A. Very strange hours, basically we would try and entertain clients, banks, three nights a week. Because I am a senior consultant I didn't have to really do that. I did spend considerable time coming home and looking after sporting duties. I tried to put something into the community. I tried to be at home at a reasonable hour. Q. You know the time I am talking about before the birthdays? A. Other than that I would not do a real lot, just working 9 to 5. Q. Except when you came home? A. To help out with sporting clubs. Q. As between that circumstance where I gather you were at work most of the time except when you came home from time to time to go with the kids to see sporting activities and so forth as between that life which you had and the life you had after you say you went to Dr Kucera, do I gather from that time when you say you went to Dr Kucera until today you have never gone back to the old Monday to Friday mainly at work? A. No, I tried. I had a break at one stage but I just could not do it. MAXWELL; Q. When you say you tried what did you actually do? A. Well I tried to contact the employer to see if there was a possibility of my working again and he basically said no. I had tried other people in the business but they had basically said no because my business, you are in it ten years, I was getting a bit long in the tooth. [transcript page 161.15 - 162.28] 104 Later Mr Olsen gave evidence to the following effect: "Q. Roughly what period of time was that, I mean in general terms, a year, two years, six months, any -? A. It might have been, started - you have probably got the paper work in front of you - when she had the facet joint done by Professor Cousins and she came out and she was cut all over the place and he requested one. I believe that might have been in March of 2000. Don't hold me to that. And that carried on right through there until she had another episode where she had a fall and in that period of time doctor Drew Dixon asked to keep the nurse on for supervision for her and help her with her personal hygiene and we didn't lose any time. Any time we ever list is when I had an argument with the insurance company saying we are stopping the nursing and I've gone back and they have promised it to me and I have had to ask for it. Basically been on and off until she had the last operation, the big one, and they wouldn't give us a nurse and I had to get on to the insurance company and I think it was - HIS HONOUR: I think you have given me some detail? A. It was basically pretty much all the way through. She did require one to help her. Q. During the period that expired between the date when your evidence is, as you understand it, she had this accident and fell down these stairs in August 1998 and today, have you ever attempted to obtain some sort of job so that with income that you might earn somebody could be around the house to assist the children and otherwise -? A. Yes I have, numerous times but the only thing I have fallen short on is the career that I've been in for the last 20 odds years, is the only thing I know. They can't entertain the fact that the hours I am requesting of them it's not a part-time job. I did try to get the night shift with a different company which I had actually worked for in Tokyo at the time and in London and they said, "Look, if something comes up you're first on the list" but it never eventuated and then we went into provisions for my wife, she needed more attention with me and the facet joints and so on and so on. She had three major things over that period of time. Q. How much of your time has been spent trying to find some form of employment for yourself. For example, have you seen hundreds of possible places where you could work or only one or three or 10? A. I would say at least 15 to 20 over the period of two years. I have sent things in writing, contacted companies. I have pursued banks and that is probably the only avenue of my field I can work now, that I can work for a bank. Once again I have to be there and it's a 24 hour market business that I'm in and I have just got to be there. I can't go in and let them down because it's my reputation on the line and I've got to be in the right frame of mind as well if I'm turning around billions of dollars a day I've got to have my marbles together. Q. Do I gather that it's now something like between early August 1998 and the present that you therefore really haven't worked? A. Yes, exactly. [transcript page 179.13 - 180.18] 105 Mr Olsen accepted in cross-examination that he had been very active in the matter of locating and contacting potential witnesses and as recently as the very day on which he was giving evidence, had made multiple telephone calls for example to Ms Lovett. [transcript 166] 106 Mr Olsen gave evidence to the following effect: "Q. With regard to her excellent health, will you accept from me that Dr Kucera's notes contain a diagnosis for 1997 in July of her suffering from panic attacks, do you know anything about that? A. No I don't. Q. Nothing at all? A. Nothing at all. Q. Did she ever complain to you around about July of '97 of episodes of tingling in her hands and below her knees? A. No. Q. And feeling faint? A. No. Q. And having poor sleep leading to very severe tiredness in the morning, any complaints like that? A. No, nothing. Q. She was in excellent health, was she? A. Regarding 20 years, yes." [transcript page 168.7 - 168.29] 107 Mr Olsen accepted under cross-examination that since his wife had first made a claim for workers compensation, he had made numerous telephone calls directly to the insurer. Albeit something of an exaggeration, mention was made of thousands of such calls. [transcript page 169] 108 Mr Olsen gave evidence to the following effect: "HIS HONOUR: May I ask the question, I was just wanting to ask about the move, that you have just moved the whole household, is that to Queensland to your family's-- A. No to my sisters place. Q. When did the move take place? A. It was a period of time between late November and December, early December. Q. Last year it was? A. Yes. Q. Just passed? A. Yes. Q. And are you able to say when you moved there, that you moved there with the particular intent to be there only for a short time, to be there permanently? A. It was for a short time, we knew that this case was coming up on this date and you know, just to give everybody a break it was the school holidays and the objective was to get everybody to have clearer heads and forget about it and to make my wife comfortable, my children comfortable and just generally get a break away before, because we knew it was a big burden on us all; and plus by sister was going to look after the children whilst we were down here attending this matter, and we have no other family. It was the reason for going in that direction. Q. For example, did you have your own furniture at Cherrybrook? A. Yes we did. Q. What happened, for example, to all the furniture, did it go to Queensland? A. They are storing it for us. Q. There is storage in Queensland? A. Yes. Her husband has got a trucking firm and a storage company so he is storing everything and he basically did it free of cost for us. Q. And what about schooling, how -? A. They are on late and at call sort of thing to go back. My daughter is booked to go to Hills Grammar and my son to go to Gerald Public School and they have got late registrations booked. [transcript page 171.28 - 172.19] 109 Under cross-examination, Mr Olsen repeated that in his presence his wife had told Dr Kucera on 4 August 1998 that she had had a slip on the stairs and fell down on her lower back. Insofar as the doctor's notes were concerned where she had written "Sudden onset of lower back pain 2 days ago" he was asked whether he had seen or heard anything on that day that could explain in any way how Dr Kucera came to write that. His answer was "Nothing whatsoever." Mr Olsen gave evidence to the following effect: "Q. It goes on, "No precipitating factor." Again I ask you, did you see or hear anything in that consultation which could have led your wife's general practitioner to write those words? A. No. Q. The plain fact is there wasn't one syllable mentioned in that consultation by anyone concerning an accident, correct? A. Not correct. Q. Do you say that when your wife was checked into the Hornsby Hospital you were there? A. Yes I was. Q. And did you hear anyone giving any doctor or nurse an account of how your wife came by her back problem? A. No I don't. They were all sharing the duties basically in casualty. I can't remember it. Q. So you cannot remember anyone giving your wife's history to anyone? A. The only one who gave history was me. Q. That is what you said in chief, isn't it? A. Sorry. Q. That is what you said when you were being questioned by Mr Maxwell? A. That's correct I think, yes. Q. You gave a history as you put it to a junior nurse at Hornsby, you personally? A. That's correct. Q. And what history did you give? A. Exactly what she asked for which was what happened to bring this on. Why she is lying flat on her face. Q. What did you say? A. I explained the circumstances of that morning and she said "is there any other reason why this would have happened" and I said "she had a fall in the office". Q. So you told a nurse on the day she was admitted to Hornsby that she had had a fall at the office? A. That's correct. Q. You know what the notes say, don't you, the Hornsby Hospital? A. I have been told, yes. Q. You have read them too, haven't you? A. No, I haven't read those notes. Q. What were you told? A. There is conflicting dates. Q. Did any doctor speak with your wife on that day at Hornsby in your presence? A. They, what you call a trainee doctor, what do you call them a - they are not a full doctor they are a - Q. Was the doctor doing what you assumed to be an internship? A. Intern that is the word I'm looking for. To an intern doctor who was in casualty. And I said could I see a proper doctor and she said , "No we only have interns in casualty." Some had seen her in some stage, a specialist so there would have been three, I would say three or four people use the file over the 10 hours I have been there. Q. Did you hear your wife give or did you give to any such doctor of whatever qualification a history of a back pain? A. I have just told you, I gave her or the lady, the young nurse there the history. Q. Did you hear anything that could have led the following to be recorded on page 1 of tab 13 of the defendant's document, "History of present illness, 35 year old female, three weeks ago sudden onset of lower back pain, cause unknown, woke up with it. Seen my local medical officer." Did you hear anything that could have given rise to that? A. No way in the world. Q. Well, you see where it says doctor Kuoh at the top? A. Don't know that. Q. Means nothing to you? A. Means nothing to me. Q. What about half way down the page on the same day, 22.8. 1998, Dr Kuoh? A. I don't know the name. Q. Did you hear anything said to anyone that in your view could explain this entry, "Three weeks history of low back pain with right buttock pain and interior leg pain down to toes. Much worse, now unable to mobilise. No sphincter disturbance. No history of injury." Did you hear anything that in your mind -? A. I didn't check the report, no I didn't hear anything. Q. Were you ever there when she was being attended to by a physiotherapist. You spent a lot of time there, didn't you? A. A physiotherapist? Where are we talking about?. Q. At Hornsby? A. Hornsby Hospital as far as I'm aware she didn't have a - saw a physiotherapist that gave her treatment. She wasn't in a condition to have treatment. So if there is one I would like to know about it ." [transcript page 173.57 - 175.54] [emphasis added] 110 Mr Olsen was asked questions relating to his having been with his wife when she left Hornsby for the San. Mr Olsen gave evidence to the following effect: "Q. Were you with her when she left Hornsby for the San? A. Yes I was. Q. Would you agree that -? A. I had to sign her out. Q. You see the entry on 28 August? A. Yes. Q. "Patient looking well, alert and orientated at the time of transfer"? Do you agree with that? Q. No I don't. Q. Just that is just totally wrong, is it? A. Are you asking me, yes, its totally wrong. Q. And -? A. She was still lying on her face. Q. You mentioned that you had spoken to a Dr Cook you thought, is that right? A. I believe he was the specialist they requested to come to the Hornsby Hospital. Q. Were you ever there when he saw your wife? A. Yes I was. That was the guy I'm talking about. Q. You see here on page 7 of tab 14 consultants report Dr Cook, "Symptoms now three weeks, nil relevant past history onset acute, no event." Now when you were present and Dr Cook saw her did you hear anything that could have led him to write as he did? A. No. Q. I take it you would deny having heard your wife telling the physiotherapist that she had had a fall downstairs three to four months ago with no ill effects? A. There is no such fall. Q. Were you there when your wife signed a claim form for worker's compensation? A. The claim form there was two days in there which se signed it. I couldn't swear on a stack of bibles that I was there when she signed it. I realised though that Joanne Lovett was the one that came back to get the form and take it back to the office for John Bruce Smith. I did say I can't recollect if she signed it or not. I really couldn't tell you. If you asked me honestly do I think she could have signed it, the answer would have been probably yes, at that stage, because by that time I think she was just turned around and come off her face. She was lying down before that and I think she was starting to talk again to the kids and - so really don't know. Q. You didn't have any health insurance cover for your family at the time of these events, did you? A. No." [transcript page 176.36 - 177.36] Evidence given by Ms Lam 111 Ms Lam who was in 1998 employed as an accountant with the defendant gave evidence. She first heard of any suggestion that the plaintiff had had an accident when she read an e-mail from a colleague sent to everyone in the office advising employees that Mr Olsen had said that the plaintiff was in hospital. 112 Sometime after this she asked her husband to fix the missing strip of the tears. Her husband is a motor mechanic. She asked the sales manager for approval to this and her husband fixed the strip and was paid out of petty cash $100. These had been missing for many months before. She could not recall whether there was or was not a difficulty at the same time with the lighting being dim. Evidence given by Mr Bruce-Smith 113 Mr Bruce-Smith commenced as finance controller with the defendant in November 1997 and in May 1998 took up an offer to transfer to the United States with Identix Incorporated, the parent company of the defendant. He remained the finance controller even whilst he was in the United States. From May 1998 up to August 1998 he was more often in United States and primarily there until October 1998. 114 He recalled that the plaintiff had been provided with a petty cash float in terms of her job as office manager and believed the sum at which the float was maintained was $500 or thereabouts. 115 He did not think that as office manager in 1998 the plaintiff would have been obliged to seek authority from him in the United States for expenditure of an amount of $100 on an office repair. He gave evidence to the following effect: "Q. What do you say after that when you went to [the defendant] as regards your probable reaction had any matters such as [faulty] stair treads or faulty lighting been brought to your attention? A. I would have, for a hundred dollars, I would have said repair it" [transcript 190] 116 In relation to any request for repairs from the plaintiff in relation to the lighting in the stairwell and the stair tread his evidence was that he had no recollection. He could not positively say that there was no request by the plaintiff but simply did not have any recollection. 117 Mr Bruce-Smith gave evidence that at the end of August 1998 or thereabouts Mr Parselle who had been the managing director, left the company. Mr Bruce-Smith had been overseeing some of the duties which Mr Parselle would normally have had as at 30 August 1998. 118 Mr Bruce-Smith had signed the Employer Declaration which had been dated 26 August 1998 [Exhibit P6] at the time he was in the United States. He had not been present when the accident occurred. His evidence was that he would have filled the document out on the basis of information given to him. He spoke to Ms Lovett as he recalled it. No one had telephoned him and told him that there had been an accident. His sole information about the matter had come to him some three or four weeks thereafter when he had been asked to sign. He had been acting on behalf of the company where to the best of his knowledge others had told him that there had been an accident and he had been alerting the insurer to that fact. He did not believe that he had spoken to Mr Parselle at any time about the accident on 4 August 1998. 119 His evidence was that in early 1998 and up to August 1998 he was generally aware of the condition of the office as he came back to Australia at times during that period. The basement lighting was sufficient for the purposes of it being used as a garage and for storage. The lighting was poor on the internal staircase from the basement to the reception area in terms of being dimly lit. It was sufficient to walk up and down the stairs but he would not like to think that it was sufficient to read a book by. 120 It had been his practice to speak with the plaintiff on a weekly basis if not more, in keeping in touch with the Sydney office. The plaintiff would have telephoned him about a whole host of things. He was not in a position to deny the proposition that the plaintiff sent him an e-mail in the period leading up to 4 August in relation to repairs to the stairs and the lighting. He could not call the plaintiff telephoning him to the effect that she needed to get some issues sorted out in relation to repairs, lighting, stairwell-repairs to the stairs. 121 Mr Bruce-Smith was asked what he said in answer to the proposition that takeover issues in relation to group affairs at the time had the effect of, in any way, straining the company's resources to the degree that they could not replace fluorescent bulbs or a stair strip in Sydney. His evidence was that he did not believe the matter would have come into question. On his evidence the plaintiff did not need to get authority from him in the United States for the expenditure on that sort of thing of an amount of in the order of $100. Evidence given by Ms Joanne Lovett 122 Between 1998 and early 1999 Ms Lovett had been marketing communications manager for the Asia-Pacific region of the defendant. She knew the plaintiff as a workmate and friend and had a good relationship with her. That relationship had never changed. 123 Ms Lovett as at 4 August 1998 was in California. She was there for a sales conference being away from Sydney for about 10 days. 124 Her evidence was that a "couple of months" prior to August 1998 the plaintiff had had a conversation with her concerning a fall. On her evidence the plaintiff was obviously then in pain. Her evidence was: "I don't remember the exact words, but I do recall Trudy clutching her back at times as if she was in pain and we spoke about the fact that it was in relation to her slipping on the stairs previously". 125 On Ms Lovett being asked which stairs she was referring to, her evidence was that she thought it was the stairs leading down to the basement to the car park. [transcript page 207] 126 As a result of the plaintiff telling her this she suggested that the plaintiff see a doctor and have a report filed about it in case there were problems down the track. [transcript 207] Under cross-examination in relation to her recommendation that the plaintiff see a doctor, her evidence was that the plaintiff said to her "I will be okay" and that she had said to the plaintiff "Well you don't look okay, you should see somebody about it." [transcript 216] 127 Ms Lovett gave evidence to the following effect: "Q. Just reiterate for us, if you would, what you said to her about the fall she described and the injuries she was exhibiting? A. What I said, exactly what I said to her? Q. Yes. A. I said that she looked like she was in pain, she should see a doctor and we discussed the fact that the stairs were slippery" [transcript page 208] 128 Months after this when Ms Lovett was in the United States she made a telephone call to the plaintiff to see how things were going in the office. The plaintiff told Ms Lovett that she had fallen on the stairs. She thought that she asked the plaintiff if she had seen a doctor or was going to see a doctor. She thought that the telephone call had taken place on about the 11th August. [transcript page 209] 129 When she returned from the United States she saw the plaintiff who appeared to be in a lot of pain and was close to tears on a number of occasions and was walking awkwardly. She saw the plaintiff both at Hornsby hospital and at the San. 130 Under cross-examination she was closely tested as to whether the plaintiff had said to her that there was an accident in early 1998. Her evidence was that she was quite confident of this fact. From memory the occasion when the plaintiff had spoken with her earlier in 1998 was probably closer to April or May. 131 Under cross-examination it was suggested to Ms Lovett that she was mistaken about any conversation with the plaintiff in relation to a fall in the early part of 1998. She did not think that she was mistaken. She was first asked to recall any fall the plaintiff may have had in early 1999 and had given a statement by tape-recorded interview to Commercial and Private Investigations by telephone. 132 Ms Lovett agreed that the stairs as at August 1998 were slippery, that the lighting was poor and that there was a tread missing on one of the stairs. She had herself slipped but not fallen on those stairs. 133 Ms Lovett's evidence was that she had probably taken the claim form exhibit P6 to the hospital. She couldn't remember whether she had retrieved it or whether Mr Olsen had brought it back to the office. On 27 August she had sent a copy of it by facsimile to Indemnity Corporation. [exhibit P17] She could not recall the forms very well. She could not recall whether she was the one who arranged for Mr Bruce-Smith to sign the document before it was sent off. Insofar as the document included the question "To whom was the accident reported?", it was probably her own handwriting where it had been completed "John Parselle". 134 She could not recall whether before these words had been written in, she had spoken to Mr Parselle. She would have taken the plaintiff's word for the information on the document and would have looked at it. 135 She was not certain as to when Mr Parselle had left the company although she recall that he was not involved in the sales conference in the United States. Ms Lovett gave evidence to the following effect: "Q: Are you sure about that? A: Not 100 per cent sure, no, but I don't think he was. I think he left a couple of months prior to that. Q: A couple of months prior to August? A: I think so. I can't recall, I'm sorry. I know that he wasn't involved in the sales conference that we had in the US. Q: Before you went to the sales conference, were you aware of the fact that he was to leave the company? A: Yes, I think he had left the company before I left. Q: Can I suggest to you in fact the he was still there? A: Oh, okay. Q: As at August 1998? A: He may have been. Q: And still there up until the end of August 1998? A: Okay, he may have been. Q: You just don't have a recollection? A: I don't, I'm sorry. [Exhibit P17 document from Ms Lovett to Indemnity Corporation dated 27/8/96, together with annexure comprising four pages, tendered, admitted without objection] His Honour: Q: Miss Lovett, in relation to the evidence that you've given, as I understand the position, you seem not to be very clear about Mr Parselle in terms of when he was and was not a person that actually left, it being suggested to you that he was there until late August, whereas a few minutes before you thought he had already left and so forth. I don't know in your average day in Sydney when, if he would be there, you would see him or if he wouldn't be there, whether you would know of his whereabouts or not. As between that circumstance of your state of knowing or being unsure about him, as I understand your evidence you've said you were quite sure that Mrs Olsen told you some months before about this fall on those stairs. Are you able to help me, firstly, in relation to the Mr Parselle side of the exercise? Why would you perhaps be not certain or clear about his position at about August or late August and on the other hand, be quite clear of what Mrs Olsen had told you about the earlier fall she had? A: Well, we knew a while before John left that he was going to be leaving and he had a property south of Sydney and he would often work from there and then come into the office a couple of days. So he wasn't there full-time. So there was a transition period with John leaving the company. Now, I can't recall exactly when he stopped working with us full-time and how long that transition went on for. It was a year where I had I think three bosses in one year, so the management turnover was quite high at that point. There were changes going on with the takeover of the company in America. John was involved in that to a degree, I guess. So the transition was over a couple of months period, so when you ask me whether he was still with the company, he was probably still with the company as a consultant, but not as managing director because the company in the states had taken over. So the transition was a couple of months long. Q: Is there any reason that you can put forward as to why you feel so confident about Mrs Olsen having told you some months before about the other fall ? A: Because I was concerned for her. She appeared to be in pain. It wasn't constant pain, but she did appear to be in pain and I was concerned for her . Q: Can you just tell me where you were standing when she spoke to you first about that and that sort of thing, the details as you recall them? A: I don't remember the exact spot I was when she first told me, but it would have been on the ground floor of our office, that is where my office was and it was probably on that level. Q: In relation to the concern that you've said you had, I know you may have told us about this before in your evidence today, I just want to understand it clearly again, what exactly, as far as you can remember, led you to having that concern about her at that time? A: What led me to my concern? Q: Something she said, something you saw? A: She appeared to be in pain and I asked her what was wrong and she told me that it was her back, relating to the slip on the stairs that she'd had . Q: When you say "she appeared to be in pain", I know that may suggest a clear impression of what one means when one says "X appeared to be in pain", but there are probably lots of ways in which one could interpret that statement or those words. What do you mean, as best you can now recall, when you tell me that she appeared to you to be in pain? A: It was flinching in certain positions , it was the fact that she wasn't as bubbly and happy around the office as she usually – as she had previously been. She seemed depressed at times. This is just my observation. But it was the flinching every now and then with movements with her back ." [transcript page 214.17 to 216.9] [emphasis added] 136 It was put to Ms Lovett under cross-examination that she having been asked in March 1999 about the fall, was probably confusing the August 1998 fall with her evidence as to the earlier fall. In answer to this proposition she steadfastly maintained that she was not confused. 137 Sections of the typed transcript of Ms Lovett's tape-recorded telephone call of 17 March 1999 with Commercial and Private Investigations were admitted into evidence in re- examination. This interview included the following: "Q. Did you ever witness Trudy Olsen falling down the stairs at Identix? A. I didn't actually see it with my own eyes, in fact there were two falls that she had, and the first fall was a couple of months previous to the August fall and I saw her not long after the accident. I think I was the one, along with one of the other guys who told her to go to the doctor to have herself checked out. The August fall that she had, I was here in the states, but I heard about it. I wasn't actually there for the second one, but I was there for the first one. Q. The first fall, you would say that it was possibly in about June or July 1998? A. It was prior to that, to be honest I can't give you the exact date, but possibly in the first three months of that year. Q. So in January, February or possibly March? A. Yes. Q. What did you witness? A. I just witnessed the way she was walking. She was also holding her back. It was obvious that she was in a lot of pain. Q. Did she mention to you which flight of stairs she fell down? A. She said to me the stairs leading to the car park. Q. So the stairs leading down to the basement? A. I assumed that was the flight of stairs she meant. Q. So she didn't specifically take you to the stairs and show you where she had fallen? A. No. Q. After the accident you said she was walking around clutching her back, do you recall which side of the back she was holding? A. No, I don't. I would only be guessing." [Pages 4 and 5 from the transcript of the interview with Ms Lovett] 138 In re-examination Ms Lovett was asked whether on the occasion in August when she had learned, whilst in the United States, of the plaintiff's second fall, anything had gone through her mind. Her answer was: "When I heard that she had fallen I thought ' Oh no, not again' and I thought to myself that maybe she had a problem with balance, a middle ear thing and that's what had caused the two falls". [transcript page 220] 139 Ms Lovett also gave evidence in re-examination that at the time she had the telephone call whilst she was in the United States she was with another employee Ms Monaghan, who was much shorter than the plaintiff, and that Ms Monaghan, in relation to the matter had, referring to the plaintiff, jokingly said to Ms Lovett: "That's what happens when you've got lovely long legs". Evidence given by Mr Kosyfas 140 Mr Kosyfas was in the late 1990s employed by the defendant. His job included handling stock principally compromising the touch lock. One of his functions was to carry out quality control checks before the touch locks were despatched from the premises. He would bring the touch locks up from the basement to an office on the ground floor where he would perform all quality control and they would be despatched from the ground floor. 141 On occasion, but only rarely, he would have to transport these goods downwards. If he found a faulty unit there would usually not be enough space on the ground floor for those touch locks to be stored, and so, on occasions, some would be taken back down into the basement. However most movement was upwards from the basement. For that purpose in taking the goods from the cage area in the basement up to the ground floor, he used a tilt trolley which had 2 pneumatic wheels. Using a trolley he would go up at a step at a time, lifting the trolley as necessary. 142 On occasion he received assistance from the plaintiff who would help him. She would carry the items up manually. 143 He had never witnessed the plaintiff falling whilst engaged in that work. He gave evidence to the following effect: " Q. Do you have any recollection of ever seeing her sitting on the stairs during the course of one of those operations, can you remember any occasion when you saw that? A. To say a hundred percent no, I can't remember her sitting on the steps. The day it happened I was never told about it and only weeks after that I was told what had happened and I was told that I had seen her on the steps but I can't say a hundred percent that I remember that. Q. Well, at the time you were told some months after the event, did you have any independent recollection of seeing her? A. I don't. .. I can't say a hundred percent that I saw her sitting on the step. Q. Do you have any independent recollection of seeing her sitting on a step as opposed to being told the suggestion? A. No." [transcript page 225] 144 It was put to Mr Kosyfas that there were occasions when stock was delivered to the ground floor because the truck was not able to get access to the garage. He disagreed. On his evidence there were steps and it was the highway at the front so that there was no place for a truck to stop. On his evidence units were always unloaded at the back on pallets. 145 Mr Kosyfas gave evidence to the following effect: "Q: On that day can I suggest that you were asked by Trudy Olsen to carry some of this stock down and put it in the caged area below, do you recall that? A: I can't recall her telling me that particular day but I had been told on numerous occasions to move stock so that is possible. Q: In relation to the stock that was being moved, can I just point out a box over here? See this JEC box? A: Yes. Q: It is the same? That has been identified previously. I am not suggesting – can I suggest that the type of boxes that you were transporting on that particular day were very similar to that box? A: Approximate size, yes. Q: And in relation to that, the normal practice and what took place on this particular day was Trudy Olsen would pick up a couple of boxes and then take them downstairs? A: Yes, I guess so but-- Q: In any event, just in relation to that box, that was the size or style of box you were using in the Finger Scan business? A: Yes very similar. Q: And in relation to the stairs that moved from the reception area into the basement, would you agree there are about 6 stairs to start with, then a landing and then another 6 or so stairs? A: Yes. Q: And that stairwell turns in on itself, goes back the opposite direction after the landing? A: Yes. Q: And that at least at 4 August 1998 you knew in relation to those stairs that there was a slip tread missing? A: It was pointed out to me after the time Trudy had stopped coming to work, yes. Q: The slip tread trade we were talking about that you were shown after the event was replaced some time later in that year, is that so? A: Yes. Q: And will you agree with me that round about August 1998 the lighting in that stairwell was very dim? A: Coming from the garage it was no dimmer than the garage. It was not brightly lit, I can say that. Q: Now whilst you do not have a recollection of seeing Trudy Olsen on the stairs, is it fair to say you cannot deny emphatically that you saw her sitting on the bottom of the stairs in the early part of August 1998. A: Yes I cannot deny it. Q: See, what Mrs Olsen says is that you were coming down the stairs after her and she was sitting at the bottom of the stairs and you said something like, "What happened to you?" She said, "I fell down." You said, "Are you alright?" And she said, "Yeah, I think so." You cannot deny that conversation, emphatically deny that conversation took place, can you? A: I have no recollection of her ever stating to me she had fallen on that day and, no, I can't emphatically deny that conversation did not take place. Q: She was not known to you as a person that complains was she? A: No. We didn't work that closely together. Q: Do you recall if Mr Parselle was there at the time, at the time of the fall? A: I don't recall. He may have been. He used to work on the floor above us so his comings and goings were not known to me. HIS HONOUR: Q: When you are asked a question about whether or not whether Mr Parselle was there at the time of the fall, I gather is what at the time you have been told was a fall, is that what you understood? A: Yes. [transcript page 226.55 – 228.25] Evidence of Mr Abraham 146 Mr Abraham is a solicitor practising with the plaintiff's firm of solicitors and currently has the conduct of the proceedings. His evidence in chief principally comprised identifying certain communications between the plaintiff or the plaintiff's solicitor's and Dr Kucera referred to immediately hereunder. 147 On 14 June 1999 the plaintiff had written to Dr Kucera asking her to forward all medical information relating to injuries to her back sustained in August 1998 to the plaintiff's solicitors and giving their address. She also requested that the information include medical documentation which Dr Kucera may have accumulated from the plaintiff's hospital stays at the San handicap wanted the Public Hospital. 148 The plaintiff's solicitors had later written to Dr Kucera on 20 July 1999 enclosing the plaintiff's signed authority and requesting her to forward to them copies of any reports which she had prepared and forwarded to the plaintiff's Workers Compensation Insurer. Their instructions, so this letter indicated, were that the plaintiff had been attending upon Dr Kucera for a period of two years before the accident and the plaintiff's solicitors sought a short report from Dr Kucera commenting on whether the plaintiff had any history of pre-accident complaints relating to her back and her inability to work. 149 By letter dated 21 July 1999 Dr Kucera had written to the plaintiff responding to her letter of 14 June 1999 and apparently attaching copies of notes from her file in Dr Kucera's surgery dated since August 1998, including copies of reports of X-Ray and CT scans which she had ordered. 150 A handwritten note from Dr Kucera to the plaintiff dated 27 June 1999 was admitted into evidence confirming that as discussed over the telephone on that day, Dr Kucera enclosed copies of certain remaining notes from her surgery. 151 Under cross-examination Mr Abraham gave evidence that he had taken over the conduct of the file approximately two weeks prior to the hearing. As a result of his reviewing the file it became apparent to him that there was absent any report from the treating general practitioner. He knew that one had been requested but this did not trouble him. Between that time and the hearing he became aware of the fact that the letter from the plaintiff's solicitors to Dr Kucera of 20 July 1999 had not produced a report as requested. No steps were taken by him from that time up until the hearing to obtain a report from Dr Kucera in response to the July 1999 letter. 152 Mr Abraham was asked if there was any reason, forensic or other, why the matter of a general practitioners report was not pursued after he had been put in charge of the file. His answer was that firstly he did not believe that it warranted the cost and secondly, there was the time difficulty and thirdly, they had these subpoenaed documents. He accepted that he was alive to the implications of the entry in Dr Kucera's notes for 4 August 1998. By this he was being referred to the notes insofar as they recorded "Sudden onset of lower back pain two days ago. No precipitating factor". 153 He became aware of this on Sunday 10 February and had also read the preceding entries as he recalled and this caused him no concern. Mr Abraham gave evidence to the following effect: "Q. What do you say were the reasons for not seeking to address the problems raised by that entry between the time you first became apprised of them and this present moment? A. Firstly, the expense, first and foremost - I did not believe it warranted; secondly, the subpoenaed evidence, which I did have; and, thirdly, the subpoenaed documents, and that entry spoke for itself." [transcript 28 February 2002 page 9] Evidence of Mr Young and Mr Rooney 154 Part of the plaintiff's case seeks to rely upon the conduct of the defendant in continuing to make payments of benefits in accordance with the Workers Compensation Act as an admission of the fact of the accident, the date of the accident, the nature of the accident, the fact that the accident took place during the course of employment and of the medical condition of the plaintiff suffered thereby. 155 The defendant seeks to explain this conduct and in this regard called two witnesses: Mr Young, an associate in the defendant's solicitors firm who had had the carriage of the current matter since its inception and Mr Rooney, a technical officer with Allianz Workers Compensation Insurance, who gave instructions to the insurer's solicitors in the matter, having general conduct of giving this type of instruction on areas of strategic conduct of cases. Mr Rooney did not have the day-to-day management in any 'hands on' fashion of individual files. 156 The evidence given by both of these witnesses was consistent. It was to the effect that a forensic decision had been taken to continue the making of the subject payments notwithstanding that in about June 2000 the defendant's solicitors had been able to and had inspected documents produced on subpoenae particularly by Dr Kucera and by the Hornsby hospital. The evidence was that this material was inspected shortly before an arbitration hearing had taken place. By that time approximately $150,000 by way of payments had been made to the plaintiff under the Workers Compensation Act. Mr Rooney had advised the insurer that notwithstanding the significance of the treatment records of Dr Kucera which showed that the plaintiff had not mentioned the alleged incident but rather that she suffered an onset of pain with no precipitating factor, a refusal to pay furthers workers compensation benefits would in his view have resulted in an application in the Workers Compensation Court by the plaintiff. Mr Rooney's advice was that the probability was then that the Workers Compensation Court proceedings would be determined before the common law action such that the possibility of adverse findings of fact before the Workers Compensation Court would mean an estoppel in relation to the accident by a likely finding to that effect by the Workers Compensation Court. 157 Mr Rooney gave clear evidence that the advice which he had been given by the insurer's solicitors was generally to this effect. In making, as he had, the decision to permit the payments to continue, he took into account the advice and his experience in the Workers Compensation field that if weekly benefits had been declined and proceedings had been commenced in the Compensation Court, would likely have been an estoppel which would operate and foreclose these issues being able to be litigated before this Court. This evidence is supported by the written advices which went into evidence as exhibit P35. Evidentiary Issues reserved for decision 158 During the hearing the plaintiff submitted that by reason of admissions said to have been made and said to bind the defendant [see exhibits P6 and P7], the plaintiff should be barred from litigating the cause or occurrence of the accident on the date claimed, the fact that the accident occurred in the course of the plaintiff's employment with the defendant and the fact that the plaintiff was incapacitated as a result of the alleged injury ["the subject issues"]. The ruling was that both parties would be entitled to address this question during final address and that, reserving to the plaintiff the entitlement to pursue this matter in final address, the defendant would be entitled to cross-examine the plaintiff and otherwise to conduct its case on these issues in such fashion as it saw fit. The matter would be the subject of a reserved ruling to be handed down either during final argument or as part of the final judgment. On a later occasion during the hearing, the plaintiff extended its claim in terms of the conduct of the defendant's or its insurer said to amount to an admission to the same effect, the relevant conduct of the defendant's or their insurer now said to include the continued making of compensation payments. 159 Also during the hearing the plaintiff had applied for there to be removed from the record, all of the defendant's medical reports upon the basis that there had been no challenge on damages to any of the plaintiff's medical evidence. 160 The Court's ruling in relation to the question of admissions is that the defendant was entitled to litigate the subject issues. Conduct said to constitute admissions are capable of explanation by way of evidence in the same way as any other informal admissions are open to such explanation. The defendant remained entitled to litigate the subject issues for the reason that the defendant proposed inter alia to call evidence seeking to explain the alleged admissions. But for that approach to the litigation, the defendant would be pre-empted in terms of a threshold ruling as to the conduct relevantly constituting admissions and further, would be denied its day in Court and improperly fettered in its conduct of the litigation. 161 It was inappropriate to accede to the application to remove all the defendant's medical records and reports from the record. However the defendant's have not during the final hearing litigated the plaintiff's claims in terms of her disabilities and her medical condition. For that reason those claims would have been allowed had the plaintiff established that the accident had taken place on the day claimed. Dealing with the case 162 I have come to the very clear conclusion that the plaintiff's case fails and requires to be dismissed for the reason that the plaintiff has not established on the balance of probabilities that the fall which she alleges as the foundation for her case, took place. 163 Having had the benefit of seeing the plaintiff in the witness box over a reasonably extended time, the opportunity of seeing Mr Olsen in the witness box, the opportunity to read the sundry contemporaneous medical histories taken by hospitals and other doctors and having had an opportunity to stand back from all of the evidence in an attempt to follow the whole of the circumstances of the plaintiff and her husband, I am satisfied that she and her husband have not given reliable accounts of what occurred. 164 I am unable to accept the plaintiff as a witness of credit. 165 In contradistinction, I accept as entirely reliable the evidence given by Ms Lovett as to what she was told in relation to the earlier fall and what she observed on the occasion of her discussion with the plaintiff. 166 One begins an examination of the objective facts with the common sense position that anyone who falls down a flight of concrete steps can be expected to tell a number of people about that event and to do so immediately. The first logical person to be so informed would have been Mr Kosyfas. I accept his evidence as reliable. On my findings he was not told about the fall on the day it is alleged to have occurred and it was only weeks after that that he was told that the plaintiff had fallen. He had no independent recollection of seeing the plaintiff sitting on a step (as opposed to this having been suggested to him). There is a world of difference between being unable to emphatically deny a proposition on the one hand and on the other hand having a recollection as to the occurrence of an event. He clearly could not recall the plaintiff telling him that she had fallen. On her evidence she was his assistant in the exercise. The very high probabilities are that had she informed him of this fact, he would be able to recall it. His recollection of only learning of what was said to have happened weeks later has a very confident ring of substance about it. 167 Next there is the circumstance that Dr Kucera was seen very shortly after the alleged fall but her notes make absolutely no reference to that fall. To the contrary, her notes include the words "sudden onset of low back pain two days ago, no precipitating factor". These notes which are before the Court as part of the evidence tendered by the defendant without objection, represent a very significant piece of evidence indeed. One would have thought that it was elementary that the plaintiff would call her treating and family doctor as a witness in her own case. No question of inability by reference to the Supreme Court Rules to call that treating doctor should arise because, regardless of those rules, the Court has power, where appropriate, to dispense with the application of the rules. Having said that I am not satisfied that the plaintiff has in any way, shape or form, provided a sufficient or satisfactory explanation for the failure to call Dr Kucera. Mr Abraham's evidence was totally unsatisfactory if it was being put forward in an attempt to explain the forensic decision not to approach Dr Kucera. During the final address I made quite plain to counsel for the plaintiff that even at that late point in the hearing, it was possible for the plaintiff to seek to reopen the case to call evidence of this important witness. To my mind the rule in Jones v Dunkel (1959) 101 CLR 298 applies so that the appropriate inference is that the evidence of Dr Kucera, if given, would not have assisted the plaintiff's case [per Kitto J at 308, Menzies J at 312]. The rule clearly applies where the plaintiff is required to explain the logical inferences to be drawn from Dr Kucera's notes. It would be natural for the plaintiff to have called Dr Kucera and she might reasonably be expected to have called her. In any event, in the circumstances which obtained, it seems to me quite clear that once Dr Kucera's notes went into evidence, at the very least an evidentiary burden shifted across the bar table requiring the plaintiff to rebut the inferences properly to be drawn from those notes, unless otherwise explained. 168 The principles are generally to be found in Cross on Evidence, 6th Australian edition, paragraph 1215. 169 One then moves on to examine the medical records and histories taken at the Hornsby Hospital and the San. These have already been set out in detail. It seems to me that there is substance in the defendant's general submission that it defies belief that none of these histories referred to the plaintiff falling down the stairs on the occasion in question. The words to be found in the Hornsby Hospital records include: "sudden onset… cause is unknown/woke up with it", "No history of injury. Onset while getting out of bed", "Sciatica pain began three weeks ago-no specific incident", "Had a fall on stairs at work three to four months ago", "nil relevant past history… no event", "had a fall down the stairs three to four months ago." These histories are not only inconsistent with the plaintiff having had the fall on which she sues, but are consistent with her having had a fall three to four months earlier. This of course is four square with the evidence of Ms Lovett as to what she was told by the plaintiff at about that point in time. 170 The medical records and histories taken at the San continue in like vein. Importantly the last entry in the Hornsby Hospital records entered at 1.00pm on 28 August 1998 which was exactly when the plaintiff was transferred to the San, includes the words "Patient looking well, alert and orientated at the time of transfer". One would not expect there to be any particular difficulty in the plaintiff giving such medical history as was necessary upon her arrival at the San. But the notes apparently taken by Dr Singer had no reference to a fall down the stairs at work on the occasion in question but to the contrary refer to such a fall "three months ago". When it was put to the plaintiff that it is clear that on 28 August she appears to have told Dr Singer that she fell down the stairs at work not on the occasion in question, but some "three months ago", her answer was: "That is what it would appear, yes". The other records of the San have already been referred to, again and again referring to the fall three months ago. 171 As to the plaintiff's counsel's final submissions seeking to put that the initial history given at the Hornsby Hospital was then simply perpetuated, it seems to me that the very high probabilities are against such an explanation. Further I accept as of substance the submission by the defendant's counsel that what is fatal to the plaintiff is the detail to be found in the sundry histories. One has to recall for example, the fact that the physiotherapist at the Hornsby hospital had seen the plaintiff during three sessions. It might seem surprising that the plaintiff would not at one of those sessions have made the point that she had fallen down the stairs three weeks earlier. 172 Next one has the evidence of Ms Lovett whom I accept as a reliable witness whose recollection was documented in early 1999. She was quite clear that the plaintiff in early 1998, possibly in the first three months in that year, had told her that she had fallen down the stairs leading to the car park. She saw how the plaintiff was walking and at that time the plaintiff was also holding her back and it was obvious that the plaintiff was in a lot of pain. The reason why Ms Lovett was so confident about the plaintiff having told her about the earlier fall was quite simply because of Ms Lovett's concern for the plaintiff by reason of the plaintiff appearing to be in pain. She was flinching in certain positions. Ms Lovett recommended that the plaintiff see a doctor. The subsequent telephone information from the plaintiff in the call from New York must be weighed in the balance but is of insufficient weight to overcome the compelling documentary evidence to which reference has been made when added to Mr Kosyfas' evidence. The high probabilities are that the discussion in Ms Lovett's call from the United States represented a fabrication by the plaintiff. 173 To my mind the circumstances in which Dr Dixon had the Workers Compensation Form completed logically explain what the plaintiff then told him-the express purpose of the completion of the document being obvious. The history, if such is an appropriate description, given to Dr Dixon in that mode, cannot be accepted as reliable. 174 It cannot be suggested that Dr Kucera's notes do not point up back pain some months prior to the commencement of August 1998. Dr Kucera recorded on 4 June 1998 that the patient had "noticed back pain". She also recorded on 5 June 1998, that pressure on the sacro-iliac joint was causing pain. 175 In the result I am quite clear that the plaintiff has not established on the balance of probabilities that she fell down the stairs in question on 4 August 1998. 176 Amongst the many other parameters which mandate such a finding is the plaintiff's denial of the earlier fall in respect of which Ms Lovett has given evidence. My finding is that such a fall did take place. This finding reflects adversely upon the plaintiff's credit, she having steadfastly maintained that no such fall ever took place. 177 I am quite unable to accept Mr Olsen as a witness of credit. His evidence on my findings was unreliable. My finding is based upon a number of factors, including his demeanour in the witness box. Clearly he has a very strong interest in the plaintiff's success in these proceedings. He was argumentative in giving evidence. His recollection is entirely inconsistent with the contemporaneous medical records. Notwithstanding the fact that his background in terms of work and consultancy is in a particular area, his evidence was that he has not endeavoured to obtain work outside of that area. This, notwithstanding his desire to be present in assisting at home, is very surprising in terms of an able-bodied and apparently healthy husband and father. 178 I come then to examine the submissions in relation to admissions and some other matters. 179 To my mind there is no special significance to be attributed to the suggested failure by the defendant to call Mr Parselle. On the evidence he is no longer an employee of the defendant and is in the United Kingdom. No evidence was adduced from the plaintiff to the effect that he had witnessed the fall. All that one has is evidence given by Mr Olsen to the effect that Mr Parselle telephoned him. The substance of Mr Olsen's evidence as to this telephone call has already been set out. I reject that evidence as unreliable and do so albeit that Mr Parselle was not called. Secondly the plaintiff seeks to rely upon the fact that Mr Parselle is shown on the employers Report of Injury form as being the person to whom the complaint was reported. Here again the failure of the defendant to call Mr Parselle seems to me to be of very little weight in the scheme of things bearing in mind the totality of the evidence before the Court. 180 In terms of the plaintiff's attempt to rely upon admissions, the submission was that admissions had been made by the defendant itself, where Mr Bruce-Smith had signed the Employer's Declaration part of Exhibit P17 and further that admissions had been made by the Workers Compensation Insurer by the continuance of compensation payments throughout and particularly following the insurer having learnt of Dr Kucera's notes. 181 It is common ground that admissions or acts which are put forward as being admissions, are to be weighed against the whole of the evidence. To my mind the signing of the Employer's Declaration is clearly capable of being explained. The document was signed on 26 August 1998. Mr Bruce-Smith gave evidence that he had not been present when the accident occurred and that others had told him that there had been an accident. The point in time at which the document was signed and the emergence only much later of, for example, Dr Kucera's notes, serve to adequately explain how it had come about that the employer's declaration was completed in the way in which it was completed, very early in the peace. 182 The continuance of the payment of benefits in accordance with the Workers Compensation Act has been adequately explained by the evidence of Mr Young and Mr Rooney. Evidence of an informal admission or of conduct amounting to an admission may always be explained. Hunt J in Heuston v Yore Contractors Pty Ltd (unreported 9 March 1992) made plain that in a context where continued payment of workers compensation may be admissible against the defendant in whose name an insurer defended common law proceedings as an admission that the worker was still incapacitated, that form of admission was always "open to explanation by way of evidence in the same way as any other informal admission is open to explanation". The explanation proffered by the insurer is clear and satisfactorily explains how it came about that the payments continued in the circumstances. 183 For those reasons a verdict for the defendant will be entered when short minutes of order are brought in. Costs may be argued. 184 Had I been satisfied of the plaintiff's evidence to the effect that the accident took place upon the date and in the circumstances which the plaintiff alleges, I would undoubtedly have found a verdict for the plaintiff in terms of the cause of action and made a finding of contributory negligence. 185 The employer's duty of care is a very heavy one and is non-delegable:- "The employer has the exclusive responsibility for the safety of the appliances, the premises and system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in the relevant respect the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work." (per Mason J at 687 in Kondis v State Transit Authority (1984) 154 CLR 672) 186 The test in relation to negligence is still that as set out in the case of Wyong Shire Council v Shirt (1980) 146 CLR 40 essentially as follows:- · Was there a foreseeable risk of injury to the plaintiff or a class of person similar to the plaintiff; and · What was a reasonable response to the foreseeable risk of injury. In assessing the "reasonable response", the magnitude of the risk and the cost involved in forestalling the risk should be weighed up. 187 It is clear that the subject staircase had been a hazard for months prior to 4 August 1998. On the evidence, the anti-slip guard, had come off the top step several months before 4 August. The plaintiff was not the only one who gave evidence in relation to the subject stairwell. Ms Lovett gave evidence that as at August 1998 there was a tread missing on one of the stairs. Ms Lam gave evidence that the anti slip guard had been missing for many months before her husband fixed it, although she was not certain as to the date on which he had fixed it. Ms Lovett herself had slipped at some time on the stairs. Mr Kosyfas gave evidence that as at the time when the plaintiff stopped coming to work (being sometime after 4 August 1998) it was pointed out to him that the slip-tread was missing. . 188 As to the allegation of negligence in respect of the lighting in the stairwell, the plaintiff's evidence has already been set out. Mr Bruce-Smith gave evidence that the area in question was dimly lit although it was sufficient to walk up and down the stairs. Mr Kosyfas also gave evidence that in about August 1998 the stairwell was not brightly lit. 189 Clearly the plaintiff was expressly charged with duties which included building maintenance and management. On my findings the problems which are shown to have arisen in relation to both the stair-slip guard as well as the lighting represented extremely simple maintenance issues well and truly within the experience and competence of the plaintiff in so far as arranging for the reinstatement of the strip and the replacement of such fluorescent light bulbs as were necessary. The petty cash float was available and should clearly have sufficed for the purpose. The plaintiff herself personally attended to the Exit Sign. 190 I reject as unreliable: (a) the plaintiff's evidence of having contacted Mr Bruce-Smith about the need for repairs; and (b) the plaintiff's evidence of contacting Mr Niven and then attempting to again obtain a response from Mr Bruce-Smith. 191 In those circumstances had the holding been that the plaintiff had had the accident which was sued upon, it would have been appropriate to find 50% contributory negligence. In this regard the range put forward by the defendant was between an upward limit of 70 % and a lower limit of 30% against the plaintiff. The submissions of the plaintiff had been for either a 'nil' finding or a very modest finding. 192 As to the substance of the plaintiff's claims, on the basis that the accident had taken place in the fashion sued upon, I emphasise that the defendant clearly elected to litigate the final hearing upon the basis that the plaintiff was as significantly incapacitated as claimed. Mr Williams for the defendant put the matter as follows: "I do not wish to make submissions on damage beyond a very short compass in this case. We have tested the plaintiff's evidence over her condition only peripherally with regard to the improvement she had had in respect of [the epidural stimulator], and we do that in this way, to found a submission that, as is not uncommon in these cases, the plaintiff's put their best foot forward in the witness box." [transcript 104 -105]. 193 There was no cross-examination of the plaintiff's medical experts. Damages 194 Both parties produced schedules of damages. 195 The convenient course is to append the competing schedules to the judgment. 196 I am satisfied that the plaintiff is totally and permanently incapacitated and will remain so for life. I am satisfied that the plaintiff would have continued to carry out the work she had been carrying out or similar but for this incapacity. 197 Had the plaintiff satisfied the Court on the balance of probabilities of the occurrence of the accident, the verdict for the plaintiff would have been in accordance with the following tables which: (a) generally follow the format adopted by the plaintiff (although in some cases the figures for which the plaintiff contended have been omitted or reduced with explanation); and (b) takes into account detail to be found in the Medico-legal Functional Assessment report [exhibit PX Tab 12]. Base Data as agreed by the parties Date of birth 6 December 1962 = 39 years 2 months Date of injury 4 August 1998 Life Expectance 43.97 years Multiplier Life Expectancy (MLE) 944.5 Working Life Expectancy (WLE) 26 years (approximately) Multiplier Working Life Expectancy (MWLE) 768.7 MODIFIED COMMON LAW DAMAGES Section 151G Non-Economic Loss (assessed at 1.4.98) Maximum: $228,350.00 Upper Limit: $ 53,750.00 Lower Limit: $ 40,300.00 Section 151H Economic Loss $53,350.00 Section 66(i) $100,000.00 COURTS ASSESSMENT OF DAMAGES Figure Allowed Non-Economic Loss 60% $ 137,010.00 Past Out of Pocket Expenses a. Paid by workers compensation insurer [Agreed] $ 181,901.29 b. Unpaid [Agreed] $ 2,323.30 Future Out of Pocket Expenses – Medical a. Visits to General Practitioner ($2,613.00 over 1.5 years) $ 32,210.00 ($33.00 pw x MLE) [Defendants submission- Plaintiff's claim is for $33.00 per week for the full remaining statistical life expectancy of the plaintiff – ie to age 83 years – claim unreasonable – no evidence to support continuing need until death of $33.00 per week – allowance appropriate at one visit per month = $8,052.50] [ Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] b. Psychotherapy (as per report of A Robertson) $ 2,000.00 [Defendants submission was as per report of no psychiatric Dr Shand, no psychiatric condition] [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] c. Medication (Based on average of $19.30 pw) $ 15,494.52 [ Defendants submission - Medication – current base figure of $19.30 per week not disputed. Plaintiff allows no vicissitudes to admit of recovery /improvement–defendant submits for 50% deduction: $7,747.26] [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] d. Hydrotherapy/Physiotherapy ($4,000.00 over 18 months = $51.00 pw) 0 [Defendants submission - Hydrotherapy/physiotherapy – defendant submits any benefit from physiotherapy would have been manifest within period 4 August 1998 to date –no evidence ongoing resort to either modality - allowance: $ Nil] [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] e. ADAPT Program Number 2 – Cognitive Julia Fleming $ 5,000.00 Defendants submission- ADAPT Programme No. 2 – discount for uncertainty that plaintiff will under go same – say 30% reduction: $3,500.00] [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] f. TENS Machine (Spinal Cord Stimulator) [Agreed] $ 5,000.00 ECONOMIC LOSS Past Nett Earnings as at date of injury $723.00 per week 23 August 1998 to 25 February 2002 = 192.3 weeks Total Past Economic Loss [Agreed] $ 139,032.90 Future (WLM) x (Current Nett Weekly Wage ) less 15% 768.7 x $723.00 = $555,770.10 less 15% = $472,404.58 [Defendants submission: Future Plaintiff's claim is for total incapacity for total remaining working life – not accepted. Submitted allowance must be made for at least partial recovery through pain management or surgery or general rehabilitation within say three years to give a residual earning capacity of say 50%. 723.00 multiplied by (3 years) 145.6 = less 15% vicissitudes: $ 89,478.48 22.8 years (rounded to 23 years) of $723 net per week deferred for three years (.864) $723 multiplied by 721.3 = 521499 multiplied by .863 = $450054 multiplied by .5 =$225,027.02 Total Future Economic Loss $314,505.50] [Notwithstanding the defendant's submission and bearing in mind my holding that I am satisfied that the plaintiff is totally and permanently incapacitated and will remain so for life. I am satisfied that the plaintiff would have continued to carry out the work she had been carrying out but for this incapacity. This claim seems to me to be reasonable in the circumstances] Total Future Economic Loss $ 472,404.58 SUPERANNUATION Past Gross $57,500.00 p.a. Personal Injury Support Report to 14.12.99 = $7,882.26 15.12.99 to 25.2.02 = 2.19 years x $57,500 = $125,925 x 8% = $10,074.00 [Agreed] $ 17,956.26 Future Gross $57,500.00 p.a. x 9% = $5,175.00 = $99.52 pw x 768.7 = $76,501.02 less 15% $ 65,025.87 [The findings of the plaintiff's total and permanent incapacity mean that the Defendants submissions below are rejected] [Defendants submission - Future Same formula to be applied as for future Economic loss ($65025.87) multiplied by 3.145 divided by 4.724) $13,765.00 FOX v WOOD [Agreed] $ 18,364.71 DOMESTIC ASSISTANCE Past Care Griffiths v Kerkemeyer Refer to Workers Compensation Act, 1987 Section 151K Average Weekly Earnings 4.8.98 to 25.2.02 median = $661.00 pw Rehab Management Report 13 April 2000 (page 28) = 21.5 hours pw Per s. 151K(5) $661.00 / 40 = $16.52 per hour x 21.5 hours = $355.18 pw x 192.3 weeks [Agreed] $ 68,301.11 Sullivan v Gordon [The plaintiffs claim was put as follows: Refer to Griffiths v Kerkemeyer calculation 2 children x 1 hour extra per day per child Per s. 151K(5) $16.52 per hour on average 4.8.98 to 25.2.02 = $33.04 x 7 = $231.28 pw x 192.3 weeks $ 44,475.14 [I accede to the Defendants submission that this claim was not pleaded and in any event is subsumed within the Griffiths v Kerkemeyer head of damage allowed below In the resort no amount is awarded] Gardening Refer to Griffiths v Kerkemeyer calculation Rehab Management Report 13 April 2000 (page 29) 1 hour per week: per s. 151K = $16.52 per hour on average $16.52 x 192.3 weeks [Agreed] $ 3,176.80 Summary of the Above Less than maximum allowed (40 hours) in s. 151K WCA Future Care Griffiths v Kerkemeyer Rehab Management Report 13 April 2000 = 21.5 hours pw s. 151K(5) current hourly rate = $17.59 $17.59 x 21.5 = $378.18 pw x 944.5 (MLE) = $357,191.01 less 15% = $303,612.35 $ 303,612.34 The findings are that the plaintiff will not be rehabilitated. [The Defendant submission- Future Care Griffiths –v- Kirkemeyer Submitted three year allowance for rehabilitation – Reasonable $378.18 per week for 3 years 5% multiplier 145.6 = 55,063.74] [notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] Sullivan v Gordon Children born: October 1989 (12 y.o.) August 1992 (9 y.o.) 25.2.02 to 31.12.06 s. 151K(5) current hourly rate = $17.59 $17.59 x 2 = $35.18 x 7 = $246.26 $246.26 x 189.6 (4 yr multiplier) $ 46,690.90 1.1.07 to 31.12.09 s. 151K(5) current hourly rate = $17.59 $17.59 x 1 = $17.59 x7 = $123.13 $123.13 x 149.8 (3 yr multiplier) = $18,444.87 $18,444.87 x 0.823 (4 yr deferred) $ 18,444.87 Gardening Rehab Management Report 13 April 2000 (page 29) = 1 hour pw s. 151K(5) current hourly rate = $17.59 $17.59 x 1 hour = $17.59 pw x 944.5 (MLE ) = $16,613.75 less 15% = $14,121.69 $ 14,121.69 [Defendants submission- One hour per week at $17.59 for 3 years =$2,561.10] [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] Future Out of Pocket Expenses – Special Needs a. High Back Chair Cost $499.00 and replacement every 5 years ($499.00 x 5) $ 2,495.00 [notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] b. Computer Desk with adjustable height Cost $750.00 and replacement every 7 years ($750.00 x 4) $ 3,000.00 [notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] c. Document Holder – Adjustable Cost $80.00 and replacement every 7 years ($80.00 x 4) $ 320.00 [notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] d. Vocational Rehabilitation [Agreed] $ 4,000.00 e. Driver Assessment [Agreed] $ 770.00 f. Personal Alarm System $279.00 + $360.00 per annum $6.92 pw = $6,337.00 + $279.00 $ 6,616.00 [notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] g. Sock Gutter $9.80 @ 5 years x 9 years $ 88.20 [notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] h. Shoe Horn $9.80 @ 5 years x 9 $ 88.20 i. Long Handled Washer $33.00 @ 5 years x 9 $ 297.00 [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] j. Lumbar Support $50.00 @ 12 months $1.00 pw x 944.5 = $944.50 $944.50 less 15% = $ 808.82 [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances ] k. Easireach $32.00 @ 3 years x 15 = $1,440.00 1,440.00 less 15% $ 1,224.00 [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] l. Adjustable Height Kitchen Stool $32.00 @ 3 years x 15 = $1,440.00 $1,440.00 less 15% = $1,736.55 [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] m. Obus Form Back Cushion $165.00 @ 5 years x 9 = $1,485.00 $1,485.00 less 15% $ 1,262.25 [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] n. Todd Recliner Lounge Chair 1,745.00 @ 10 years = $3.35 pw $3.35 x 944.5 = $3,164.07 less 15% $ 2,689.46 [Notwithstanding the defendant's submission this claim seems to me to be reasonable in the circumstances] I certify that paragraphs 1 - 197 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 15 March 2002. ___________________ Susan Piggott Associate 15 March 2002 Last Modified: 03/20/2002 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.