Fiona Leslie v Con Tsoulias; Carouse Pty Limited and Commonweath of Australia [1989] ACTSC 52 (27 October 1989)

SUPREME COURT OF THE ACT

FIONA LESLIE v. CON TSOULIAS; CAROUSE PTY. LIMITED and COMMONWEATH OF
AUSTRALIA
S.C. No. 263 of 1984
Personal Injuries

COURT

IN THE SUPREME COURT OF THE AUSTRALIA CAPITAL TERRITORY
Miles J.(1)

CATCHWORDS

Personal Injuries - assessment of damages - no new question of principle.

HEARING

CANBERRA
27:10:1989

ORDER

There be judgment against the first, second and thirdnamed defendants for the plaintiff in the sum of $56,046.80.

DECISION

This is an action for damages for personal injury allegedly sustained by the plaintiff on 29 April 1983 outside a shop at Brierly St, Weston.

2. The plaintiff presented herself to the Court in the name of Fiona Leslie. She was, however, born Marjorie Amelda Dawn Alchin, on 11 September 1946. She married a man called Phillips in 1963. There is a daughter of that marriage, Sharon Phillips, now aged 23. The plaintiff subsequently married a man called Lancowski in 1974. She has been separated from him for many years but she has continued to use the name Lancowski on occasions. She has another child of the first marriage aged 17 and two children of her second marriage aged 13 and 11, but she did not say what surname any of them uses. She works or has worked as an entertainer playing the piano or organ or electronic keyboard in restaurants and clubs and the like. She says that the name Fiona Leslie is her stage name. She practices or has practised as a piano teacher under the name of Fiona Leslie.

3. I mention this feature of the case at the outset because the credit of the plaintiff was strongly attacked on behalf of the defendants. The plaintiff herself conceded that there were internal inconsistencies in her evidence, inconsistencies between her evidence and what she had said to other people on other occasions about relevant matters and indeed she conceded that she had deliberately told lies about material matters on particular occasions in the past. It was submitted on behalf of the defendants that on all material issues the evidence of the plaintiff could not be accepted unless it was corroborated. Having seen the plaintiff in the witness box over an extended period of time and having considered the other material in the case, I find that the conclusion is inevitable that what she has said both in evidence and on other occasions has to be regarded with particular caution. I do not accept, however, that the plaintiff's evidence has to be corroborated in the true sense. It is possible to come to a conclusion on the probabilities on the various issues to be decided without consideration of the presence or absence of corroboration in the technical sense.

4. In the end my findings as to fact on the events surrounding the injury may be shortly stated. It was agreed among the defendants that should the plaintiff succeed in establishing liability against any one of them, then each of them would consent to judgment.

5. The place where the injury occurred was on the western side of Brierly Street. There is a slight downhill slope northwards. The paved public footpath on the western side of the street follows that downhill slope. A row of shops and commercial premises is further west of the public footpath. The row is on land leased from the Commonwealth by the first defendant, Mr. Con Tsoulias. At all material times one of the shops was occupied by the second defendant. The adjoining premises immediately to the north were occupied by a bank. The shopfronts, however, are set back from the line where Mr. Tsoulias' land abuts the pavement of the public footpath. Between the shopfronts and the pavement there is a concrete strip or apron two metres wide. The shop premises which were subleased by Mr. Tsoulias to the second defendant do not include any part of that concrete strip. The concrete strip runs the full length of the second defendant's shop and the bank. Unlike the footpath the concrete strip does not slope downwards to the north but runs horizontally. Hence, there is a divergence between the level of the concrete strip and the footpath which increases as one proceeds northwards. The divergence commences opposite the door giving access to and egress from the shop occupied by the second defendant. For the first metre or so the difference in height between the concrete apron and the footpath increases from virtually nothing to some few centimetres. The concrete strip is wholly within the land leased by Mr. Tsoulias.

6. It is clear that on several occasions before the plaintiff's injury, other customers leaving the shop had tripped or lost balance at the junction of the concrete strip and the footpath.

7. It appears from the documentation in the case that the shop was constructed and the concrete strip laid some time in 1976, and that trading commenced at the shop prior to the construction of the footpath. It was decided within the National Capital Development Commission (the Commission), partly as a result of representations made by a local member of Parliament, that the construction of the footpath in front of the shops should be completed before Christmas 1976. Construction of the pavement proceeded accordingly, without regard to a memorandum on the file of the Commission dated 12 May 1976 which drew attention to the lack of "appropriate paving grades" from the kerb to the finished level of the concrete strip outside the shops.

8. From the time of the completion of the construction of the pavement up until the time of the plaintiff's injury, complaints had been made on behalf of the occupier of the shop about customers falling over because of the difference in levels. At some stage in the distant past, the Commonwealth, through the Department of Territories or its equivalent, had required the first defendant to paint the edge of the strip yellow, but this faded over time. Complaint had been made on behalf of the second defendant to the first defendant and to the Commonwealth. In particular, complaint was made on behalf of the second defendant of customers falling and trolleys capsizing because of the difference between the level of the concrete strip and the level of the pavement. All that was done apparently on behalf of the Commonwealth was to require the first defendant to repaint the edge of the concrete.

9. The Commission was originally a fourth defendant to the action, but because of the abolition of that body and the assumption of its liabilities by the Commonwealth, there is little profit to be gained in trying to distinguish the duties and function of the Commission from those of the Commonwealth. The plans originally approved by the Commission provided for a railing about six metres in length at the northern end of the concrete strip, and that railing was in fact installed when construction of the pavement took place. Since the plaintiff's injury, an extended railing, or an extension of the railing just mentioned, has been installed. It terminates near where the plaintiff says she fell, about one metre from where the two levels commenced to diverge and about half a metre north of where the plaintiff claims to have fallen. No explanation was tendered why the railing does not extend the full length of the divergence in levels. Perhaps it is because it would then constitute a hazard for people walking out of the door of the defendant's shop who would then be subject to the risk of colliding with the railing rather than falling over the edge of concrete strip. Be that as it may, at the present time that section of the concrete strip unprotected by the railing has against it a sloping concrete infill, a few centimetres in width, painted yellow, which acts as a sort of ramp between the two levels. It is probable that the concrete infill makes it less likely that the divergence in the two levels will cause people to trip over.

10. In those circumstances I find that the Commonwealth of Australia, either through the Department of Territories or its predecessor or through the National Capital Development Commission, or through both, failed to take reasonable care for people like the plaintiff who were emerging from the second defendant's shop and likely to fall or trip when negotiating the difference in the levels between the concrete strip and the footpath. The Commission could and should have insisted upon a marrying of the two levels by proper paving techniques. In addition the Commission could and should have insisted upon provision of a railing as exists at the present time. The Department of Territories or its predecessor after complaints had been made to it could and should have required a railing to be installed by the first defendant. The first or second defendant or both could and should have provided the concrete infill as at present and could and should have maintained the yellow paint more efficiently. Finally, both the first and second defendants could have put up some sort of notice or notices warning of the danger, although I have some misgiving that this failure in itself was sufficient to constitute lack of reasonable care especially on the part of the second defendant. In any event, the plaintiff succeeds on liability and in view of the agreement among the defendants there will be judgment for the plaintiff against all three defendants.

11. Contributory negligence, although pleaded, was not argued at the hearing and I find that the plaintiff was not guilty of contributory negligence.

12. I turn now to damages.

13. This is a more difficult matter, mainly owing to the problems associated with accepting the plaintiff's complaints of pain and disability, her evidence as to her activity both before and after injury and the comparative lack of records relating to this. For several years prior to the injury the plaintiff had suffered from rheumatoid arthritis, which manifested itself only in the hands and wrists. Because of her rheumatoid arthritis she had been awarded an invalid pension some years before in the name of Lancowski. She contradicted herself on this aspect and it may be that she was in receipt of this invalid pension at the time of her injury. It is not necessary to decide that point. What is probable is that she continued to receive the invalid pension whilst she was practising as a piano teacher under the name of Fiona Leslie School of Music and whilst she was playing on an average of three nights a week in a band. She claimed that she did not know she was under an obligation to inform the Social Security authorities of the remuneration received from these activities, but I reject her evidence on that aspect. It may also be noted that it was part of the plaintiff's case that by the time of her injury her rheumatoid arthritis was no longer disabling in any way.

14. At the time of her injury, the plaintiff was working as a keyboard consultant with an organization called Musique Boutique. She said that she worked from 10 a.m. to 3 p.m. five days a week and received remuneration by way of commission, with a minimum weekly gross pay of $300 or $206 net. There is some documentary support for this contention. In addition she claimed that at that stage she was teaching music from her home five or six days a week for two to four hours per day at $5 per half hour lesson. It is impossible to arrive at any firm conclusion about what income she derived from this activity. She did not submit tax returns relating to her teaching in the year or relevant years prior to her injury and she was unable to produce documents which supported her claim to any material degree. Indeed the only record she seems to have kept were receipt books for moneys paid to her by her pupils and deposit books for moneys paid into the bank, and these do not appear to present a comprehensive picture. Her tax returns in more recent years show in addition that the expenses of running the school of music exceed the gross income and that she is able to claim a loss from that activity against other income earned by her.

15. Similarly, prior to the injury the plaintiff did not disclose her earnings from playing in the band to either the Department of Social Security or the Commissioner for Taxation. She says that she received about $50 per performance. Her partner, Mr John Bellamy, whose evidence I otherwise accept, said that the payment was $100 per performance and that the rates had not gone up in ten years. On this aspect I think that the plaintiff's evidence is more likely to be correct. Although the evidence on the point was scanty, it is likely, in my view, that the plaintiff would have to offset against that gross income expenses involved in the purchase or hire of equipment, travel and the like, unless of course this was wholly offset already against the cost of running the school of music.

16. The plaintiff's early years were spent at Griffith in New South Wales. She moved to Nowra with her family at the age of 12 years. She left school at the age of 15 years. She worked as a shop assistant for about a year. She then undertook training as a nurse's aid and after completing that course she worked a total of about twelve years in that capacity at the Shoalhaven District Hospital. For part of that period she was also employed as a teacher of piano and keyboard by Nowra Music Studios.

17. The plaintiff came to Canberra in 1973. She worked as a nurse's aid for about a year and then as a telephonist with Telecom. She married for the second time in 1974 and ceased employment at about the time of the birth of the first child of the second marriage. That child, a son, is now aged 13 years and there is also a daughter now aged 11 years. The plaintiff separated from her second husband in 1981 but she is still married to him. She has the three youngest children residing with her.

18. In 1977 the plaintiff resumed employment as a music teacher. Her employer died in about 1978 and she continued to engage in teaching the pupils in a private capacity.

19. In 1982 the plaintiff once again resumed employment this time in a shop trading under the name of "Musique Boutique". Her hours of employment were from 10 a.m. until 3 p.m. Mondays to Fridays. This left time for her to continue teaching pupils on a private basis. I am satisfied that the plaintiff was earning income from her teaching at the time of her injury, although the extent to which she engaged in this activity and the net gain she received from it are matters of contention. The plaintiff kept no records of any significance and did not declare her income from music teaching for income tax purposes until such time as her expenses exceeded her income from that source.

20. During her years in Nowra the plaintiff belonged to various musical groups which performed in clubs and hotels on the south coast and in Canberra. She continued to perform with similar groups after she came to live in Canberra and at the time of her injury belonged to a performing group currently known as "Jade". In about 1973 the plaintiff began receiving treatment for rheumatoid arthritis in the second finger of her right hand. It appears, however, that this condition was not diagnosed as rheumatoid arthritis until 1976, after the plaintiff came to Canberra.

21. According to Dr Howe, who saw the plaintiff on 18 May 1989, the plaintiff told him that she developed rheumatoid arthritis in her late twenties, which spread from the right index finger to involve multiple joints of her hands, arms and legs. That problem persisted for some two years until she commenced a regime of a drug called Prednisone. Whether it cured the plaintiff or merely supressed the symptoms, is not clear, but she has had no trouble with rheumatoid arthritis since then, and she told Dr Mann that she was "able eventually to resume piano and organ playing and even playing A grade hockey". I am satisfied from the evidence that the plaintiff had resumed playing hockey, probably in the season prior to her injury in 1983, that she was playing the piano and organ in 1983 and that accordingly her rheumatic arthritis, if not cured or in remission, was under control as far as symptoms were concerned.

22. From about 1975 the plaintiff had suffered from depression which required her admission to the psychiatric ward at Royal Canberra Hospital on several occasions. The depression was connected with her unhappy domestic situation. She was prescribed various drugs, one of which was apparently highly addictive. However, the plaintiff became dependent upon it and whilst trying to withdraw from it she suffered an epileptic seizure. She required intensive treatment for epilepsy at that time and in 1976 but she keeps her epilepsy under control at the present time with medication.

23. It is unnecessary to endeavour to be entirely precise about the plaintiff's pre-injury history. The importance of that history did not become apparent until after the hearing commenced when various documents produced upon subpoena from hospitals and doctors became available to the defendants' legal advisers. An adjournment of the case was granted on the application of the plaintiff so that the plaintiff might prepare herself to counter any suggestion on behalf of the defendants that she would or might, but for the injury, have been incapacitated for work in any event.

24. I am satisfied that between 1980 and 1982 the plaintiff was dependent upon pain-killing drugs to the extent of addiction. Whilst I am satisfied that she was no longer addicted at the time of her injury, the question of her low pain threshold and susceptibility to drug addiction bears upon her claim of continuing symptoms and incapacity.

25. How exactly the plaintiff injured herself and what happened immediately thereafter is not clear. She said she walked out of the door of the shop and "the next minute I knew I was tripping down the step and I landed on the footpath". She continued, "I just crabbed myself backwards to the shop because I knew my leg was broken". She said that her foot was swollen, that she got her shoe off and was carried by members of the staff of the shop across to a clinic somewhere in the shopping centre. The two employees of the second defendant who were called to give evidence denied that anything like this occurred at all, and I have no reason to reject what they said. Be that as it may, the plaintiff appears to have been taken to the Woden Valley Hospital and she was certainly seen some time that day by Dr Garry Jones of Wanniassa. From the outset there was some doubt whether the plaintiff had suffered a fracture of her ankle. Dr Jones came down to the view that there had been "a chipped bone near the talus bone". The plaintiff was prescribed various pain-killing medication and was given pain-killing injections. Dr Jones placed her leg in plaster. The plaster was removed on 6 May 1983 when there was found to be a considerable amount of bruising in the ligaments. The plaster was re-applied and eventually removed on 21 June 1983 when the plaintiff was referred for physiotherapy. Dr Jones' opinion at that stage was that the plaintiff had sustained an avulsion fracture of the talus with associated ligamentous injury. I think that on the probabilities that remains an accurate diagnosis. There is a suggestion in some of the reports of other doctors at a later stage that the plaintiff's disability may have been contributed to by the immobilization in plaster. It is unnecessary for me to form a view on that matter, as the defendant is responsible in any event.

26. The plaintiff continued to see Dr Jones complaining of pain and tenderness over the injury site and on 6 September 1983 she produced to Dr Jones' x-rays which she herself had obtained. The uncertain features of the x-rays and the failure of the plaintiff to improve caused Dr Jones to refer her to Dr Kitchin, an orthopaedic surgeon, at the beginning of September 1983.

27. Between June 1983 and September 1983 the plaintiff was also seeing Dr Quach of Chifley and it is curious that he also referred her to Dr Kitchin in September. The reasons for the plaintiff visiting Dr Quach as well as Dr Jones are not entirely clear. It is likely, in my view, that this was because she was able to convince Dr Quach that "she required a few injections of Pethedine for pain", and was able to increase her access to that drug.

28. Dr Kitchin's view at the end of September 1983 was that the plaintiff's injury was mainly a ligamentous one, with a minor avulsion fracture at the ligament attachment of the talus. The limitation of ankle movement and pain of which the plaintiff complained was in Dr Kitchin's view, which I accept, a consequence of her injury. At that stage he thought she was unfit for work and was likely to remain so for several months.

29. Dr Kitchin then saw the plaintiff in August and November 1984. On 6 August 1984 he gave her an injection of Depo-Medrol. The plaintiff rejected his suggestion that she undergo manipulation under anaesthesia. Not being able to do anything further, in November Dr Kitchin referred the plaintiff to a pain clinic run by Dr Lithgow at Woden Valley Hospital and did not treat her again. However, Dr Kitchin did see the plaintiff again on 30 March 1988, a matter to which I shall later refer.

30. The plaintiff complained in evidence that she was, and continues to be, in constant pain. The complaint was very general in nature. She continues with heavy use of pain-killing drugs. She says that she cannot sleep well. She complains that pain in her right leg prevents her from using the pedals on a piano, and this has prevented her from achieving higher grades as a piano teacher and that that in turn has led to a dropping off of her music pupils. She claims that as a result of the injury she can no longer play hockey.

31. The plaintiff's claim that she used crutches for nine months after the injury without being able to place any weight on her right foot, is not borne out by the reports of the treating doctors. There is an absence of medical evidence of treatment towards the end of 1983 and very little in 1984. Nevertheless I am satisfied that she was not capable of carrying out the work that she had been previously carring out at the Musique Boutique during that initial period. She learned that her job had been given to someone else "early during that period" and it is reasonable that she did not reapply for work there. She also claimed that immediately after the injury she was not able to continue teaching music nor to continue playing in the band. However, the only evidence from any of her pupils was that of Janice Gwen Taylor and it suggests that there was no break in the continuity of the music lessons. Nevertheless, I would not dismiss the whole of the plaintiff's claim in this regard and I think it likely that she did miss some lessons or some pupils, or both, but exactly how many, if either, is impossible to say.

32. The plaintiff said that she first recommenced performing in her band in November 1983. That work involved performing Friday and Saturday nights at the Shanghai Restaurant in Dickson and although there was a break between April 1984 and 22 June 1984 in the work at the Shanghai Restaurant, the plaintiff continued to do that sort of work since. The band, however, has broken up for reasons which have nothing to do with the plaintiff's injury. There is some dispute when actually it was that she started work. Her colleague, Mr Bellamy, thought it was only twelve weeks or so after her injury.

33. On 11 September 1984 the plaintiff saw Dr Greenhalgh complaining that she had twisted her right ankle "again". Dr Greenhalgh prescribed what he called the "usual analgesics" noting, however, that the ankle in question did not appear swollen or bruised.

34. The plaintiff saw Dr Lithgow on 16 November 1984. She gave him a history that she had fallen down four times in the previous sixteen weeks. Dr Lithgow found that there was no response to intravenous foot blocks and recommended the application of a TENS appliance. However, the plaintiff did not return for any further treatment.

35. It is, in my view, significant that the plaintiff sought no further treatment between November 1984 and October 1986 when she consulted Dr Dimitri for the formation of an ulcer on her right shin. Again she was prescribed analgesics and given injections. X-rays indicated nothing abnormal and she was referred to Dr McKeown. Dr McKeown obtained a history from the plaintiff that the wound in question had broken down after she fell over a railway sleeper and was admitted to hospital.

36. It is also significant that in the meantime in late 1984 and early 1985 the plaintiff had been examined by a number of doctors for the purposes of the litigation, including doctors representing the defendant. Dr Stubbs, an orthopaedic surgeon, formed the view that the plaintiff was exaggerating her symptoms and was fit to return to her former work. Dr Anthony Cairns took a similar view, although at that stage he considered that there was a psychogenic element in the plaintiff's complaints. Dr Long took a less sceptical view of the plaintiff but, nevertheless, advised that her case should be settled as soon as possible.

37. On 8 July 1985 the plaintiff commenced employment at Brashs Music Centre and she continued at that work until 29 November 1985. She claimed that because the job at Brashs involved standing, she was unable to continue. In the meantime it appears that the plaintiff had an hysterectomy. This is what she told Dr Robbie, a psychiatrist, and is mentioned in his comprehensive report dated 11 January 1989. She did not consult a medical practitioner when she ceased working for Brashs.

38. There was then very little change in the plaintiff's condition as she described it up until the time of the commencement of the hearing on 7 November 1988. At that stage she told the Court she had recently applied for various jobs which she considered within her capacity in the Canberra area but had been unsuccessful. The adjournment that was granted on 8 November 1988 gave the plaintiff the opportunity to accept an offer of employment as a nurse's aid at the Jindalee Nursing Home. She commenced working there on 5 December 1988. She ceased work in May 1989 after an incident involving strain to her back when trying to lift a patient. At the time of the resumed hearing on 17 July 1989 the plaintiff was receiving worker's compensation as a result of this most recent injury. She has received continuing payments of worker's compensation in respect of the injury in 1983 (although she claimed that compensation payments did not start until thirteen months after the accident, a claim which was not disputed). Before she started working at Jindalee Nursing Home she was examined by a Commonwealth Medical Officer and the inference is to be drawn that she was considered fit for the work. A further inference is to be drawn that she made no complaints to the Commonwealth Medical Officer of the condition in her right leg of which she complains in these proceedings.

39. The plaintiff's daughter, Ms. Sharon Phillips, gave evidence that after the 1983 injury the plaintiff was laid up and unable to do much around the house. As a result Ms. Phillips called at her mother's house everyday for a couple of weeks to attend to her. She confirmed that the plaintiff had played hockey in the season immediately before her injury and had not played since. Ms Phillips was unable to say whether the plaintiff continued to teach music after her injury.

40. Mr. John Bellamy, the plaintiff's colleague in the band, gave evidence that he began playing in the group with the plaintiff in about 1980, and that the band played two to four nights a week at about $100 per night. He said that after the accident the plaintiff resumed playing with her leg in plaster, and that on most nights she took medication. He remembered that about eighteen months after that there were particular difficulties when he undersood the plaintiff's leg to have become infected. This must have been at about the time the plaintiff consulted Dr Dimitri and Dr McKeown for the ulcer on her right shin. Mr Bellamy said that she continued to complain of pain over the period 1983 to the time of the hearing and lost a total of about one year away from her performances in the band. He estimated that it was about one year since he and the plaintiff had played together in the band.

41. The adjournment between November 1988 and July 1989 also provided an opportunity for the plaintiff to be examined by a variety of doctors both on her own behalf and on behalf of the defendant. The reports following some of these examinations have been helpful to the extent that the doctors have given opinions appraised of the prior medical history of the plaintiff. On the other hand, the plaintiff was deliberately untruthful with a number of those doctors regarding her employment history and the value of the opinions of these doctors, who were misled into believing that she had not resumed work, is reduced substantially. Dr Kitchin was one such doctor who was misled at his examination on 30 March 1988 into believing that the plaintiff had not worked since her original injury.

42. There can be little question that the plaintiff has conducted herself in a most dishonest manner in the past. At some time before her injury in 1983 she was in receipt of an invalid pension, which she did not disclose for income tax purposes. She continued to receive a social security pension along with her worker's compensation payments. When she went to work for Brashs' in 1985, a period of more than five months, she failed to inform her previous employer or those who were paying her worker's compensation. Following her injury at Jindalee more recently, she received worker's compensation for that injury in addition to that received for the 1983 injury. Her explanations about these matters were based on what she claimed was ignorance, but I considered those explanations to be unconvincing.

43. Dr Richard Jones, a specialist in rehabilitation medicine, interviewed the plaintiff on 16 April 1985 at the request of her solicitors. He clearly accepted her complaints as genuine, although he noted that her complaints seemed to be out of proportion to the actual injury. He concluded that she was unable to operate the foot control pedal with her right foot. It was shortly after that interview that the plaintiff commenced work with Brashs. Dr Jones observed the plaintiff to walk with a marked limp with little weight being placed on the right foot. Dr Jones considered at that stage that the plaintiff was unfit for any occupation involving the use of a foot pedal on a musical instrument. However, he did note that that had not prevented the plaintiff playing two nights per week on a keyboard without such a foot control.

44. Dr Jones did not see the plaintiff again until 18 November 1987. His view then was that the plaintiff continued to have some minor continuing sequelae, but these were not organically based. I am of the view that at the initial consultation the plaintiff misled Dr Jones as to the extent of her symptoms and disability.

45. When Dr Cairns examined the plaintiff on 20 March 1986 on behalf of the defendant, he found passive restriction of movement only in the right ankle, otherwise full activity. He also observed that the plaintiff appeared to walk without a limp after she had left his surgery and came to the conclusion that there was no impediment to the plaintiff's employment and that her complaints were motivated by secondary gain.

46. In the period between November 1988 and July 1989 the plaintiff was examined by a number of psychiatrists. Dr Maxine Tennant found that there was no clincial depression or anxiety, but the plaintiff was defensive and bitter over the experience she had had waiting for her case to come to court, when nobody seemed prepared to accept liability. Dr Tennant concluded that the plaintiff was an addictive personality with a low pain threshold, constitutionally vulnerable to pain, whose prior addiction to Pethedine had been reactivated after a fall she had had in 1986. I think that that is an accurate assessment except that, in my view, the Pethedine addiction recommenced after the subject injury in 1983.

47. A very comprehensive report from Dr Robbie, a Sydney psychiatrist, comes to the conclusion that whilst there may have been a psychogenic element in the plaintiff's complaints of pain at some time in the past, it was not present when Dr Robbie examined her on 11 January 1989. With regard to the plaintiff's continuing complaints about the right lower leg, Dr Robbie reported that she described the pain as dull and nagging but had learned to live with it. Amongst the many events leading to the plaintiff's condition at the time of interview and at previous times, Dr Robbie thought that the accident in 1983 was only one of a number of precipitating events. Again, I accept that opinion. It has to be weighed against the opinion of Dr Richard Jones, which I also accept, that by November 1987 there was no organic basis for the plaintiff's complaints.

48. Dr Yolande Lucire, another psychiatrist, presented a report on behalf of the defendant. The plaintiff apparently antagonised the doctor greatly, and the report is of very little assistance.

49. A psychological assessment of the plaintiff conducted by Mr. Tom Sutton, concluded that the plaintiff had distorted the test in the direction of appearing to be better adjusted psychologically, the inference is to be drawn that the plaintiff was not genuinely co-operating in the tests administered. This is consistent with her behaviour towards Dr Lucire and her failure to give an accurate history to several of the doctors.

50. I have taken some time to consider this matter because of the difficulty in assessing the whole of the evidence in the light of the plaintiff's untrustworthiness as a witness. There is no question that she received an injury and that it was of a ligamentous nature associated with a minor fracture of the right talus. She received treatment for that injury until November 1983. By then, however, she had already resumed her music teaching and her keyboard playing in the band. She was able to commence work in a music shop in May 1985. I am not satisfied that the plaintiff was forced to abandon that employment because of the continuing effect of her 1983 injury. She was in receipt of social security payments and also worker's compensation, and whilst I appreciate that she had responsibilities as a single parent which no doubt used up the combined income, nevertheless, the need to draw a wage from employment would not have been as great in her case as in the case of most regular wage earners. It seems that from about the middle of 1985 onwards until the time she had a fall in September 1986, the plaintiff did not seek out medical treatment for her right leg, although there were other matters such as an hysterectomy in 1984 and an assault on her some time in 1986 which resulted in her receiving criminal injuries compensation. Somewhere between the end of 1984 and mid-1986 it seems that the situation had developed whereby a fall or falls in September 1986 triggered off the psychological and psychogenic factors to which Dr Robbie and Dr Tennant refer. However, in my view, it has not been demonstrated that any fall in 1986 was itself a result of the 1983 injury. In my view, the plaintiff has not proved that there have been any consequences of the 1983 injury which resound in damages and persisted beyond the middle of 1985. In particular, there is no continuing loss of earning capacity.

51. I have given particular consideration to the question whether the plaintiff ought to be compensated for the anger, bitterness and inability to cope described by Dr Tennant and which persisted beyond the middle of 1985. I have decided that she should not, chiefly because of the unsatisfactory nature of so much of her evidence. However, I take into account also the other contributing factors, including drug abuse, to which Dr Robbie and Dr Tennant referred.

52. I think that the plaintiff should be awarded the whole of her loss of earnings from her position in the Musique Boutique for six months following her injury, together with about one half of that loss until she commenced work with Brashs on 8 July 1985.

53. The plaintiff's probable net weekly wage at the Musique Boutique was $206. She also earned commission which varied from week to week but which was not quantified in the evidence. I would assess her likely total net weekly earnings from this source at $220. I award $5,500 for the loss during the first six months and a round figure of $10,000 for the period from then until 8 July 1985, a total of $15,500.

54. I am not convinced that the plaintiff lost the amount of time from teaching her private pupils which she claimed, but I am prepared to hold that it is likely that some pupils ceased to continue, or she ceased to attract new pupils, or both, because of her inability to use her right foot on the pedal. I make that finding in the face of the evidence of her witness, Mrs Taylor, and that of her daughter, which was more consistent with the plaintiff having lost no time from teaching at all. However, the witnesses may have forgotten what the true situation was. The plaintiff is more likely to remember it, even though she is prone to exaggerate its effect. Because the evidence is unsatisfactory, however, there can be no exact quantification and the award will have to be modest.

55. I accept the evidence of Mr Bellamy. I find that since her injury, the plaintiff lost a total of about one year away from her performing in the band. She would have earned between $5,000 and $20,000 gross and before deduction of expenses. I award $10,000 for this component.

56. Out-of-pocket expenses are agreed at $1,362.30 and although some of this may cover the period beyond May 1985, I have insufficient detail to break it down and, in this respect, the figures being otherwise agreed, the onus is on the defendants to show what part of the agreed figures is referable to any particular period in question. This has not been done and the plaintiff will be awarded the whole of the agreed out-of-pocket expenses. I have been supplied figures showing the tax paid by the plaintiff on worker's compensation payments received by her, and doing the best I can with those figures, I award the sum of $2,947 being the Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component up until 8 July 1985.

57. I award $15,000 for pain and suffering and loss of enjoyment of life, which, as I have already indicated, does not cover the period beyond 8 July 1985.

58. I reject the plaintiff's claim that by reason of her injury she was unable to go on to complete her attaining full qualifications as a music teacher.

59. Interest is claimed and will be awarded on the sum allowed for pain and suffering at fourteen percent per annum reduced by one quarter, giving a figure of $10,237.50. The conventional approach of reducing the interest on past pain and suffering and loss of enjoyment of life by one half applies only when the damage continues up until the date of judgment. I have considered whether in the exercise of discretion, it is appropriate to award interest having regard to the long delay in bringing the case to court. However, I am not convinced that this is entirely the fault of the plaintiff, and I think that she should have interest on the sum awarded for pain and suffering and loss of enjoyment of life. However, as far as loss of earning capacity is concerned, it is quite inappropriate where the plaintiff has, as a result of the injury of which she has complained, received worker's compensation during the period in question, and beyond, as well as social security benefits to which she was not entitled. Interest will be awarded to the damages and the plaintiff is to have judgment for $52,634.30 which in summary is awarded as follows:
Pain and suffering and loss of

enjoyment of life $15,000.00
Out-of-pocket expenses $ 1,362.30
Loss of earning capacity as
employee in music shop $15,500.00
Loss of earning capacity as
music teacher $1,000.00
Loss of earning capacity as
performer in band $10,000.00
Fox v. Wood $ 2,947.00
Interest $10,237.50
Total $56,046.80

60. The aggregate damages appear to be appropriate (leaving interest out of account) having regard to my findings. Unless the parties wish to be heard, I propose to order that the defendants pay the plaintiff's costs. If it is of assistance to the parties, I express the view that because of the difficulties on liability, and the attitude of the defendants in that regard, it was appropriate for the plaintiff to engage senior counsel.