Mary Labathas v Woolworths Limited [2000] ACTSC 30 (30 March 2000)

Last Updated: 3 April 2000

Mary Labathas v Woolworths Limited

[2000] ACTSC 30 (30 March 2000)

CATCHWORDS

NEGLIGENCE - plaintiff falls in supermarket on oil covered area of floor - no evidence of how long oil had been there - defendant had reasonable system of inspection and cleaning but no evidence if it was followed on day of plaintiff's fall - whether res ipsa loquitor - it was not - whether plaintiff had discharged onus - she had.

NEGLIGENCE - contributory negligence - onus of proof on defendant - difficult to discharge - it was not.

DAMAGES - aggravation of degenerative back condition - post traumatic stress disorder - chronic pain syndrome - plaintiff consciously exaggerating symptoms - claim for loss of earning capacity as sex worker rejected - modest award.

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41

Lustre Hosiery Limited v York [1935] HCA 71; (1935) 54 CLR 134

Smith v Joyce [1954] HCA 15; (1954) 89 CLR 529

Kelly v Lend Lease Retail Pty Ltd [1993] ACTSC 34; (1993) 113 FLR 21

Drakos v Woolworths (SA) Ltd (1991) Aust Torts Reports ¶81-135 at 69,280

Hampton Court Limited v Crooks [1957] HCA 28; (1957) 97 CLR 367

Dulhunty v J B Young Ltd (1975) 50 ALJR 150

Brady v Girvan Pty Ltd (1986) 7 NSWLR 241

Kocis v S E Dickens Pty Ltd (t/as Coles New World Supermarket) (1996)

Aust Torts Reports ¶81-382

Canberra Wall Frames v White [1999] FCA 1810; (1999) 168 ALR 667

Australian Capital Territory v Badcock [2000] FCA 142

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

No. SC 864 of 1995

Judge: Miles CJ

Supreme Court of the ACT

Date: 30 March 2000

IN THE SUPREME COURT OF THE )

) No. SC 864 of 1995

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARY LABATHAS

Plaintiff

AND: WOOLWORTHS LIMITED

Defendant

ORDER

Judge: Miles CJ

Date: 30 March 2000

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $61,758.00.

1. The plaintiff sues the defendant for damages for negligence for personal injuries when she slipped and fell whilst shopping at the defendant's supermarket at Queanbeyan on 5 January 1993. No point was taken by the defendant that the plaintiff, suing on a cause of action arising outside the Australian Capital Territory, has not satisfied the jurisdictional and choice of law requirements: see Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41.

2. The case was strongly fought by both parties on the issues of liability and damages. There were clearly problems about the credit and reliability of the plaintiff and some of her witnesses, particularly Mr Mario Massimini, who was present near the plaintiff at the time of her injury. However, I reject the submission on behalf of the defendant that the plaintiff and Mr Massimini are totally unreliable. Much of their evidence is either unchallenged or is confirmed by other evidence or is otherwise inherently credible.

3. As to the circumstances of the injury and allied matters going to liability, I place particular importance on the evidence of Mr Andrew Thompson, the assistant manager of the supermarket. He impressed me as an honest witness and, within the limits of his observations at the time and of his memory and of the questions he was asked, reliable. I reject the submission made on behalf of the plaintiff that a report which he made to his employer about the injury is somehow determinative of liability on the basis that it is an admission of negligence. That it was admissible is clear: Lustre Hosiery Limited v York [1935] HCA 71; (1935) 54 CLR 134; Smith v Joyce [1954] HCA 15; (1954) 89 CLR 529. However, insofar as it is based on what the maker of the statement has been told, and records matters outside the knowledge of the maker, its probative weight is another matter altogether. The report certainly confirms that the plaintiff fell in the area where she said she fell. It also confirms that she and Mr Massimini gave an account of the fall to Mr Thompson, which is much along the lines of the evidence they gave. But in point of fact the report does not constitute a binding admission of failure to take reasonable steps to secure the safety of the plaintiff.

4. I proceed to state the facts which are undisputed or which I find proved without the need to refer to the evidence.

5. The plaintiff, then aged 50, went to the supermarket in her car with her daughter, then aged 26 years, and Mr Massimini. They arrived there at about 6.25 pm. It was a Tuesday evening. There were 14 checkouts in operation. There were a number of shopping aisles. Aisle No 5 had goods stacked in shelves on either side to a height above two metres. The aisle was relatively wide, about two metres or slightly less. The floor of the aisle was tiled with vinyl or other tiles of a hard surface and with a clearly marked dividing line down the middle and enough room for two trolleys to pass each other. It was well lit.

6. The daughter remained outside in the car. Mr Massimini was doing some shopping for himself. The plaintiff was shopping in order to bake a cake. Mr Massimini preceded her along the aisle, pushing or pulling a trolley. There was nobody else in the aisle. The plaintiff was looking upwards trying to locate almonds. Suddenly she felt her feet go from under her. She landed heavily on her buttocks, putting out her left hand to break her fall, thus twisting to the left either during the fall or immediately on impact with the floor. She found that she was either in or next to an area of the floor that was covered with oil.

7. Mr Massimini did not see the plaintiff fall but heard the commotion. He turned and walked back to where the plaintiff lay. She was calling out in pain. Somebody notified Mr Thompson, who came almost immediately. Somebody also went and got the daughter. There may have been another shopper who came on the scene immediately after the plaintiff's fall. Mr Thompson asked the plaintiff if she wanted an ambulance, but she declined. Someone, it is not clear who, suggested that she be taken to the Queanbeyan Hospital, a distance of a few hundred metres. She was assisted to her feet and to the car and taken to the hospital.

8. Immediately after the plaintiff's fall the area of oil on the floor extended across the aisle and for a distance of about half a metre along the aisle. It was about half way into the aisle, that is about half way from the entrance. Apart from Mr Thompson no witness estimated the depth of the oil, or, it seems, was able to do so. That suggests that it was a thin cover of oil on the floor. There was no evidence that the oil was mobile, that is to say that the area of oil was expanding or spreading. I am prepared to draw the inference not only that the oil had been accidentally spilled by someone in the aisle, but also that the spillage had occurred so long before that it had ceased to spread. Mr Massimini gave evidence that he saw trolley marks in the oil. That is a curious part of the evidence. If there were trolley marks in the oil and if the oil extended across the width of the aisle, it is difficult to see why there would not be oil also on the footwear of both the plaintiff and Mr Massimini. Indeed when he gave his evidence, I wondered whether Mr Massimini meant that there were trolley wheel marks on the floor extending from the oil itself. That would be a more likely result if the spillage had occurred relatively recently, and less likely if the oil was extremely thin or almost "dry". In the latter situation it is likely that the spillage would have occurred long before. There was no evidence of footmarks or wheelmarks extending from the oil across the floor.

9. Mr Thompson's evidence was that the oil was "relatively new" and that there were no marks through it except trolley marks going through from the front of the store towards the rear of the store. He disagreed with the suggestion put in cross-examination that it could have been there for an hour.

10. Mr Thompson did not see any oil on the plaintiff's clothing. The plaintiff made no reference to oil on her clothing or shoes or body in her evidence. Mr Massimini said that the plaintiff's clothing had oil on the side and "right through" to the socks. I reject that evidence.

11. Mr Thompson also said that there was a broken two-litre container of Sunshine oil near where the plaintiff fell. I accept that evidence, although it only emerged in cross-examination and not in chief. Photographs were taken a week later which to some extent reconstructed the scene at the time of the plaintiff's injury and must therefore be approached with caution. But in the light of Mr Thompson's evidence, it is established to my satisfaction that two-litre clear plastic containers of cooking oil were stacked on the shelves on the left of the plaintiff and approximately in the vicinity of where she fell. A stand or stack on which cans of peas were stacked in open cartons is shown on the left of the aisle. The photograph of the stack clearly shows an oil-like stain on the side of one of the cartons consistent with that carton being on the floor at the time of the plaintiff's injury and having absorbed some of the oil.

12. Mr Thompson used the term "puddle" and estimated its depth in the middle as half a centimetre. That is one part of his evidence that I do not accept. Witnesses are notoriously inaccurate in assessing small measurements.

13. Mr Thompson was not asked whether any oil appeared to have remained in the broken container. It seems unlikely that a plastic container would shatter like glass. If the container were merely cracked, it is unlikely that the whole of the contents would have been lost immediately. Again this is an issue that I am unable to resolve. I am able to infer, and do infer, that some person, prior to the plaintiff's injury, had taken a container of oil from the shelves and dropped it near the stack and near where the plaintiff fell, causing the container to break and the contents of it, or some of the contents, to spill and spread across the floor.

14. I think it more likely that the container was dropped by a customer rather than by a member of staff. On the other hand, it is curious that in a supermarket with 14 checkouts operating, early on a weekday evening, a spillage of oil such as that described would not have been encountered by someone, whether a member of staff or one or more shoppers, relatively soon after it occurred. Had it been noticed, it is difficult to understand why it would not have been reported and come to Mr Thompson's attention. Clearly it did not come to his attention until after the plaintiff's fall. I conclude that the spillage had occurred so long before the plaintiff's injury that the oil had ceased to spread. By that time the oil formed a film on the surface of the floor that was so thin that it escaped the notice of the plaintiff and of Mr Massimini, both of whom obviously walked through it, until the plaintiff fell.

15. The question of the length of time between the spillage and the plaintiff's fall immediately raises the question of what system, if any, the defendant had in place in order to guard against the foreseeable risk of injury to shoppers occurring as a result of such foreseeable spillages.

16. Mr Thompson said that the defendant held fortnightly staff meetings during which the members of staff were repeatedly reminded of the need to check the aisles in accordance with the procedures established by the defendant to keep the floor free from the results of spillages and the like. On any one shift there was a particular member of staff assigned to be responsible for the state of each of the aisles. However, that employee was not required to be at or in the vicinity of the particular aisle for the whole of the shift. According to the defendant's answers to interrogatories, the system should have resulted in inspections once every fifteen minutes. The answer is, in my view, of little probative value and neither party relied on it. He said that there would probably be 25 to 30 people in the store, but in the context and in the absence of further questioning, I took him to mean staff.

17. Falls in supermarkets must occur from time to time. The frequency with which they occur in a particular supermarket is relevant to the incidence of the risk of occurrence and of the efficiency of any system designed to avoid them. Answers to interrogatories disclosed previous falls by customers and staff in the defendant's Queanbeyan supermarket on the dates and for the reasons indicated:

25 August 1992	loose sugar
29 July 1992	broken egg
20 May 1992	wet floor (during cleaning)
22 April 1992	slippery floor
24 January 1992	wet shoes at entrance to store
3 October 1991	wet patch in stationery section
24 October 1990	wet spot on deli floor

18. There being no evidence of other falls by customers or staff, the conclusion has to be that the frequency was not great and the incidence of risk not high. Moreover, there was no evidence of previous spillages from broken containers of oil.

19. There was no contention on the part of the plaintiff that the system, as designed, was not adequate, except to the extent that, during cross-examination, the fortnightly meetings were referred to with some derision and the suggestion made that no real attempt was made to impress upon the staff the seriousness of their responsibility. Mr Thompson rejected that suggestion and so do I. There is no reason not to accept Mr Thompson's evidence on its face value as to the frequency and content of the staff meetings.

20. Reliance was placed for the plaintiff on Mr Thompson's failure to complete Part B of the report form which he agreed he could have or "should have", completed for the defendant and in which he could or should have expressed a view about fault and ways of avoiding similar falls. In my view, the failure, if that is what it constitutes, is of such little significance that it may be ignored.

21. The real question is whether the system, as designed, was implemented on the day of the plaintiff's injury and, more precisely, by the staff member on duty, presumably pursuant to a roster, at a time before 6.25 pm when it would be reasonable to expect that an inspection of the aisles, and particularly aisle No 5, would have taken place. Mr Thompson gave evidence of a somewhat vague nature in relation to the inquiries that he made of the staff after the plaintiff's injury. He was not asked by either counsel about the extent of his inquiries, the identity of the persons from whom he made them or the details of the responses he obtained. He was not even asked about the identity of the staff member to whom responsibility for aisle No 5 had been allocated. The defendant's rosters and other relevant staff records were neither produced nor called for on subpoena and their absence was not explained. Interrogatories administered on behalf of the plaintiff to the defendant did not address that vital subject matter.

22. Naturally, one would not expect Mr Thompson to have an independent recollection of these matters seven years after the event. He made statements nearer to the time which were not in evidence and which he read recently. However, they did not, as he said, refresh his recollection. He did not use them to refresh his recollection in the witness box. I did not consider that the plaintiff was entitled to call on them for the purpose of cross-examination. However, I consider that it is of some significance that there was no explanation on behalf of the defendant about the absence of records as to who worked the shift and what duties were allocated.

23. Nor would one expect Mr Thompson to have acted like a personal injuries lawyer for the purpose of seeking out the individual staff member with responsibility for monitoring aisle No 5 and obtaining from him or her a statement about the latest inspection before 6.25 pm and the results of that inspection. Nevertheless, evidence of that kind, if it had been favourable to the defendant, would have provided a very high barrier for the plaintiff to have overcome. The important question in the present case is whether the absence of such evidence, and the lack of an explanation for that absence, assists the plaintiff to discharge the onus of establishing that her injuries resulted from a failure on the part of the defendant to take reasonable care for her safety.

24. Despite appearances to the contrary, the law is still that such an onus remains on a plaintiff in supermarket spillage cases. As Higgins J put it in Kelly v Lend Lease Retail Pty Ltd [1993] ACTSC 34; (1993) 113 FLR 21 the law in this country has not yet embraced a res ipsa loquitur approach to such cases. Whether it does elsewhere I do not know. There is considerable strength in the observation of Matheson J, dissenting, in Drakos v Woolworths (SA) Ltd (1991) Aust Torts Reports ¶81-135 at 69,280, that, when negligence is found on the basis that no one is called to give evidence as to the state of the floor just before the accident, and there is an utter lack of explanation on the part of the defendant as to how the accident happened, it really does look as though the evidentiary onus has passed to the defendant, as it has been said to pass in a case of res ipsa loquitur.

25. There is no point in once again reciting the facts of the various cases, the decisions made thereon as to whether or not the facts proved negligence and to quote the various statements of principle at appeal level and at first instance. It is enough to record that whilst a number of High Court authorities, notably Hampton Court Limited v Crooks [1957] HCA 28; (1957) 97 CLR 367, and Dulhunty v J B Young Ltd (1975) 50 ALJR 150, were once thought to be based on a principle that ordinarily the plaintiff will fail in the absence of evidence showing how long the spillage had been lying unattended on the defendant's floor, that view no longer holds sway: see Brady v Girvan Pty Ltd (1986) 7 NSWLR 241. Where the defendant has instituted a reasonable system for periodic inspection for spillage and cleaning, as in the present case, the questions remain whether it was in operation at the time or whether there was proper maintenance of the system instituted. If the system, however reasonable, was not in operation or not properly maintained, then the inference may (not must) be drawn that the lack of operation or maintenance caused the plaintiff's injuries: for example, see Kocis v S E Dickens Pty Ltd (t/as Coles New World Supermarket) (1996) Aust Torts Reports ¶81-382. Whilst the legal onus remains on the plaintiff, the absence of evidence about the operation or maintenance of the system called by the defendant, may enable the inference to be more easily drawn.

26. Not without considerable hesitation, I conclude that, in the absence of some positive evidence called by the defendant to the contrary, it was more likely than not that the defendant's system of regular inspection was not in operation, or not properly maintained, at the time of the plaintiff's injury. The oil spillage probably occurred more than "only moments" before its consequences in relation to the state of the floor, caused the plaintiff to fall. Mr Massimini, without noticing it, managed to negotiate the oil without falling. That is consistent with other shoppers doing the same over a period long enough to allow the film of oil to reach the stage where it had stopped spreading. It is likely that a cursory examination from one end of the aisle or the other on the part of the employee responsible for inspecting aisle No 5 at a time close to when the plaintiff fell, was not sufficient for the result of the spillage to be observed. It follows, in my view, that the plaintiff has discharged the onus.

27. On the counter-allegation of contributory negligence, the onus is on the defendant. In practical terms it is an onus which is difficult to discharge. When it comes to taking reasonable care for their own safety, rather than the safety of others, people are not, in the view of the courts, usually guilty of more than momentary inadvertence, which it has been repeatedly said cannot amount to a failure to take reasonable care for one's safety. Sometimes, for instance, where the inadvertence is against a background of familiarity with an obvious danger, an inference of contributory negligence may be compelled: see Canberra Wall Frames v White [1999] FCA 1810; (1999) 168 ALR 667. Contrast, however, Australian Capital Territory v Badcock [2000] FCA 142 in which a full Court of the Federal Court held that, even where a person is aware of the danger, a failure to take any care to avoid it is not necessarily unreasonable. Einfeld J, with whom the other members of the Court agreed, said that pedestrians in a public car park are not required to watch every step they take and are not meant to do an "Irish jig" around all known dangerous hazards in order to avoid them. On that approach, a shopper, unlike a shopkeeper, is entitled to assume that the sorts of dangers that the shopkeeper is required to guard against, do not exist at all. The plaintiff was entitled to look for the almonds on the top shelf and proceed down the aisle without watching her step and momentary inadvertence does not even come into it. The defendant cannot discharge the onus.

28. I turn to the question of damages.

29. At the time of her injury the plaintiff was in receipt of social security payments or a pension. It is not clear on what basis. She had received social security payments ever since her husband left her with the two children in 1979. She worked in the interim, but it is impossible to know how frequently. She knew that if she earned over a certain amount it would affect her pension. She was aware of amnesties declared by the Department of Social Security or its predecessor from time to time. She said that she went to the Department twice during amnesties and told them that she had a job and how much she was earning, but they told her that it did not matter. She had been working for a Mr Poulos in a takeaway business, probably during the year before her accident, but again it is not clear how long she worked and over what period.

30. The particulars supplied to the defendant's solicitors, in response to a request to provide the names and addresses of any person who employed the plaintiff in the two years prior to the date of the accident, state "Department of Social Security. We are seeking further instructions in relation to this issue". This answer was misleading and no explanation for it was offered at the trial.

31. According to the further amended particulars filed in court on 6 March 2000, it is alleged that the plaintiff worked as a shop assistant, usually from 10 am to 1 pm daily, making sandwiches, cleaning and some cooking, and had done that work "for many years with varying hours".

32. Mr Poulos was not called to give evidence and no explanation for his absence was given.

33. I conclude that the plaintiff worked occasionally over the years as an assistant in takeaway food outlets and the like, and that her actual earnings from such employment were probably very low.

34. The plaintiff's evidence was that she had immediate symptoms after the injury in the nature of pain in the lower and upper back and right arm and headaches. According to the Queanbeyan Hospital records she complained of pain in the lower and mid back, was given medication and was discharged home. She saw her general practitioner, Dr Chin of the Florey Medical Centre, three days later and conservative treatment was commenced. Three weeks later, with no improvement, x-rays were taken which revealed pre-existing degenerative change at the L5/S1 level. Physiotherapy was undertaken with no improvement. Hydrotherapy followed, but only for four sessions between 30 April and 13 May 1993. The plaintiff was discharged because she said it increased the pain. CT scans were taken, but the results were negative. The plaintiff started to complain of migraine type headaches, but otherwise continued as before. In a report dated 18 January 1993 Dr Chin expressed the view that there had been an aggravation of pre-existing and symptomless arthritic changes in the spine, but there was already a very strong psychological element as well. By early 1994, a chronic pain condition was suggested. Dr Newcombe, a neurosurgeon, saw the plaintiff in August 1995. By that time she was complaining of new and almost bizarre symptoms include radiating headaches with associated visual disturbance, loss of sensation in the left thumb and right leg. Dr Newcombe agreed with Dr Chin's opinion. Dr Newcombe did not see the plaintiff again until 23 June 1999 by which time her pain had become "progressively worse".

35. There were other problems of a non-neurological nature, particularly depression and, significantly, urinary incontinence. At the request of her solicitors, the plaintiff was assessed by Mr Tom Sutton, a psychologist, in late 1995. In his report of 6 November 1995, she told Mr Sutton that at the time of the injury she thought that she was "finished", "dead", and that the pain was "unbearable". However, Mr Sutton, who addressed his mind to the question, concluded that there was no evidence to support a finding of post-traumatic stress syndrome.

36. Mr Sutton's report concludes:

"She currently has a relationship (since 1991) which she did not detail. I gather her friend helps her with many of the chores, shopping, gardening. She reminded me (as I had not asked) that she was now less sexually active."

37. A major part of the claim is based on the plaintiff's evidence that sexual activities have been denied to her because of the pain in her back and that without them she feels "dead". It was obvious when she gave evidence in court that she is very emotional about this aspect of the case. However the supporting evidence is by no means clear. She gave Dr John Saboisky, a consultant psychiatrist (whose report was tendered on behalf of the defendant at the end of the case), to understand that she was in a sexual relationship with Mr Massimini at the time of her injury, but neither he nor she made any mention of it in their evidence. On her own evidence her attempts at sexual intercourse after the fall were very few. She has not undertaken counselling or advice as to how she might cope better with this problem. There was no evidence of a gynaecological nature. Significantly, she suffers now from urinary incontinence unconnected with her injury, which she said on one occasion manifested itself during or immediately after one of her attempts at sexual intercourse.

38. Following her dissatisfaction with the treatment, or perhaps the attitude, of Dr Chin, the plaintiff began consulting, as general practitioner, Dr T I Haider. By that time, early 1994, Dr Haider was about to leave Canberra to take up practice in Batlow. However, he agreed to accept the plaintiff as his patient so long as she understood that he could see her only on his regular monthly visits to Canberra. On that basis he has continued to see her regularly. He contrasted her current presentation from that which he observed in 1994 when she was "a very slim, well-dressed, very good-looking woman". By 1997, possibly before, he concluded that she was suffering from depression and post-traumatic stress disorder. Dr Haider does not belong to the school that believes that perception of a life-threatening event is necessary as a stressor for a diagnosis of post-traumatic stress disorder. He noted the extreme stress caused by loss of "meaningful sexual activity".

39. In his recent report of 8 October 1999, Dr Haider listed the plaintiff's complaints and symptoms which were much along the lines of those she complained of in evidence, which are set out with prolixity in the particulars filed. Findings on examination were consistent with pain on movement of the neck and back, left hip and left shoulder. He suggested reference to a pain management clinic and psychiatric treatment as well as close monitoring of her medication in order to avoid side effects. The suggestion of reference to a pain management clinic had been made as early as January 1994, but there is no evidence that the plaintiff ever acted upon any such recommendation.

40. Dr Scott, an occupational physician, examined the plaintiff on 25 January 2000 at the request of her solicitors. He noticed for the first time in an x-ray report an indication of a possible 5 mm diameter of calcification near the bicipital tendon in the bicipital groove which appears to be confirmed by ultrasound. He thought that it provides a prima facie explanation of pain in the left shoulder and related the condition to the fall in 1993. The radiological evidence of change in the spine appears to be minimal. Dr Scott's opinion was of course based on her complaints.

41. Dr Scott stated in general terms that he agreed with the reports of Dr Haider but he made no specific reference to post-traumatic stress disorder. In his evidence to the Court Dr Scott was not asked about post-traumatic stress disorder.

42. Dr Saboisky's report followed his assessment of the plaintiff made on 5 February 1997. She told Dr Saboisky that initially the fall "felt like a bomb had gone off", that she "feared for a minute that she would die" and that it was a "very scary experience". She said that she did her own cooking and cleaning but that a male friend, Mario, did the vacuuming and gardening. At that stage she was drinking heavily and spending a lot of time at poker machines. She told Dr Saboisky that she had been employed in the Mitchell takeaway business run by John Poulos for several years working 20 to 25 hours per week until the position was terminated in 1989 due to general economic circumstances. She added that Mr Poulos had offered the job back to her one week after her accident.

43. Varying tests administered by Dr Saboisky came up with the results that suggested conscious exaggeration and hyperchrondiasis.

44. Dr Saboisky concluded that the plaintiff was not suffering from clinical depression but rather from what he described as an "adjustment reaction with depressed mood complicated very much by alcohol abuse". He thought that her problems stemmed from events in her history, particularly her unhappy arranged marriage and heavy drinking.

45. Dr Saboisky's report makes no mention of post-traumatic stress disorder, and although the plaintiff mentioned the cessation of sexual relations with Mario, that aspect of her life clearly did not loom large when she saw Dr Saboisky four years after her injury.

46. The diagnostic criteria of the American Psychiatric Association for post-traumatic stress disorder were in evidence. It is clear that, according to those criteria, the plaintiff's condition is not to be brought into a diagnosis of post-traumatic stress disorder, or even of adjustment order, which is also mentioned in the criteria. The chief reason is that the plaintiff did not undergo an event which involved "actual or threatened death or serious injury" when she fell over at the supermarket. Furthermore, she hardly comes even arguably within the various other criteria which are set out. The evidence which she gave in court that she thought at the time of her injury she was about to die and the like (and similar statements to some of the doctors) is, in the light of her general credibility, unconvincing.

47. I am of the view that the plaintiff has consciously exaggerated her symptoms both in the evidence and to the doctors. The result is that she has now become locked into a "chronic pain syndrome" due in part to her own conscious and continuing exaggeration. It is likely, I think, that the injury played a role in the developments leading up to the present situation but it was only one factor and its significance diminished over time. Looking as closely as one can to the physical nature and consequences of the injury, I think Dr Newcombe's view should be accepted, namely that at August 1995 there were continuing symptoms from an aggravation of facet joint osteoarthrosis at L5-S1 and that there had been, but was not necessarily continuing, muscular ligamentous damage to the neck and lumbar spine, the condition being complicated by emotional and psychological factors. I am not prepared to accept that the calcification in the left shoulder, which was not noted until November 1999 by Dr Scott, indicates anything that is likely to be a result of the 1993 injury. I note that by June 1999 even Dr Haider's view was that the pain might be related to aggravation as well as other factors and that the depressive illness might be secondary to the pain or have other causes.

48. I conclude that the plaintiff has discharged the onus of showing the causal link between the injury and her subsequent physical and psychological symptoms to the middle of 1997, and that it should be inferred that the situation continued until the beginning of 1998. However, I am not convinced that the plaintiff has shown that her present condition is so linked. It appears to me likely that her present condition is due to a combination of circumstances for which the defendant is not responsible and which have overwhelmed any contribution the 1993 injury might have once made. In my view, applying a "common sense" approach to causation, the consequences of the defendant's wrong doing ceased to be operative by the beginning of 1998, that is, about five years after the injury.

49. I am not satisfied that the plaintiff had been in regular paid employment for some years prior to the injury, except to the extent that she engaged in sporadic part-time work in a takeaway food outlet. She was capable of such work but in fact, prior to injury, she was limited in the extent to which her capacity was income-generating. She imposed that limit on herself by choosing to receive social security payments which would have been reduced or denied to her if she had exercised her full income-earning capacity. In that situation, in my view, the value of the loss of earning capacity must be assessed as substantially lower than in the case of persons who are likely to exercise their income-earning capacity to a greater extent.

50. Damages for loss of earning capacity also have to take into account that the plaintiff participates in the running of the brothel business, essentially as a manager/receptionist. She does not, for whatever reason, get paid for it, but it indicates that she is capable of activities which are normally regarded as income-generating. There is no reason to conclude that, at least by about early 1998, she had not been capable of much of that sort of activity.

51. Although I accept that the plaintiff's physical condition was likely to have affected her capacity to engage in sexual intercourse, and that in fact, and for that reason, sexual intercourse became impossible for her as an immediate consequence of the injury, there have been other factors which have been operating in this regard in the meantime. It appears to me likely that by the end of 1997 her incapacity for sexual intercourse was not a result of the defendant's wrong doing. That finding means that any desire on the part of the plaintiff to enter the sex industry as a sex worker does not resound in damages for loss of earning capacity, or indeed at all. That desire was not manifested until after her son became the licensee of the brothel, which carries on business through a company of which the plaintiff is the only director and secretary.

52. It follows further that, despite the sympathy that is naturally attracted to the plaintiff in her emotional and psychological condition, damages must be relatively moderate. I award $25,000 general damages, all of which is assigned to the past. Interest thereon at 2 percent is awarded, namely $2,500.

53. For past loss of earning capacity I award $2,500 for the first six months, based on a loss of $100 per week, and $12,500 for the ensuing four and a half years, based on $50 per week, making a total of $15,000. Interest thereon at 5 percent is awarded, namely $3,750.

54. Out-of-pocket expenses are difficult to assess since the plaintiff has been on a variety of medications only some of which relate to her pain and depression. I do not understand how, as a social security recipient, she is liable for expenses not associated with her injury. The Health Commission has paid some expenses which, I understand, the defendant has not challenged. They amount to $1,548. Only the amount charged by Sutton and Williams Psychological Services is in dispute, on the basis that it is not a charge for treatment but a charge for providing advice for the purposes of litigation (a "medico-legal" cost). The maker of the report, Mr Sutton, was not called. The report dated 6 November 1995 is addressed to the plaintiff's solicitors and commences with "Thanks for referring the plaintiff" for pain assessment. It refers to Dr Newcombe's first report (clearly a medico-legal report). It sets out the result of various psychological tests. It makes recommendations for treatment and offers advice for the purposes of the litigation and invites further questions from the solicitors. There is no evidence that it was acted on by the plaintiff for the purpose of treatment or passed on to or acted on by any treating doctor. It is, in my view, an expense of the litigation and otherwise not attributable to the injury.

55. A claim was made under the principle of Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 for the cost of services rendered by Mr Massimini. In fact the defendant paid Mr Massimini $360 per month for some 11 months following the injury ($3,960 in all) for gardening, shopping and household duties. Mr Massimini said in evidence that when he ceased to get paid he stopped doing the cleaning. Insofar as he may have continued to assist in shopping, he did not do so as a gratuitous carer but simply as a friend. However, I accept that he continued to do some gardening and the circumstances are such that the plaintiff's damages should be augmented to include the commercial cost of Mr Massimini's assistance until the end of 1997. I assess that cost at $200 per month, making it a total of $13,960. It was submitted on behalf of the defendant that the $3,960 for the first 11 months should not be included in the damages since the defendant has ensured that the plaintiff has avoided the loss. The logic of the submission is impeccable but, for reasons which I do not understand, the practice is to the contrary. The $3,960 will be included in the award of damages, but on analogy with worker's compensation, the defendant should be regarded as already having satisfied the judgment to that extent.

56. In summary the damages to be awarded are as follows:

Pain and suffering and loss of enjoyment of life	$25,000
Interest thereon	$ 2,500
Past loss of earning capacity	$15,000
Interest thereon	$ 3,750
Out-of-pocket expenses	$ 1,548
Griffiths v Kerkemeyer Total:	$13,960 $61,758

57. Having regard to the circumstances of the case and the level of awards of damages in this Court, I think that this appears to be an appropriate global award and the plaintiff is to have judgment for that amount. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 30 March 2000

Counsel for the plaintiff: F J Purnell SC

Solicitor for the plaintiff: Snedden Hall & Gallop

Counsel for the defendant: S Pilkinton

Solicitor for the defendant: Blake Dawson Waldron

Date of hearing: 6, 7 and 8 March 2000

Date of judgment: 30 March 2000