Eva Versegi v Nunzio Grassia Trading As Weston Cleaning Service [1991] ACTSC 36 (18 June 1991)

SUPREME COURT OF THE ACT

EVA VERSEGI v. NUNZIO GRASSIA trading as WESTON CLEANING SERVICE
S.C. No. 1258 of 1988
Personal Injuries - Negligence

COURT

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

CATCHWORDS

Personal Injuries - assessment of damages - whether injuries attributable to accident - no new question of principle.

Negligence - plaintiff injured at work - alleged breach by defendant to take reasonable care for safety of his employee - question of contributory negligence - no new question of principle.

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA
18:6:1991

Counsel for the plaintiff: Mr R. Crowe

Solicitors for the plaintiff: Pamela Coward and Associates

Counsel for the defendant: Mr G.W. Neilson

Solicitors for the defendant: Hunt and Hunt

ORDER

The Court orders that there be judgment for the plaintiff in the sum of $148,409.68.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 17 December 1987 whilst working as a cleaner for the defendant.

2. I outline the undisputed facts. The plaintiff was born in Yugoslavia on 25 March 1947. She married in Yugoslavia. She came to Australia in 1970. She had never been in employment until she commenced cleaning work in 1975. She continued in cleaning work until the date of her injury. It is admitted on the pleadings that at the time of injury she was employed by the defendant. However, some of the evidence suggested that she was employed by the defendant's father, Mr Sebastiano Grassia, or an associated company. In any event, she had been employed during the day by one or the other as a cleaner for some years. She also worked four hours at night for the Australian National University. The defendant had a contract to clean the Dickson College. During the school holidays the plaintiff worked seven days a week on that task. The day on which she was injured was shortly after the commencement of the school holidays. Her injury occurred when she was standing on a table in the canteen washing a ceiling vent with detergent and water. Her attention was distracted from the task and as she turned she fell from the table. She injured her right elbow as a result of the fall.

3. How the plaintiff happened to be on the table and what exactly occurred immediately before her fall is the subject of dispute. The nature of the plaintiff's case is not to be gleaned from the original statement of claim or even from the amended statement of claim. However, there was included amongst the particulars of negligence before amendment an allegation that the defendant required the plaintiff to step on to a table which was not designed for that purpose. Particulars of negligence in the amended statement of claim include the following:
"(m) Requiring the plaintiff to clean a ceiling

vent from a laminex table which was liable to and did in
fact become wet and slippery.
(n) Failing to prevent the plaintiff from cleaning
a cealing (sic) vent from a slippery laminex-topped table."

4. The plaintiff's evidence was that the day before her accident, the carpet in the canteen had been washed. On the morning of the accident furniture was moved from the corridor into the canteen. According to the plaintiff, her supervisor, Mr Bruce Enders, had already moved the table in question into its position when the following events occurred. The plaintiff said that while in the corridor she said to Mr Sebastiano Grassia, "I am finished the dusting. What can I do now?" She said that he replied, "You are tall enough and you can go on the table and wash that". At that stage Mr Grassia indicated a ventilation duct in the ceiling above the table. Mr Grassia, according to the plaintiff, further said, "You can clean and you can take G60 and sponge and steelwool, you taller from everybody else". The plaintiff said that she asked whether it would be all right and Mr Grassia replied, "Yes, Bruce he tried the table and the table all right, safe". The plaintiff said that she then went to the canteen where she saw the table beneath one of the ventilator ducts. She took a bucket of water with some G60 detergent, got up onto the table and commenced to clean the vent with steelwool, detergent and hot water. She was in bare feet because she had experience of the detergent making surfaces slippery. She scrubbed some of what she described as "oily dirt" from the vent and then began to use a sponge and water. As she did so some of the water ran down her arms and around her legs. It was not much, just a couple of drops. She described the critical moments in the following terms:

"And Mr Grassia come round and I ask him I said,
"Mr Grassia please can you look it be all right, enough
clean?" and because I don't want to spend too much time in
there and he just come round, he just come to me slowly and
I just turned it slowly and I slipped."

5. She then described how she fell onto the floor, putting her right hand out and in effect landing on the palm of that hand.

6. The plaintiff identified the type of table from which she fell as similar to that shown in a photograph, exhibit B. The photograph indicates a table with collapsible legs or legs which fold underneath the table top.

7. The evidence on these matters in the defendant's case was given by Mr Sebastiano Grassia and by Mr Bruce Enders. Mr Grassia said that he arrived at the Dickson College at 10 a.m. on the day of the plaintiff's injury. He said that he did not speak to her before he met her in the canteen, nor to Mr Enders. He said that when he saw the plaintiff in the canteen she was dusting. His account of the ensuing conversation was not easy to follow, but it was to the effect that the plaintiff told him that Mr Enders had told her to dust the vents but she intended to wash them, the better to clean them. He said he told the plaintiff, "We never wash, we all time dust". He said in his evidence, "We have a long feather duster to dust", but I am not convinced that he used those words to the plaintiff. I do not think that they were more than a description to the Court of what equipment was available to carry out the work. They are consistent with the other evidence of Mr Grassia that the defendant's contract did not extend to washing ceilings or walls or anything else above the height of two metres. Mr Grassia maintained that there was a virtual argument between him and the plaintiff, the plaintiff insisting that she should wash the vent and Mr Grassia insisting that she should dust. According to his evidence, another employee arrived at this stage and engaged him in conversation. His attention became diverted from the plaintiff and he did not redirect his attention to her until what must have been only moments later when the plaintiff called him to say, "Mr Grassia, look, it comes good, beautiful". He then saw that the plaintiff was standing on the table and in his words, "..... just that time she's must move and the table is turn over and she fell down". Mr Grassia was close enough to the table to try to restrain the plaintiff physically from falling, but he was unsuccessful.

8. The evidence of the supervisor, Mr Bruce Enders, was somewhat easier to understand. He said that the general cleaning of the entire Dickson College took place three times a year during school holidays and that it included the cleaning of the canteen and of the floor of the kitchen. The kitchen was adjacent to the canteen, separated only by an open grille shutter. There were three cleaning women engaged for this purpose. The general cleaning started the day before the plaintiff's injury. On the day of the plaintiff's injury he told the cleaners, "Don't forget the ventilators, ladies". There were long-handled dusters available for the dusting of high areas. He denied that he ever told the plaintiff or anybody else to wash down the vents. He denied that he ever told the plaintiff that she was to climb upon the table for that or any other purpose, or that he had tested the table for that purpose. He could not recall the ventilators being washed down on any prior occasion. He was not in the canteen at the time of the injury but after hearing a commotion came in and saw the plaintiff lying on the floor. He remembered seeing a table close to where she fell, but it looked like an ordinary table and he could not remember whether it was on its side or not.

9. In trying to resolve the question of how exactly the plaintiff came to receive her injury, I start by accepting the evidence of Mr Enders as far as it goes. I am satisfied that the table from which the plaintiff fell was not a table with collapsible legs. I am not satisfied that the table itself collapsed or that the weight of the plaintiff on it caused it to turn over. If it had collapsed or turned over, I think that Mr Enders would have remembered.

10. I am satisfied that the plaintiff's interpretation of what she was told by Mr Enders was that the vents should be cleaned. I am not satisfied that she understood that they were to be dusted and not washed. In fact, I am not satisfied that the defendant either through Mr Enders or Mr Sebastiano Grassia issued a positive instruction to the plaintiff to dust the ventilators. I think it unlikely that such an instruction would have issued because of the proximity of the ventilators to the adjoining kitchen and the likelihood that there would have been a buildup of grease on the outside of the ventilators. The ventilator in question appears to have been some few metres from the kitchen. Whilst the evidence of the plaintiff is not wholly satisfactory it is, in the light of Mr Enders' evidence, sufficiently acceptable for me to reject the account of Mr Sebastiano Grassia that he conveyed to the plaintiff his insistence on the plaintiff dusting and not washing the ventilators. It was the arrival of another employee which engaged his attention at the critical time, and Mr Sebastiano Grassia thought that it was that factor that permitted the plaintiff to have her own way and wash the ventilator from the table top instead of dusting it from the floor. The operation that the plaintiff said she carried out, and which I think is likely to have occurred involves the application of cleaning materials to the ventilator for much longer than the very short period, only moments or so, when Mr Grassia's attention, according to his evidence, was directed towards the other employee. According to Mr Grassia, he was present during the whole of the time the plaintiff was on the table cleaning the ventilator. Even if that were so, it is unlikely that he would not have been aware of what she was doing before she called out to tell him how well the cleaning was proceeding.

11. Neither the plaintiff nor Mr Grassia had a good command of English, although that was the language in which they communicated with each other. It was reasonable, in my view, that the defendant through its senior employees should have foreseen that a conscientious cleaner, which the plaintiff appears to have been, told "not to forget the ventilators" upon which a build up of grease was likely, would be attracted to washing the ventilator with hot water and detergent, instead of merely attempting to dust it. In the circumstances, the discharge of the duty to take reasonable care for the safety of the plaintiff included the issuing of clear instructions, which she might reasonably be expected to understand, that although a proper cleaning of the premises would suggest that the ventilators be cleaned with detergent and hot water, she was not to take that otherwise reasonable course. I am convinced that whatever it was that Mr Grassia said to the plaintiff, it did not convey to her the type of instruction that was required. Mr Enders' instruction not to forget the ventilators did not address the question of the safety of the employees at all.

12. I have little hesitation then in concluding that in failing to ensure that the plaintiff did not climb up on to the table in order to clean the ventilator in circumstances where it was virtually certain that water would drip down on to the surface of the table near where her feet were, thus causing the surface of the table to become slippery, the defendant failed to take reasonable care for the safety of the plaintiff in all the circumstances.

13. In relation to contributory negligence, it is necessary to look a little closer to how it came about that at the critical moment the plaintiff fell. She said that she slipped. It is not immediately apparent why she would have slipped because slipping ordinarily occurs when there is some sort of lateral movement of the weight of the person. However, a very small or short slip on the surface of a table might well cause a person to lose balance and whether the plaintiff fell because she slipped across the slippery surface and off the table or merely overbalanced on the limited surface of the table, does not seem to me to matter. The plaintiff was aware of the danger of slipping. She had taken off her shoes in order to reduce the danger. But the duty of the employer to take reasonable care for the plaintiff, which included the maintenance of a reasonably safe system of work, is not coextensive with the duty of the plaintiff to take reasonable care for her own safety. Once it is accepted, as I think that it must, that the defendant was negligent in failing to insist that the plaintiff not get on the table to clean the ventilator, and in failing to clearly instruct her to attempt to dust it from the floor, then I do not think that it can be shown that the plaintiff acted unreasonably in all the circumstances. The onus is on the defendant to show that she did and I am not satisfied that that onus has been discharged. There will therefore be a finding of negligence in favour of the plaintiff without any apportionment for contributory negligence.

14. I turn now to damages.

15. After her injury the plaintiff was taken to the Royal Canberra Hospital by ambulance. X-rays revealed a dislocation of the right radius and ulna, but no fracture. The dislocation was reduced under local anaesthetic and the plaintiff discharged on the same day. Her elbow was painful and swollen. She had physiotherapy at a local clinic. Her condition did not improve over the next few days and she went to the surgery of her general practitioner, Dr Smith, on 22 December 1987. She was seen on occasions thereafter by Dr Smith and by a locum, Dr Morrison. The surgery notes indicate that when first seen the plaintiff had massive bruising to her upper arm, a swollen elbow and oedema extending to the fingers on the right hand. On the first few occasions her complaints were limited to the elbow, biceps and forearm. On 4 February 1988 she complained that her right knee was painful, but the local doctor clearly did not think that this was associated with the injury because on 23 October 1987 Dr Peter Morris had performed an arthroscopy and biopsy of a patella lesion on that knee. Also on 4 February 1988 she made a further complaint of pain in the right thigh radiating to the calf. Neither Dr Smith nor Dr Morrison was called to give evidence, and the inference is that whoever saw her on that date did not consider this to be of any significance in relation to her injury. On 23 March 1988 the plaintiff complained of lower back pain radiating to the right leg, paresthesia into the right leg. She also complained of pain in the back since the accident worsening from the day before the consultation. The further note is made "complains that she had the back pain since the accident and was bruised down the right buttock and hip". Similar complaints were made on 28 March and on 10 May 1988.

16. In the meantime the plaintiff had been referred back to Dr Peter Morris, an orthopaedic surgeon. Dr Morris had treated the plaintiff for the chondromalacia in her right knee prior to when he saw her on 18 February 1988. For the first time since the injury, the plaintiff's complaints were of pain in the right elbow. Dr Morris' diagnosis at that stage was an injury to the right medial epicondyle. On her next visit on 3 March 1988 her complaints were as before but this time Dr Morris thought there were symptoms relating to the ulnar nerve. He had nerve conduction studies carried out and they confirmed ulnar nerve entrapment. The plaintiff complained to him of pain in the right knee which upon closer questioning extended from the lower back down the right thigh with loss of sensation. Dr Morris then thought that the plaintiff had suffered lumbosacral disc irritation at the time of her injury with resultant mild rightsided sciatica. In his report to Dr Smith of 16 March 1988 he stated that the plaintiff was "keen to get her elbow sorted out before doing too much regarding her back".

17. On 3 May 1988 Dr Morris operated to free up the ulnar nerve, but the plaintiff continued to complain of pain in the lower back and in the right forearm. In her evidence the plaintiff said that prior to the operation the pain in her forearm extended the length of her elbow, with associated pins and needles, and she indicated the lower palmar aspect. However, after the operation she said that the pain in the forearm continued, but she indicated the distal side of the forearm.

18. In her evidence, the plaintiff was not very precise in relation to the condition in her back. She said that she did not feel pain in that area immediately after the injury and she indicated that it was during physiotherapy treatment, apparently in the first few weeks, that she complained of pain between her shoulders. She indicated in evidence that the pain was on both sides of the neck and said that it got worse when she started doing her housework and during changes of weather. She said that the pain continues to the present time, indicating an area from the neck to the centre of the spine at belt level. She also said that she was bruised generally about her trunk, but she did not draw that to the attention of the doctors. In a written claim for worker's compensation completed by the plaintiff on 24 December 1987 the following particulars of injuries were furnished by the plaintiff: "Twisted right elbow bone, neck pain, back pain". The claim form was in fact completed by a fellow worker to whom the plaintiff furnished the particulars. The plaintiff signed the claim form.

19. In about July 1988 the plaintiff decided to move to Adelaide. There appears to have been a mixture of reasons. She said that she and her husband began to have problems after her accident. In the medical evidence it is suggested that her husband was unable to cope because he was deprived of the financial support of the plaintiff. The plaintiff said that her husband's employment in the building industry in Canberra had come to an end, but that his employer was continuing operations in Adelaide and for that reason there was a plan to move to that city. The plaintiff was joined by her husband and subsequently by her youngest son in Adelaide, but the family later separated and her husband returned to Canberra. The plaintiff said that she remained in Adelaide until about November 1990 although it appears that she still has her home in Adelaide. She stays with one or other of her adult children when she is in Canberra. She has a male friend with whom she lives when in Adelaide.

20. In her evidence, the plaintiff described her present problems as essentially the same as those she experienced shortly after her condition settled down after the operation in May 1987. She continues to have pain in her right arm, most of the time. It extends from the elbow down the forearm into the hand on the distal aspect as already described, but from about three or four months after the accident it has also extended from the elbow up into the shoulder. She said that she is unable to straighten the arm. She is unable to raise her forearm above her shoulder so that she has difficulty for instance with brushing her hair. In cross-examination she said that she holds her hand more or less permanently in a claw-like fashion, although she had no apparent discomfort when she straightened her fingers. She did not make any allegations of this nature in her evidence-in-chief. In cross-examination she added that she has pain in the wrist on rotation.

21. The plaintiff also complained in her evidence of her neck pain, about which she was somewhat vague. She said she had not experienced it before the accident and in cross-examination agreed that it was possible that she did not experience any neck pain until about a year after the accident.

22. The plaintiff has not worked since the injury. She gave evidence of efforts to find work both in Adelaide and upon her return to Canberra. It is reasonably clear that she has not made concerted efforts in this regard. In her evidence-in-chief she indicated that she would be capable of light cleaning work, although she seemed to withdraw from this position somewhat during cross-examination. I conclude that she believes that no cleaning work that could be available to her in a practical sense would be suitable having regard to her disability. There is no question that her lack of English would be a considerable impairment in her obtaining work if she had any physical incapacity at all.

23. The plaintiff said that when she went to Adelaide she was treated there by a Dr Klaric. However, there are no medical reports from Dr Klaric and that doctor was not called to give evidence. There was a report from a Dr Kascak, who saw the plaintiff in Adelaide on the first occasion on 2 August 1988. He subsequently saw the plaintiff on five occasions between 2 August 1988 and 31 October 1988. She complained of pain and disability in the right elbow and right arm and of lumbar pain on all occasions. X-rays taken on 20 September 1988 showed some narrowing of the L5-S1 disc space and degenerative changes. Dr Kascak's opinion expressed in his report of 27 November 1988 was that the plaintiff's symptoms and disabilities would last for a long time but hopefully would abate in two or three years. She was not fit for any employment at that stage. She was continuing on pain-killing medication.

24. According to the plaintiff's evidence, when she returned to Canberra she came under the attention of a local practitioner, Dr Voon. There is nothing in the way of evidentiary material from Dr Voon.

25. In February 1989 the defendant arranged for the plaintiff to be examined by Dr Cairns, an orthopaedic surgeon, and Dr Goldrick, a consultant physician. Those examinations took place in Canberra. Both doctors expressed considerable scepticism. Dr Cairns' opinion was that there was minor residual impairment in the right upper arm and no evidence to suggest significant injury to the back. He confirmed that view when he saw the plaintiff again on 25 January 1990. Dr Goldrick took a similar view. Most doctors found inconsistencies in the clinical findings and the complaints which it is not necessary to describe in detail.

26. Dr Lipert, an orthopaedic surgeon, saw the plaintiff in Adelaide on the reference of the defendant on 22 May 1989. He found minor disability in the lower back and the right arm, but thought that the plaintiff would be able to carry out cleaning work as she had done it prior to the injury. He expressed the same view in a report following a subsequent examination on 18 December 1989. Dr Lipert gave evidence that he was unable to find organic changes to account for the pain suffered by the plaintiff. He agreed, however, that the plaintiff's continuing use of strong pain-killers is an indication that she continues to suffer severe pain.

27. Dr Beard, a general surgeon, also saw the plaintiff on behalf of the defendant in Adelaide. The examination took place on 14 August 1990. Dr Beard's report commences with a reference to the plaintiff as "this ex-Hungarian woman" and the comment "I was astounded to learn that almost three years have passed and she has not returned to work and still is receiving compensation payments". Dr Beard considered that the plaintiff's initial elbow injury could not have been very serious because she was not given a general anaesthetic to reduce the dislocation, nor was she was referred to the orthopaedic department of the hospital. Again there was inconsistency between the findings on examination and the complaints. Dr Beard considered that the sequence of pain in the forearm as given by the plaintiff in her evidence was not anatomically possible. He said there was no evidence of damage to the radial nerve and accordingly there was no reason why the plaintiff should have any symptoms in the dorsal aspect of her forearm. He also said that the plaintiff complained of pain going up the arm from the elbow, which was anatomically inconsistent with an elbow injury and that again it was not possible for pain to travel down the shoulder to the hand (the pattern of nerve distribution would send pain from the neck via the armpit) nor possible for pain to travel up the spine. Dr Beard said that if the plaintiff had suffered any injury to her lower back she would have noticed pain during the first week. He did agree that the plaintiff's injury to the elbow was a serious one, and that the dislocation would have involved a stretching of the ulnar nerve with persisting numbness for some months thereafter. However, Dr Beard was of the view that although severe damage to the nerve supply was possible in such a fall, such serious damage (if it had occurred) would have resulted in complete loss of nerve supply to the hand.

28. Dr Danta examined the plaintiff on the reference of her solicitors on 15 October 1990. He found tenderness over the right elbow and wrist, but nothing of significance in the back or neck. He concluded that the plaintiff was moderately disabled. Dr Danta did not have any reports or correspondence before him. The history that the plaintiff gave him was that her backache started two months after the fall.

29. Dr Mann, an orthopaedic surgeon, found that the plaintiff's spine flexion and neck flexion was reduced, although movements of the arms were normal. He concluded that she was fit for light duties if she can locate them and he concluded on the note that assessment of cases such as this is dependent upon the truthful co-operation on the part of the patient and that although he did not believe that the plaintiff was practising deliberate deception, it was "important for that point to be made".

30. The plaintiff was referred to Dr Morris on 7 November 1990. This was more than two years since he had last seen her. On this occasion he found that the plaintiff had full range of movement in her shoulder, elbow and wrist, with no sensory disturbance or muscle weakness in the forearms. However, as far as her back was concerned, Dr Morris thought that it caused her to remain unfit for heavy employent. There was mild tenderness at the lumbosacral junction and at the interview the plaintiff told Dr Morris that that pain had started "three to four months after her initial fall from the table". It was on that basis that Dr Morris considered at that stage that the plaintiff's back condition was not related to the fall and that the x-rays exhibited merely degenerative changes consistent with normal wear and tear. Although the plaintiff's condition of lateral epicondylitis as it had existed in the forearm was directly due to her injury, Dr Morris found no evidence to support any ongoing symptoms from that condition.

31. However, Dr Morris reported again on 20 February 1991, after receiving a letter from the plaintiff's solicitors, that the complaint to him by the plaintiff in March 1988 of pain extending down the right thigh associated with occasional numbness pointed to a lumbar disc lesion consistent with back pain. And at that stage he said he believed that it was conceivable that that pain with the associated rightsided sciatica could well have been precipitated by the significant fall she sustained on 17 December 1987. He added:

"Part of the difficulty of interpretation in this
lady's case, I think, stems from the fact that she
had had surgery to her right patella in October 1987 which
has clouded both Dr Smith's initial examination and
observation, and also my initial assessment regarding this
lady's right leg pain which I think subsequently has been
shown to be at least partially due to her back pain and
rightsided sciatica."

32. When he gave evidence, Dr Morris was asked to make a further assumption, namely the complaint to the general practitioner on 4 February 1988, which is noted on the record, of pain in the right thigh radiating into the calf. Dr Morris said that with that further assumption he felt that the pain described was coming from the plaintiff's lower back and was not due to her previous knee injury. He went on to say that having suffered an injury to the elbow, the symptoms from that injury had taken precedence and that it was not until such time as the elbow became a little more comfortable that the back pain "reached the precedence that it did later on". He maintained this position during cross-examination, laying emphasis on the considerable degree of trauma that would have been experienced by the whole of the plaintiff's body when she fell from the table.

33. As far as the forearm is concerned, Dr Morris expressed the view in his evidence that if the plaintiff's symptoms were accepted as genuine, then they were explicable by reason of a chronic lateral epicondylitis brought about by damage to the nerve endings in the region of the elbow. Dr Morris conceded that it was difficult to give an exact explanation in that at the time of his treatment of the plaintiff she appeared to be suffering from a medial epicondylitis, and that the ulnar nerve which was damaged and repaired did not furnish a supply to the areas in which the plaintiff made ongoing complaint. Nevertheless, he said that if the plaintiff's complaints were genuine then the condition was explicable by damage to the peripheral nerve endings supplying the areas of symptoms being damaged and causing further damage to the muscle bellies of the dorsal aspect of the plaintiff's right forearm.

34. It is difficult to determine the medical issues in this case with any degree of certainty. Foremost is the plaintiff's obvious and genuine difficulty with the English language. She is a person of very little education and appeared to lack simple numeracy skills. For what it is worth, however, I thought overall that she was a genuine witness, but inclined to exaggerate in her own favour when she became confused. As is frequently the case in medical issues, the opinions of the doctors have had to be based on various assumptions. In the end the question whether those assumptions are made out or not is a matter for the Court. The defendant's case, for instance, in relation to the plaintiff's claim in respect of her back condition is that she did not complain of pain in that area until at least some two months after her injury. There is a body of medical opinion in the case to the effect that if that were so, then the back symptoms cannot be causally related to the injury. However, on the probabilities I think that the plaintiff did suffer injury to her back in the considerable fall that she sustained. I think further that this was made evident by complaints that were made much earlier than two months afterwards. First there is the reference to "neck pain, back pain" in the worker's compensation claim form of 24 December 1987. Counsel for the defendant has rightly emphasised that in her evidence when asked specifically as to the location of the pain she first felt in the back, the plaintiff indicated the neck and spoke of the pain extending the whole of the length of the spine. However, the clear reference to pain in the right thigh radiating to the calf at the examination on 4 February 1988, with similar complaints thereafter until there is the specific complaint of low back pain on 16 March, is consistent also with low back pain being experienced shortly after injury and before 24 December 1987. I do not think that the plaintiff should be held to excluding lower back pain in this period by the way she gave her evidence. Once it is accepted that there is a consistent history of genuine lower back and sciatic type pain, then the causal relationship between the back symptoms and the injury must be established on the balance of probabilities. I think that the history and the evidence establishes that relationship.

35. As far as the forearm is concerned, I think that the most likely explanation is that of Dr Morris, that assuming the symptoms continue, there is a condition of continuing epicondylitis caused by damage to the nerve endings in the fall. The remaining problem is to assess the extent of the plaintiff's symptoms and disability. One has to have regard to her background. She had never been in employment until some years after she came to Australia as an uneducated woman and a mother of five children. By the time of her injury she was working long hours, two jobs a day, and sometimes seven days a week. Her tax records in evidence generally confirm this. At the time of her injury, or shortly afterwards, there was a domestic crisis. It is not necessary to decide why it occurred, but occur it did. After living for many years in Canberra in steady employment, and well paid, at least for the reason that she worked such long hours, the plaintiff's life suffered a severe disruption. That disruption cannot, I think, be ascribed exclusively to her injury but the disruption was such that it was likely to cause her to approach the matter of her injury and disabilities less than positively and lead her to exaggerate at least in her own mind, their seriousness. Her own evidence was inconsistent as to the extent to which she can resume duties of a light nature. The plaintiff's evidence of her disabilities was not corroborated by any member of her family or in any other way. The history and complaints to the doctors over the years have to be looked at to see whether they are consistent with her evidence. To some extent they are not so consistent. In particular with regard to the injury to the right arm, I am not convinced by the plaintiff's evidence that she has the degree of disability that she claims. I accept that there is some amount of pain in the lower arm and that it is aggravated by carrying even moderately heavy objects such as bags full of groceries. I conclude that the injury caused an aggravation of an existing degenerative condition in the plaintiff's lumbar spine which continues to incapacitate her for heavy work. I am not convinced that any symptoms in her upper back, shoulders or neck are attributable to the injury. She says she has difficulty looking over her shoulder when driving a car, but she still owns and drives a car. I would not presume to positively predict that the plaintiff is likely to improve when the case is over, but I am not convinced that she will get worse, or that if she does, any deterioration will be as a result of her injury.

36. The difficulty that the defendant faces in this particular case is that once the plaintiff's ongoing disability is established, the principle applies that the defendant has to take the plaintiff as she was and that was a person whose range of employability was, because of her background, very limited. On the other hand, although it is understandable that the plaintiff does not continue to make efforts to obtain employment, the fact is that she is not physically rendered unfit for employment. In my view, it would be unrealistic to regard the plaintiff as totally and permanently incapacitated for work as a result of the injuries she sustained in December 1987.

37. I think the plaintiff should be regarded as totally incapacitated from the date of injury for a period of one year. In the tax year 1986/87 she earned approximately $12,000 before tax from her work at the Australian National University and $14,000 before tax from her work with Weston Cleaning Services. Her taxable income for that year was $28,000. Some documents in evidence indicate that the defendant was paying the plaintiff for a 40 hour fortnight, or 20 hours a week, at some stage after 26 June 1987. This would indicate that the plaintiff's working hours were not as long as she said in her evidence, and some allowance must be made for that. I think that at the time of her injury she should be taken to have been earing about $20,000 per year, or $400 per week after tax, and she will be awarded $20,000 for the loss of earning capacity for the first year after injury.

38. Thereafter I think that she has been capable of carrying out some cleaning work, but allowance must be made for the fact that it will be quite difficult for her, no matter how hard she tries, to obtain such employment. I would regard her as having effectively lost 60 percent of her earning capacity for the remainder of the period to date. The loss is to be measured then at $12,000 per year or $230 per week. For the period 17 December 1988 to date I would award a round figure of $30,000. The total award for past loss of earning capacity is $50,000.

39. For the future, I expect that the plaintiff would not have worked beyond age 60, and I expect also that she would not have continued to work the long hours that she was working at the date of injury. Not only would her own physical capacity decline as she grew older, but it also cannot be overlooked that in the present and foreseeable economic climate job opportunities even for the able bodied are not what they have been in the past. The contingencies that must be provided for in the assessment of future loss of earning capacity include the possibility that the plaintiff's condition will improve as she develops a less pessimistic perception of her own position, the possibility that with her degenerative back condition she might have been incapacitated in any event, the probability that she would not have continued to work at two jobs, as well as the conventional vicissitudes of life. These factors must not be taken into consideration so that there is in effect a double discount in calculating both the likely periodic loss and reducing the overall figure for the same or similar reasons. However, I am not convinced that it is appropriate to regard the plaintiff as totally incapacitated until her anticipated retiring age but for injury. I think the appropriate way to approach the matter is to regard the plaintiff as suffering a partial incapacity for work as a result of her injury lasting for a further six years into the future. I assess that continuing loss of earning capacity at $150 per week, taking into account the contingencies to which I have made reference, other than the conventional vicissitudes. At a discount rate of 3% the present value of a loss of $150 per week for six years is $43,050 and in view of the short period I make a further slight reduction for conventional vicissitudes to round the figure out to $40,000. I add another $15,000 as a hedge or buffer for continuing loss after the six year period and award a total of $55,000 for loss of future earning capacity.

40. For pain and suffering and loss of enjoyment of life I award the sum of $30,000, as to which I assess two-thirds for the past. Interest thereon calculated at 4 percent is $2,800.

41. The plaintiff received $34,136 by way of worker's compensation and the difference between that and the award of $50,000 for past loss of earning capacity is $15,864. I award interest thereon at the rate of 14 percent and reduce the result by half, which gives an amount of $3,886.68.

42. There is a claim under Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, but I am not convinced that the small amount of household work that was carried out by the plaintiff's husband and her son and male friend has been anything more than a convenient readjustment of household duties, most of which one would have expected the male members to have carried out in any event. There will be no award under this head. I subsume into the award for loss of enjoyment of life the difficulties the plaintiff has had with the carrying out of the heavier household duties.

43. Out-of-pocket expenses are agreed at $5,318 An amount of $1,405 for physiotherapy expenses is disputed as not being reasonable having regard to the plaintiff's condition. The plaintiff did incur these expenses, she did have a degree of disability and some continuing symptoms, and I think it was reasonable for her to have had the physiotherapy treatment. I award the total of $6,723 for out-of-pocket expenses.

44. The damages awarded are as follows:

Past loss of earning capacity $ 50,000.00
Future loss of earning capactiy $ 55,000.00
Pain and suffering and loss of
enjoyment of life $ 30,000.00
Out-of-pocket expenses $ 6,723.00
Total: $141,723.00

45. Looking at this figure globally I think it is appropriate having regard to the plaintiff's condition and symptoms as established by the evidence. To that I add the amount of $6,686.68 for interest. The total is $148,409.68 and the plaintiff is to have judgment for that sum. Unless the parties wish to be heard I propose to order that the defendant pay the plaintiff's costs.