Mitzi Wiki v Atlantis Relocations (NSW) Pty Ltd [2003] NSWSC 481

New South Wales Supreme Court

CITATION : Mitzi Wiki v Atlantis Relocations (NSW) Pty Ltd [2003] NSWSC 481 HEARING DATE(S) : 24/03/03 - 28/03/03 JUDGMENT DATE : 16 May 2003

JUDGMENT OF : Newman AJ at 1 DECISION : Damages assessed in the sum of $290,139.35; The question of the final judgment amount and costs reserved until delivery of these reasons.

CATCHWORDS : Admission by conduct - assessment of damages - unreliability of testimony - exaggeration - failure to mitigate. CASES CITED : Heuston v Yore Contractors Pty Limited 9 March 1992 (Unreported) per Hunt CJ at CL PARTIES : Mitzi Wiki - Plaintiff Atlantis Relocations (NSW) Pty Ltd - Defendant FILE NUMBER(S) : SC 20998/01 COUNSEL : G. B. Hall QC / F Stevens - Plaintiff P. C. Sweeney - Defendant SOLICITORS : RTW & Associates - Plaintiff Goldbergs Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

Friday 16 May 2003

20998/01 - MITZI WIKI v ATLANTIS RELOCATIONS (NSW) PTY LIMITED

JUDGMENT 1 HIS HONOUR: This is a claim for damages for personal injury brought by the plaintiff against her former employer. The plaintiff claims that she first suffered injury on 15 February 1998 in the course of her employment because she was obliged to carry out duties which included heavy lifting. Furthermore she alleged that between 15 February 1998 (having suffered injury on that date) and April of 1999, she was further required to carry out duties involving heavy lifting which in the performance of such duties aggravated the back injury she had suffered on 15 February 1998. 2 The defendant admitted that the plaintiff's allegations as pleaded which I have summarised above, constituted a breach of duty on behalf of the defendant employer. Accordingly it is not necessary to examine in greater detail the allegations made by the plaintiff relating to how she suffered injury. 3 At the trial the principal issue which emerged was, what was the nature of the back injury suffered by the plaintiff and what were the consequent disabilities which flowed from that injury. 4 The plaintiff's task in establishing that she suffered and continued to the date of trial, from incapacity resulting from the injury which occurred in the course of her employment, is made easier because the defendant (through its insurer) has continued to make payments of workers compensation on a voluntary basis up to the date of the trial. It is trite law in this State that the fact of continued payment of workers compensation is admissible against a defendant in whose name the insurer defends common law proceedings as an admission that an injured worker is still incapacitated at the time such payments are made as a result of the injury which the worker received in the course of that worker's employment. See for instance Heuston v Yore Contractors Pty Limited 9 March 1992 (unreported) per Hunt CJ at CL. I should add that Hunt CJ at CL in Heuston's case observed that such an admission is always open to explanation by way of evidence in the same way as any other informal admission is open to explanation. Be that as it may a plaintiff's task in establishing incapacity for work is made easier by the reception in evidence of such an admission. 5 What then is the plaintiff's case. She deposed that following experiencing back pain at work on the 15 February 1998, she did not see a doctor until some four days had passed from the date of injury. She then saw a general practitioner, a Dr Earl, but did not immediately cease work. However some days later she experienced pain in her right leg which caused her to return to see Dr Earl following which visit she ceased work and remained off work being paid workers compensation for the next two months. During that time she had not only attended upon Dr Earl but Ryde Hospital and a specialist, Dr Donaldson. 6 Having been off work for two months, she returned to work in April of 1998. Her evidence was that she felt she could resume her duties at that time. When however she did return to work her duties were changed – she undertook the duties of a project manager. She described those duties as involving liaison with clients, finding out what they wished to have the defendant company move on their behalf. The job involved analysing what was required by way of labour and equipment. Her work as project manager did not involve physical activity. While she continued working as in that capacity for the defendant from April 1998 onwards, she said that she was still experiencing pain in her lower back which pain extended down her right leg, indeed to the extent where the pain reached her ankle. During the time she was carrying out the duties of a project manager she was still seeing her general practitioner, Dr Earl, and on occasions attended Ryde Hospital. 7 She in fact continued to work as a project manager for the defendant until April in 1999. She said that while she was not required to carry out any physical labour as such, the long hours she was required to work together with the distances she was required to drive to perform her duties, caused her pain and discomfort. 8 As I have said she left the employment of the defendant in April of 1999. She then went to work with another removalist company known as Movers and Shakers. Again her employment with that firm was as a project manager and as I understand her evidence, her duties there were similar to those she had been performing in that capacity with the defendant. She said that she was still suffering from back pain and attended Dr Earl on a number of occasions as well as Ryde Hospital. Eventually she found that her back and leg pain was such that she could not continue her duties with Movers and Shakers and she left the employment of that entity in July of 1999. Since then she has performed no work for remuneration because she claims the disabilities she suffers following her original injury with the defendant on 15 February 1998 have prevented her from so doing. 9 Indeed it was her case that since she left the employment of Movers and Shakers in July of 1999 she has become increasingly disabled. In early 2000 her back pain was not confined solely to her lower back but also she complained of symptoms in her thoracic region. As the years have passed so have her symptoms and complaints of pain, to use Dr Dan's description, cascaded. 10 On 24 October 2001 the plaintiff was examined by Dr Eli Revai, psychiatrist, on behalf of the defendant. In his report of that date, Dr Revai summarised the complaints of pain and disability made by the plaintiff to him as follows:-