Jan Hurley v Hertz Asia Pacific Limited T/As Hertz Rent-A-Car [1992] ACTSC 110 (30 October 1992)

SUPREME COURT OF THE ACT

JAN HURLEY v. HERTZ ASIA PACIFIC LIMITED T/AS HERTZ RENT-A-CAR
No. SC 609 of 1987
Number of pages - 35
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Negligence - Employer - Place of work - Unsafe step - No issue of principle.

Damages - Personal injury - Work accident - Lumbo-sacral disc disruption - No issue of principle.

Evidence Act 1971

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

HEARING

CANBERRA
30:10:1992

Counsel for the Plaintiff: G. A. Stretton

Instructing Solicitors: Macphillamy Cummins Gibson

Counsel for the Defendant: M. Joseph

Instructing Solicitors: Minter Ellison

ORDER

The Court orders that:
1. Judgment be entered for the plaintiff for $184,799.

DECISION

This is the assessment of damages for personal injuries which the plaintiff alleges she suffered at work on 30 June 1985.

2. The plaintiff was born on 2 April 1952. She was educated to Year 10, and then worked on her parents' farm. She married at the age of 17 years, and moved with her husband to Queanbeyan. Her first child was born in 1970, after which she worked at a number of jobs as a waitress and shop attendant.

3. She separated from her husband and was divorced in 1974. She entered into a de facto relationship with a Mr Siegmund in 1975. In October 1975 her second child, Belinda, was born. After that birth, she suffered some gynaecological problems. Belinda died in July 1976.

4. In August 1976 she obtained work as a clerical assistant with Avis at the Canberra Airport Service Station. In June 1979 the defendant took over the business of car rental at the Airport, and the plaintiff transferred to the new company, taking on further duties and becoming a permanent employee. At first her position was part time, but it was later upgraded to full time.

5. In the early part of 1984 her relationship with Mr Siegmund terminated.

6. In October 1984 a Mr Bartell became manager of the defendant's Canberra Airport branch. In early 1985 the plaintiff was sent on a management course for rental representatives at the head office of the defendant, and she was later promoted to assistant manager.

7. Soon after Mr Bartell became manager, it seems that he decided that more office space was needed. He arranged for a portable office building to be provided, which was referred to in evidence as a "port-o-com".

8. The building consisted of a simple metal box structure, constructed to be self supporting, and resting on what appeared to be brick piers. There was a door in the centre of one side with a window on each side of it. There was no step constructed at the front door. Electricity was supplied to the building by a power line, which ran from a connection on the fascia of the service station building, which was to the side of the portable building. Near the point where that power line was connected to the service station fascia, there was a light which would have illuminated the front of the portable building to some extent.

9. The height of the floor of the building from the ground at the door was of the order of 18 inches to 2 feet. It was estimated by the plaintiff and Mr Robinson as being just below knee level. Without any step there would obviously have been a difficult and inconvenient method of entry into the building.

10. Sometime early in 1985, about March, some person placed at the door a step which was constructed of a plank resting upon bricks. The plank was not fixed to the bricks, so that the step was not held together by any means, nor was it attached to the building in any way. There was no hand rail near it.

11. Mr Robinson, who was then working for the defendant as a car detailer, gave evidence that before the plaintiff's accident he had himself experienced instability when he had placed his foot on the step. His evidence on that issue was attacked in cross-examination. The plaintiff's evidence about it was attacked even more severely, especially on the issue of whether he slipped before or after her accident.

12. I am inclined to accept his evidence that he encountered the instability, but I do not think that it matters very much whether it was before or after the plaintiff's accident. There is no evidence that he reported the incident to anyone in authority within the defendant company. But his evidence is more important on the issue of whether there was an unstable step at the entry to the building, rather than whether the defendant's manager had been told about it.

13. I am satisfied that a structure of the type described was provided, and that it was there for a sufficiently long period before the date on which the plaintiff claims she had her accident, so that the manager had ample opportunity to become aware of it. I am also satisfied that a structure of that type was so obviously unstable that the manager was, or ought to have been, aware of that instability.

14. Mr Robinson also gave evidence that at some time before the plaintiff's accident, he and a number of fellow workers were playing football, and the ball struck the light on the side of the service station building, breaking it. He claimed that Mr Bartell, the manager, reprimanded them immediately afterwards.

15. That evidence was also attacked in cross-examination. The date when the light was broken cannot be determined with any accuracy on the evidence, but on the basis of Mr Robinson's evidence and that of the plaintiff, I am satisfied that it was broken some time before 30 June 1985, and that it was not broken so shortly before the accident that the defendant's manager would not have been aware of the fact.

16. The plaintiff's case was that on 28 June 1985, a Friday, Mr Bartell instructed her to come to work on Sunday, 30 June 1985, to physically count and identify all the vehicles for which the branch was responsible. She claims that she arrived at work at about dusk on the Sunday. At about 9.45 pm she claims that she had finished the count, and proceeded from the desk in the airport terminal to the portable building where she normally worked. She was carrying papers, ruler, pencil and her keys.

17. At the front of the portable building she alleges that a number of cars were parked with the rear of the vehicles close to the building. She had to walk between the rear of the cars and the front of the building to get to the door. That area was in darkness.

18. The plaintiff was cross-examined about the state of the lighting. It was suggested to her that light coming from the service station area was adequate. It was also suggested that cars were not lined up in such a way as to restrict the lighting.

19. Apart from the photographs in evidence, there is no real evidence about what the state of the lighting in the area at night was, other than that of the plaintiff, Mr Robinson and Mrs Collins. The only lights shown in the photographs are street lights on the other side, that is, at the rear, of the portable building. Mrs Collins, who also worked in the building before and shortly after the alleged accident, said that there was fluorescent lighting over the bowsers, and large lights situated in the street and on the service station grounds. There was no evidence about their position, or that the service station lights were on at the time. Mrs Collins agreed that there was no light at the portable building itself, but that she herself had no problem. That evidence does not cause me to doubt the plaintiff's evidence that on the night of 30 June 1985 the entrance to the building was not adequately illuminated.

20. The plaintiff says that as she reached the door she put one foot onto the temporary step and went to unlock the door. As she did so she lost her balance and saved herself by twisting and bracing herself against the parked cars. When asked how she came to lose her balance, she said that she was not sure exactly if her foot just slipped off the step, or whether the step moved as she went to reach for the door.

21. After she slipped, she felt a pain in her lower back. She managed to get into the building and leave her papers there. She then drove home and had a hot bath.

22. The plaintiff's general practitioner since 1978 had been Dr Goldrick. She had been under the care of Dr Hehir for her gynaecological problems. Dr Goldrick was called by the defendant to give evidence.

23. On 8 May 1984 the plaintiff had consulted Dr Goldrick about her condition following an altercation with her de facto husband. The injuries that Dr Goldrick noted were bruises on the right arm, two on the inner side of the upper arm and one below the elbow; small bruises on the left arm; a large puffy swelling on the right foot; and a painful back. The doctor's main concern was the right foot as she felt that the plaintiff had suffered a torn ligament.

24. That was the first occasion on which the plaintiff ever complained of back ache to Dr Goldrick.

25. The doctor then made a number of investigations not relevant to this case, dealing with her ankle and a complaint of headache.

26. On 25 June 1985, five days before the alleged accident, the plaintiff attended Dr Goldrick complaining of a sore throat for which Amoxycillin was prescribed. Dr Goldrick also noted a complaint that she had a sore back and leg or legs. The doctor prescribed Voltaren and recommended an X-ray, which was taken on 25 June 1985 by Dr Griffin. Dr Griffin's report reads as follows:

"Spina bifida of S1 is noted. There is a slight lower lumbar
scoliosis present. No disc space narrowing of (sic) other
abnormality could be detected."

27. Dr Chandran later saw the X-ray and thought that it demonstrated some narrowing of the disc space at L5/S1, indicating long standing degeneration at that level.

28. In the week after the alleged accident the plaintiff went back to work. She did not consult her doctor immediately. A few days later she began to experience pain in the lower back, extending to her right leg.

29. She claims that she did not see a doctor straight away because she thought that the pain in her back resulted from the pelvic adhesions, about which she had no confidence that the doctors could do anything. She did consult Dr Goldrick on 5 September 1985. She was complaining of aching groins and back, which the doctor referred back to the complaints made at the visit on 25 June 1985. The plaintiff made no mention to Dr Goldrick of the fall at work. Dr Goldrick prescribed Brufen, and referred the patient to Dr Hehir, her gynaecologist.

30. The plaintiff decided to consult a chiropractor, Mr Tapper, who was called to give evidence by the defendant. Before his examination of her the plaintiff filled in a form, which was mainly a health questionnaire, and which contained details of her name and address and so on. In that form she described her complaint as being "pain from waist to ankle right side". In the health questionnaire she ticked the items showing "painful low back", "painful leg", "tingling or numbness of legs", "weakness of legs".

31. Given the choice to nominate whether the accident occurred from work, auto accident, sport, home or other, she ticked "other".

32. The notes made by Mr Tapper of her complaints to him were of right sciatic pain. The character was "three months sharp jabbing pains". Severity was "slowly getting worse". The duration was "three months NOR". The previous history was "no history of lbp". There was a note of "adhesions - abdominal from tubes".

33. In evidence, Mr Tapper explained that "NOR" meant there was no obvious reason for the condition.

34. In cross-examination Mr Tapper agreed that the plaintiff presented with quite severe right sciatic pain and that his note about adhesions was the result of a statement by the plaintiff to suggest that they may have been the cause of her symptoms. It is tolerably clear that at the time of her first treatment by Mr Tapper the plaintiff was not attributing her back pain to any accident at work.

35. The chiropractic treatment eased the pain for a little while but it then became worse. She saw Mr Tapper on eight occasions between 9 and 27 September 1985. She then stopped going to him.

36. On 30 September she returned to Dr Goldrick's surgery where she was seen by Dr Evans, who was her locum at the time. She saw Dr Evans again on 4 October. Dr Evans did not give evidence, but on reading her notes Dr Goldrick commented that the plaintiff had attended with problems much more serious than on the occasions when she had seen her. There was a quite clear delineation of right sciatic nerve root pain, and the fact that Dr Evans prescribed bed rest and physiotherapy suggested that there was a major problem. Dr Evans prescribed Voltaren and apparently considered a referral to Dr Chandran, a neurosurgeon.

37. The plaintiff had planned to marry on 5 October 1985. In accordance with Dr Evans's advice she spent the week before the wedding in bed, suffering from severe back pain. She went through with the ceremony but she was in such pain that she sat in a chair throughout it.

38. She and her husband had intended to honeymoon in Queensland immediately after the wedding. They delayed the departure for a week in the hope that her back condition would improve. They then went to Queensland for their honeymoon and stayed away for two weeks. They were not able to enjoy the planned sailing holiday, but spent most of the time moored at Hamilton Island. During the holiday she consulted a doctor who gave her some pain killers and recommended that she see a specialist. The doctor gave her a note to Dr Chandran.

39. She first saw Dr Chandran on 6 November 1985. He noted that she had been referred by a general practitioner in Queensland where her pain had become unbearable whilst she was on her honeymoon. She claimed to him that in June 1985 she had developed pain in her lower back two days after she had slipped on the temporary step at work. She said that during July 1985 the pain extended insidiously into the right leg, had increased, and she had consulted a chiropractor, achieving temporary relief. She also gave a history of pain in the back extending into the right hip and groin attributed to adhesions in her abdomen.

40. On examination, Dr Chandran found that she was in considerable pain. There was weakness of the muscles of the right leg. Right ankle jerk was absent and sensation was diminished over the L5/S1 distribution. Straight leg raising was 45 degrees on the right and 90 degrees on the left. He arranged for a CAT scan. This was taken on 13 November 1985 and demonstrated a large disc protrusion at L5/S1 level. He advised physiotherapy to see if that would help, but also advised that, if it did not, surgery would be necessary.

41. Dr Chandran reviewed her on 25 November and found her to be in considerable pain. The decision was made to undergo surgery. The plaintiff suffered from a bleeding disorder, so that it was necessary for operative treatment to be carried out at a major hospital. There was industrial action at the hospital at the time, and it was not possible to admit her immediately.

42. Eventually, after spending a night in the Casualty Department, she managed to obtain admission to the hospital. On 9 December 1985 Dr Chandran carried out a lumbar disc excision on the right side at L5/S1 level. He found a large disc protrusion under the nerve root and removed it. He noted that the disc space was very narrow. The plaintiff continued to need transfusions for the blood disorder but experienced a reaction which caused her considerable distress.

43. When Dr Chandran reviewed her on 20 January 1986 he found her to have shown considerable improvement in her symptoms. There was still some pain in the back and right thigh, and straight leg raising had increased to 80 degrees. He advised her to continue with a program of exercises. She spent approximately ten days in hospital. After she recovered from the operation she was relieved to find that she could walk normally. She was weak and tired but felt much better.

44. She decided not to return to work at Hertz. Although her job involved no heavy bending, stooping or lifting, and she was able to move about at will, she considered that the need to get into and out of cars and to move them around between the service station, the airport and various parts of town would impose too much strain upon her. The medical evidence was that she would have been physically capable of performing her duties with the defendant, but I think that it was a reasonable expectation on her part that to continue in the job would cause her too much pain and discomfort and that she acted reasonably in terminating her employment there. She did not do so merely to avoid working. She immediately sought other employment.

45. She soon obtained other work, as an office assistant with a finance firm called Short Term Acceptances, where she began work on 17 February 1986. She found that she was able to cope with the work involved. Over 1986 and 1987, although she was never free of pain, her condition was reasonable. Early in 1988, however, she began to experience increased aching at the site of the surgery with some pain down the back of the right leg. She consulted a neurologist, Dr Owen White, during May 1988.

46. Dr White gave evidence and was cross-examined. On his examination he found tenderness over the scar, but the associated muscles were essentially free of pain. There was a full range of movement of the lower back, except for flexion which was limited to 40 degrees. Straight leg raising was limited to 40 degrees on the right. In his opinion, the plaintiff had suffered a significant injury to her L5/S1 disc on the basis of both the clinical and the radiological findings. He thought that her condition at that time was consistent with injury to the nerve in the past and perhaps some continuing mild inflammation in the region of the operation site. He thought her condition could be improved to some extent with physiotherapy and pain relief, but in his opinion it was likely that she would continue to have low back pain on an intermittent basis which would require both medication and physiotherapy.

47. In his evidence he made it clear that the type of accident that the plaintiff claimed to have suffered was precisely the type of happening that would be likely to cause damage to the disc. He thought that the chance that the condition of the disc shown on the CT scan might not have been caused traumatically was almost insignificantly small. He conceded that if the annulus fibrosus had been injured in the incident of May 1984, a weakness could have been created which might not have shown on the plain X-ray in June 1985, and yet be susceptible of sudden damage from a relatively slight incident. There was, however, no evidence in the case that the annulus had in fact been injured in May 1984. There was nothing in the history either given to Dr White or in the evidence to suggest that there was any direct back injury at that time. I agree with the comment of Dr White that in the absence of any evidence to suggest it, I would not suspect it.

48. At about the same time, she went back to see Dr Chandran, on 26 May 1988. He found mild impairment of sensation in the S1 nerve root distribution. He ordered a CAT scan and X-rays which were taken on 28 June 1988. The X-rays showed a slight narrowing of the L5/S1 disc space and the CAT scan showed a recurrence of the disc protrusion on the right at the L5/S1 level. He referred her for a course of physiotherapy and she obtained apparatus which enabled her to undergo traction at home. When Dr Chandran reviewed her on 8 August 1988, she said that the traction treatment was helping her but that she was still having some pain in the leg and tingling in the heel. Straight leg raising had improved to 90 degrees on each side.

49. She and her husband wanted to have another child, which she was not able to do without assistance. At about this time she was attending the In Vitro Fertilisation Program, and was eventually successful in becoming pregnant. Her son, Michael, was born in January 1990. During the pregnancy, of course, her back pain was increased, but she expressed herself surprised that it was not as bad as it could have been.

50. She returned to work in July 1990.

51. On 25 July 1990, Dr Danta, neurologist, saw her at the request of her solicitors. He thought that the most likely cause of the increase in her symptoms was further protrusion of the disc, and that further surgery might be necessary.

52. Dr Chandran reviewed her on 28 March 1991. On examination he found weakness of plantar flexion, absent ankle jerk and impaired sensation over S1 distribution on the right. Straight leg raising was only 60 degrees on the right and 80 degrees on the left. Lumbar flexion and extension were limited to 50 percent of normal range. In his opinion, the plaintiff continued to have sciatic pain which had recently become worse requiring physiotherapy. The increase in symptoms was related to the physical activities involved in caring for her 16 month old child. He attributed the symptoms to a recurrence of the disc protrusion at the site of the original injury, and thought that she was likely to require a further disc excision.

53. In September 1991, she was retrenched from her position at Short Term Acceptances because of the financial condition of that firm. She and her husband then purchased a business of producing photographic signs. They have carried on that business since. She works in it about 15 hours a week.

54. Dr Danta saw her again on 17 May 1991. She complained that the intensity of the pain in the back and the right leg had increased. He also noted that the right ankle jerk was now absent or greatly reduced and there was numbness over the outer border of the right foot. The CT scan demonstrated a large disc protrusion largely on the right side at the lumbo sacral level. He also thought that she should have further surgery.

55. The plaintiff continues to suffer the discomfort because she does not want to have further surgery until her child is a little older. I think that decision is a reasonable one for her to make.

56. Dr Chandran was called to give evidence and was cross-examined. He was given a more detailed history than he had noted. He noted that there was a single complaint of back pain after the incident in May 1984 and nothing thereafter until June 1985. It seemed unlikely to him that there had been a significant injury to the back on that occasion. There was some narrowing of the disc space seen in the X-rays done in June 1985. That could mean that there had been some insult to the disc before, but he could not say that it happened one year before the incident in June 1985. He could only state that, based on the fact that there were no symptoms between May 1984 and June 1985, in his opinion the incident in May 1984 had not caused significant injury to her back. The history of her complaints after the incident of June 1985 was quite consistent with the evolution of her back problem. It is clear that the estimates of time that had elapsed which were given to him by the plaintiff in her original history to him were to some extent inaccurate, if she in fact suffered the injury on the date that she complains of. He adhered to his opinion that even without a pre-existing disc abnormality the type of accident described by the plaintiff could still have damaged the disc.

57. Dr Danta was also called for the plaintiff and cross-examined. He also agreed that an accident of the type described was capable of causing a disc protrusion even in the absence of pre-existing disc lesion.

58. Counsel for the defendant argued that I should not accept the evidence of the plaintiff. He submitted that her credibility had been damaged to such an extent that I should require corroboration, that corroboration was available, and that it was not produced.

59. The first matter, and the most important, on which she was attacked was whether the accident happened at all.

60. It was put to her in cross-examination that she had not told Dr Goldrick, Dr Evans, Mr Tapper (the chiropractor) or Mr Hammond (the physiotherapist to whom she was sent by Dr Evans) that she had hurt her back in a fall at work. It is abundantly clear that she did not do so.

61. It was then put to her:

"Because it hadn't occurred, had it, madam? --- Yes it had.
It was only after you saw the doctor that you were referred to Dr
Chandran that you decided to make up this story that you had a
fall at work so you could claim it on compensation? --- No."

62. That, of course, is a serious allegation. It is tantamount to asserting that the plaintiff engaged in an attempt to defraud the compensation insurer, and is now attempting, by consciously perjured evidence, to defraud the defendant's third party insurer.

63. In some circumstances it might be argued that a defendant should give notice of such a defence, that the defendant would bear the onus of showing it, and that it would be required to demonstrate it to the standard discussed in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

64. I experienced some difficulty in finding out precisely how counsel for the defendant did put this aspect of his case.

65. In his final address he submitted:

"This plaintiff has constructed, when she is her own boss, a
situation where she can attend work late at night, independent
of any witnesses, to have an accident."

66. That suggests a plan by her, before that evening, to arrange to do the fleet count in the evening (instead of in the day time when it was usual to do it), simply in order to be able to explain why there would be no other witnesses available to corroborate her story about an accident that had not yet happened to her, to explain an injury from which she was not yet suffering.

67. The plaintiff was cross-examined about the claim that she made for workers compensation. She claimed that she did not advert to the possibility of such a claim when she consulted the chiropractor. Mr Joseph put to her:

"The reason why you didn't consider it, madam, is because you
didn't believe what you were suffering from had anything to do
with any alleged fall at the Canberra Airport, did you?"

She replied:

"I believed it was still something to do with my adhesions."

68. She was then cross-examined about the contents of the claim form that she filled in, and the dates of X-rays that she referred to in it. That document was marked, but not tendered in evidence. Her version of the time at which Mr Robinson slipped on the step was different in that document from the sequence of events that she set out later in answers to interrogatories.

69. During the final addresses the following discussion took place:

"MR JOSEPH: The question of the claim form and payment of compensation,
as I have indicated to you earlier, the claim form was constructed in
what now appears to be a dishonest fashion, but on the face of it
provided justification for the compensation being paid and any admission
that you might draw from a payment of compensation should be seen ---
MASTER: No, I would not draw any inference from that, naturally if it
is a negligence claim.
MR JOSEPH: As to whether the accident occurred.
MASTER: Yes. Well, that is your submission. Or, what is your
submission? She was not even at work that night?
MR JOSEPH: No. Well, I do not need to go that far, obviously. All I
put to you, Master, is that the ---
MASTER: What you seemed to say in chief was that she went there and
took the opportunity to construct a claim that an accident happened
which, in fact, did not happen, which is an allegation of fraud.
MR JOSEPH: All I need to say - I have never specifically pleaded it,
except to say that the onus is on the plaintiff to satisfy you that it
did occur. And that there are a number of facts that would indicate to
you that it might well not have occurred.
MASTER: Because you are in reply, I have a legal reason, a matter about
the law and the proper test to apply to what I might call, a raised
suspicion of a serious offence.
MR JOSEPH: Well, we have that onus, if it is fraud we are alleging, but
we do not put it that high. We simply say you will not be satisfied
that the accident occurred.
MASTER: That is your submission?
MR JOSEPH: Yes.
MASTER: Yes, I note that.
MR JOSEPH: Can I just take you to the ---
MASTER: In other words, let us be quite clear about it, fraud is not
alleged?
MR JOSEPH: Not in specific terms, no. Dishonesty - not in specific
terms. We say that there has been ---
MASTER: Well, if there was not an accident and she made a claim for
workers compensation, based upon the fact that there was an accident,
that is obtaining money by false pretences. Is that alleged or is it
not?
MR JOSEPH: We say that you will not be satisfied that the accident
occurred. If you are satisfied that she also claimed moneys knowing
that the accident did not happen, then that is clearly fraud. My friend
said that she made concessions against her interest in evidence. My
submission is simply this. Mr Robinson was not contacted till 1992. At
that stage they were not aware as to what his evidence was going to be
on the matters of which he did give evidence of.
MASTER: Who was not aware?
MR JOSEPH: The plaintiff. Because he had not been contacted about
these matters and therefore rather than not call him at all, there was a
deliberate plan to change the interrogatories to suit the evidence of Mr
Robinson. ..."

70. I do not think it is too harsh to describe those submissions as being made by one who was anxious to wound, but afraid to strike.

71. Because the suggestion of invention was not made in terms until the third day of the hearing, it is hardly surprising that the plaintiff's advisers did not come armed with corroborative evidence about the happening of the accident or about the stock count being taken at night and not by day. In any event, as counsel for the defendant himself pointed out, there was no one else there at the time of the alleged accident, so no direct corroborative evidence of the accident itself could possibly be available.

72. Apart from the attacks made on the plaintiff's evidence in cross-examination, the only evidence called by the defendant in support of the proposition that the plaintiff had invented her story of an accident was that of Mrs Collins.

73. She had worked for the defendant together with the plaintiff from June of 1983 until she went on maternity leave in July 1984. She did not return to work until July 1985, after the alleged accident.

74. She had undertaken fleet counts on a number of occasions, and her evidence was that it was normally done during the day, by herself or Mr Bartell, or, on weekends, by one of the women working at the counter in the airport terminal.

75. Mr Bartell had left the defendant's employment, and, on the evidence, has been in the United States for some time.

76. Whether there existed any statement made by him, or any other business documents of the defendant that might have been admissible under the Evidence Act 1971, I do not know.

77. Mrs Collins appeared to me to be anxious, for some reason which did not appear from the evidence, not to concede any facts that might possibly, in her view, assist the plaintiff. She also did not give evidence that she had ever conducted a fleet count at the end of a financial year. There may well have been reasons, for example, to ensure an accurate statement in a balance sheet, why that particular count should take place after the close of business on 30 June, rather than in the middle of the day, even though a mid-day count would suffice for the ordinary processes of management during the rest of the year. That I do not know, but if it were not so it would be the defendant which might be expected to call evidence about its system, from a source more knowledgeable and authoritative than Mrs Collins.

78. That Mrs Collins had previously carried out such fleet counts as she did undertake in the daytime is not inconsistent with the plaintiff's evidence that on this occasion Mr Bartell instructed her to do it in the evening of the last day of the financial year.

79. The plaintiff's husband did corroborate her evidence to the extent of giving evidence that she said she was going to work at the airport that night, and that when she returned she complained of having fallen on the step at work and twisted her back. He said she also complained about pain that evening. That evidence was strenuously objected to by counsel for the defendant. There is some irony therefore in his criticism of the plaintiff's case that there were not called a number of friends who might or might not have heard her make similar statements at times more distant from the accident.

80. The plaintiff did not fare well during her cross-examination by Mr Joseph. Unfortunately for her, she tended to allow herself to add argumentative matter to her answers. Such witnesses are often as lambs led to the slaughter at the hands of a cross-examiner of Mr Joseph's style.

81. Much was made by counsel for the defendant of her having conducted conveyancing transactions for friends, for reward, until caught out by the Law Society. She did try frantically to avoid admitting that she had done so for reward, which I think she had done. I am not forced by that very peripheral conclusion to infer that she is concocting a false story in order to obtain damages.

82. Having considered again anxiously all the criticisms made of her, I accept her statement that at first she thought her back problems were related to her pelvic condition. It is consistent with the evidence of the doctor who knew her best, Dr Goldrick.

83. Despite the inaccuracies in her history of the onset of pain to the doctors, there is no doubt that there was a serious injury to the lumbo sacral disc. Dr Chandran saw evidence of it on the CAT scan and saw it at the operation. By the time the plaintiff consulted Dr Evans it is now clear, no matter what the plaintiff thought about its aetiology, that she was suffering from the effects of that disruption. It is clear from the evidence of the neurologists that such an onset at such a time was consistent with her having injured herself in the manner she described.

84. In the event, as I have considered the whole of the evidence with care and over a period of time, I do not find it necessary to rely upon any question about where the onus of proof might be. Let it be accepted that despite the implications of the defence put forward, the plaintiff must prove her case.

85. I am, simply, comfortably satisfied that, despite all the criticisms of the plaintiff and her evidence, she did suffer an accident in the way that she described, and that the accident was the cause of the damage to her spine.

86. The particulars of negligence in the Statement of Claim, fairly read, include providing an unstable step, failing to illuminate the entrance to the building, causing the fleet cars to be parked so that they restricted entry, and failure to provide a handrail.

87. I am satisfied that in each of those respects the defendant failed to take reasonable care for the safety of the plaintiff. I do not think that the absence of a handrail contributed much, if anything, to this accident.

88. But I do not think it matters whether the step itself moved in any way or whether the plaintiff simply slipped on it. In the restricted space available, and unlit, I am satisfied that it was the condition of the entry to the building that was the cause of the plaintiff's slipping.

89. I am further satisfied that the defendant's manager was aware of each of those defects, and that it was foreseeable that a worker seeking to enter the "port-o-com" building at night might well suffer injury by losing balance on such a step.

90. It does not require expert evidence to demonstrate that it would have been reasonably possible to provide a firm step, with proper lighting.

91. There will therefore be judgment for the plaintiff.

92. A defence of contributory negligence was raised.

93. So far as it depended on an allegation that in the immediate circumstances of the accident she failed to take reasonable care for her own safety, I am not satisfied that there was any reasonable precaution that she failed to take, or any failure on her part to take due account of the nature of the entry into the building.

94. It was also alleged that, in the temporary absence of the manager, as next in charge, it was her duty to ensure that the work premises were reasonably safe. I am not satisfied that her position with the defendant was such that she was under any obligation, or that she had any right, or indeed any opportunity, to give any directions about the state of the premises.

95. There will therefore be no reduction in her damages on account of contributory negligence.

96. In summary, therefore, I am satisfied that the plaintiff injured her lumbo sacral spine in an accident at work on 30 June 1985. The accident caused a protrusion of the disc at that level which caused her increasing pain, especially during the weeks before and after her wedding and during her honeymoon in October 1985. She underwent an operation on the spine on 9 December 1985, and suffered considerably during the recovery period.

97. After the recovery she enjoyed about two years of only occasional discomfort, but the pain gradually became worse, and a diagnosis has now been made of a further disc protrusion, which I attribute to the accident. I think that in all probability she will have to undergo another operation, even though the statistical probability that the operation will relieve her pain is not as high as for a first operation. I think her decision to postpone the operation until her child is older is reasonable.

98. There was a demonstrated narrowing of the L5/S1 disc space before the accident, and she had suffered some back discomfort before the accident. I do not think, however, that there was any demonstrated pathology of the disc at the L5/S1 level until this accident happened. There would be, however, a chance greater than normal that she might have suffered some injury to the back at that level from some other incident, but in my view, on the evidence, that increase in likelihood is not very great.

99. I assess damages for her pain and suffering at $50,000, of which $15,000 relates to the future.

100. Interest on the past component is calculated by reference to a rate of 4 percent, but a large part of her pain is attributable to the early part of the period, the second half of 1985 and early 1986. It began to be significant again in 1988 and 1989. I award a lump sum of $6,000 in lieu of interest on the past component of general damages.

101. The plaintiff's case on her loss of income is based upon the proposition that she was already assistant manager, and would have become the manager when Mr Bartell left. That proposition is supported by the fact that Mr Robinson, who had been a mere car detailer, and under her supervision before her accident, did become the manager in her absence.

102. Some doubt was sought to be cast on that proposition by the evidence of Mrs Collins, who was described as a supervisor, which she claimed was a superior position to that of the plaintiff.

103. The plaintiff said in evidence that she did not know whether a supervisor outranked an assistant manager. I share her ignorance. But in the absence of any evidence from the defendant on the matter other than that of Mrs Collins, I feel more confident in concluding that it was indeed quite on the cards, though it was not a certainty, that she might have succeeded Mr Bartell as manager.

104. The total of the claim for past loss of earnings is not as set out in the further amended statement of particulars, but as analysed in a list handed up by counsel for the plaintiff during argument, which for the sake of identification I have added to Exhibit "H", which is the source of much of the detail in it. The defendant contested the assumption implicit in the claim that the plaintiff would have been appointed manager when Mr Bartell left, but did not otherwise contest the quantification of this part of the claim.

105. Mr Robinson suffered a reduction in salary after his appointment. It is not certain that the plaintiff might not also have had the same experience. There is no evidence that Hertz has continued to have an office, with a manager, at the airport until the present. There are also the ordinary contingencies to consider. The difference between what she would have earned had she obtained the position and been paid at the same rate, on the one hand, and what she has earned on the other is $35,485. That sum must be considerably discounted on account of those contingencies.

106. I award $25,000 for past loss of earnings. Using a rate of 7 percent as an indicator, and accepting 9 December 1987 as being the commencement date, I award $10,000 as interest on past loss of income.

107. The out-of-pocket expenses paid by the workers compensation insurer total $4,350 in round figures. There were further agreed expenses of $1,042. I am satisfied that the other expenses claimed, which were not admitted, totalling $5,237, were properly incurred. I am not so satisfied in respect of the car hire and underwear. I therefore award $10,629 for out-of-pocket expenses.

108. The Fox v Wood component is agreed at $1,170.

109. Although the plaintiff has postponed the further operation advised by her doctors, I think it is practically certain that increasing pain will force her to undergo it, and that probably within the near future, say within the next five years.

110. The cost would be made up as follows, at present day prices:

MRI Scan $ 500
Surgeon and anaesthetist 2,500
Haemotology 1,000
8 days hospital bed cost 4,216
Loss of income
- say over 2 months @ $477/week 3,900
______
$12,116

111. Making allowance for the fact that payment will be in the future, for the chance that she may not have the operation, for the risk that the weekly loss of income rate may be too high, and other contingencies, I allow $10,000 for the cost of the future operation.

112. She will need medication in the future, certainly till she has the operation, and probably to a lesser extent thereafter. The amount is not really capable of computation. I allow $5,000 for the cost of future medication.

113. A claim is made for the cost of help in the home. I would not regard the work done by her husband as coming within the relevant principles, and there is no evidence of the length of time for which help was actually employed at $40.00 a week, nor why the need for the increase in help was called for. On the evidence I think that an allowance of $2,000 for domestic assistance is reasonable.

114. The claim for loss of future income earning capacity is based on the assumptions:

1. that the plaintiff would have been appointed manager of Hertz,
and would have continued in that job until retirement age; and,
2. that she is capable only of about 20 hours work a week, of the
type that she was performing at Short Term Acceptances.

115. I think that neither assumption can be fully justified. I have already mentioned the risks of impermanence in the job with Hertz. Nevertheless, her experience there showed that a rate of $477.00 a week or thereabouts is not an unreasonable estimate of her income earning capacity, had she not been injured.

116. Her experience at Short Term Acceptances, however, is also a fair measure of her income earning capacity, especially if, when she does undergo the operation, it significantly decreases her pain, so that she will be in much the same state as she was when working there. That is a rate of about $350.00 a week. The difference is of the order of $100.00 a week, the present value of which at 3 percent for 20 years is $78,764. The present value of $127.00 a week on the same basis is $100,031.

117. In addition to the usual contingencies, I take into account the pre-existing condition of her lumbo sacral joint. On the evidence it is most unlikely that she will have more children.I see no reason to expect that the business that she and her husband are engaged in will return her more than she was able to earn at Short Term Acceptances. I see no reason to doubt her present intention that, given the opportunity, she would have continued to work, even though not driven to do so by financial need, but that continuity of employment must be much less than certain.

118. I would award the sum of $65,000 for future loss of income earning capacity.

119. The total award is therefore made up as follows:

Pain and suffering $ 50,000
($15,000 to future)
In lieu of interest 6,000
Past loss of earnings 25,000
Interest thereon 10,000
Out-of-pocket expenses 10,829
Fox v Wood 1,170
Future operation 10,000
Future medication 5,000
Domestic assistance 2,000
Future income 65,000
_______
TOTAL $179,799

120. On a review of the whole of the evidence, that appears to me to be a reasonable global sum.

121. I direct the entry of judgment for the plaintiff in the sum of $184,799.