Dean v More Than A Morsel Pty Ltd [2004] ACTSC 105 (6 October 2004)

Last Updated: 29 October 2004

LISA MAREE DEAN v MORE THAN A MORSEL PTY LIMITED [2004] ACTSC 105 (6 October 2004)

CATCHWORDS

EMPLOYER'S LIABILITY - breach of contractual duty to take reasonable care for safety of employee - accident in Western Australia - proper law of contract was law of New South Wales - damages for breach of contract governed by Workers Compensation Act 1987 (NSW)

Workers Compensation Act 1987 (NSW), s 151G(2) considered

No. SC 420 of 1999

Judge: Whitlam J

Supreme Court of the ACT

Date: 6 October 2004

IN THE SUPREME COURT OF THE )

) No. SC 420 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LISA MAREE DEAN

Plaintiff

AND: MORE THAN A MORSEL PTY LIMITED

Defendant

ORDER

Judge: Whitlam J

Date: 6 October 2004

Place: Sydney

THE COURT ORDERS THAT:

1. The parties are to bring in short minutes of proposed orders to give effect to these reasons for judgment.

1. This is an employment personal injury claim arising out of an incident in Perth, Western Australia on 17 February 1998.

2. During February 1998 the defendant provided the catering services for a concert tour of Australia by the rock group U2. The plaintiff was employed by the defendant as head chef for that tour. At the time she was 29 years old with extensive experience as a chef on concert tours. The plaintiff had also worked for the defendant previously and knew its managing director, Brian Lizotte, well.

3. The first concert venue was the Burswood Dome in Perth. Mr Lizotte had prepared a plan of his requirements for the site manager, and when he arrived at the venue, the catering marquee was already set up in a "compound" in the backstage car park. A semitrailer, incorporating a commercial kitchen and coolroom, was then delivered to the site. It was positioned under Mr Lizotte's supervision next to the catering marquee. A sketch of the layout of the trailer is in evidence. It depicts a coolroom at the rear of the trailer and three doors, one at the opposite end and one on each side. Steps were fixed to the trailer at the end door and at one of the side doors, but the trailer was positioned so that the side door without steps opened directly on the marquee. A wire cable attached to the marquee extended across the front of this door. (This attachment was variously described by witnesses as a beam, wire, strut, rope, guy or stay.)

4. On 16 February 1998 the plaintiff commenced work at the Burswood Dome site at six or seven o'clock in the morning. She was responsible for planning and preparing breakfast, morning tea, lunch, afternoon tea, dinner and supper for about 180 people. The plaintiff was assisted by five or six other cooks and two kitchenhands. Mr Lizotte was on site for most of the time, as he had been the previous day. Staff moved back and forth throughout the day between the marquee and the trailer. They used both the end door and the marquee side door. In order to exit or enter this side door a person had to step on to a plastic crate, which was upturned on the ground in front of the door, and also to step over the wire cable. The crate was unstable and wobbled. Staff discussed amongst themselves how annoying and difficult it was to use this door. The plaintiff mentioned this problem to Mr Lizotte. (In his evidence Mr Lizotte said that it had been intended originally to use the marquee side door only for ventilation and deliveries and that it could not be closed.)

5. On the afternoon of 16 February 1998 Mr Lizotte told some staff that he would prefer them not to use the marquee side door. He was not sure that the plaintiff was present. The plaintiff could not recall such an instruction. Three other staff gave evidence. Paul Warby was at work until about 10.00 pm and was not amongst any staff to whom Mr Lizotte gave any such direction. Matt Treacy did recall being told by Mr Lizotte not to use the side door in order to move in or out of the trailer. He could not recall whether the plaintiff was present at the time. However, Cameron Gray said that he "vividly" recalled the plaintiff being present along with Mr Treacy. In any event, after he spoke to the staff, Mr Lizotte and others continued to use the marquee side door as a passageway. Mr Lizotte left the site later that night in time to catch a flight to Sydney. The plaintiff finished cooking and cleaning duties at about 10.30 pm. She went and sat in the marquee in order to attend to some paper work. Some considerable time later, in the early hours of 17 February 1998, some people came into the marquee and requested a late night snack. The plaintiff knew Mr Treacy was still around so she went into the kitchen by the side door to find him and "see that [he] was okay with doing that". The plaintiff then picked up some more paper work in the trailer and stepped out of the side door onto the crate. It wobbled. She lost her balance and, instead of falling towards the wire cable, fell sideways to the ground, taking the impact on her right hand which she had extended in order to cushion the fall. Mr Treacy heard the accident. The plaintiff immediately felt pain in her right wrist. She wrapped her hand in ice and, after finishing her paper work, went to bed in "immense pain".

6. The plaintiff's evidence of events following her accident was confusing. She was a poor historian. However, precise dates appear in the medical reports in evidence, and they provide a useful framework in which to place her evidence.

7. The plaintiff commenced work at about seven o'clock on the morning of 17 February 1998. She was still in great pain. Her wrist was bandaged. In the afternoon the plaintiff attended the Emergency Department of the St John of God Hospital in Perth. Her right wrist was x-rayed. No abnormality was detected. A provisional diagnosis of a fractured scaphoid bone was made. The plaintiff was fitted with a polypropylene cast, given a sling, advised to have a repeat x-ray in ten days, and prescribed analgesic medication.

8. The plaintiff continued on the tour, flying to Melbourne on 19 February 1998. Her arm was extremely sore. She did very little cooking because of the cast and the pain. At the end of the tour in Sydney, on 27 February 1998, Mr Lizotte handed the plaintiff a letter warning that alcohol was affecting her job performance. Her alcohol consumption had increased since the accident, but the plaintiff took offence at the tone of the letter and quit her employment with the defendant.

9. At the time the plaintiff was living in the Sydney suburb of Balmain where she was sharing a house leased by a girlfriend. On 4 March 1998 she attended the Casualty Department at Balmain Hospital. The plaster was removed. An x-ray was performed. It did not show any fracture of the scaphoid bone.

10. Her wrist and hand continued to cause her great pain. The plaintiff consulted Dr Jonathon Mak, a Balmain GP, on 10 March 1998. She complained of numbness in her right thumb. Dr Mak referred her to an orthopaedic surgeon, Dr Robert Elliott, who arranged a bone scan of the plaintiff's hands and wrists. The scan suggested a fracture in the right radius. On 23 March 1998 her right wrist was immobilised in a plaster, which Dr Elliott removed on 8 April 1998. The plaintiff saw Dr Mak again on 24 April 1998, complaining of difficulty with lifting caused by numbness in her right thumb. She decided to return to Canberra, and Dr Mak referred her to Dr Chris Roberts, an orthopaedic surgeon in Canberra.

11. Dr Roberts saw the plaintiff for the first time on 7 May 1998. On examination he detected "a tiny palpable hard lump on the dorsoradial aspect of the wrist in the floor of the first dorsal compartment". Dr Roberts referred the plaintiff to a physiotherapist, David Bloom, who treated her with massage, ultrasound and exercise. Her pain and discomfort increased. She saw Dr Roberts again on 28 May 1998. He arranged a nerve conduction study and an x-ray. The lump was still there and tender. Dr Roberts recommended an operation on her wrist which he performed on 15 June 1998 and reported as follows:

"... Under general anaesthetic a dorsal V shaped incision was made. The superficial branches of the radial nerve were identified and carefully retracted. The first dorsal compartment was exposed. There was a ganglion arising from the first dorsal compartment. A window was removed from the sheath of the abductor pollicis longus and extensor pollicis brevis tendon which allowed the first dorsal compartment to be freed. The ganglion and the wall of the sheath were removed and sent for histology. A wrist arthroscopy was performed and a good view was obtained of the wrist joint. The scaphoid articular cartilage was normal. The scapholunate ligament had some mild bulging with some prominence and laxity. This was debrided with the shaver and the prominent bulge was removed from the scapholunate ligament down to the ligament tissue itself. There was no gelatinous tissue within the ligament and the ligament structurally felt to be reasonably normal. The lunate fossa and scaphoid fossa were both healthy. The triangular fibrocartilage was inspected and probed and there was normal triangular fibrocartilage. There was a small dorsal synovial fold and this was debrided with the shaver. The mid carpal joint was inspected and was normal."

(Histology showed a simple ganglion.) The procedure was supposed to involve only a day admission, but the plaintiff had to be admitted overnight to another hospital before being discharged.

12. On 26 June 1998 Dr Roberts removed the sutures. (The plaintiff has been left with a scar, of which she is quite conscious.) As the plaintiff was moving to Sydney, Dr Roberts referred her for physiotherapy to the Sydney Hand Therapy and Rehabilitation Centre. She attended there for regular treatment by Cathy Merry, a hand therapist, from 1 July 1998 to 6 August 1999.

13. The plaintiff was reviewed by Dr Roberts on 23 July 1998 (when she reported that she had fallen on her right wrist two weeks beforehand), 7 September 1998 (when Dr Roberts recommended that she return to light duties), 11 December 1998 (when she reported pain in her wrist "several months ago" after falling over "pulling on her boots" and after avoiding a fall in a bus by holding on to a pole), and on 27 May 1999 (when she reported "using a TENS machine some 2-3 times per day"). According to Dr Mak, the plaintiff also saw him on a few occasions in early 1999 "because of persistent discomfort in her thumb and wrist". The plaintiff also told Dr Roberts at review on 27 May 1999 that she had recently had some pain around her right shoulder and upper cervical spine. Dr Roberts expressed the opinion to the plaintiff's then solicitors that the shoulder symptoms would seem to be "due to altered posture". She was referred to another Sydney physiotherapist, Moira Mannion, for treatment of her cervical spine and shoulder pain. The plaintiff saw Ms Mannion for the first time on 30 June 1999 and subsequently on seven occasions in July 1999. Afterwards Ms Mannion reported to the solicitors:

"Her secondary cervical and shoulder problems are most definitely a secondary result of the wrist problem. As the wrist pain settles and she regains the strength, I would expect that the neck symptoms would settle too."

Throughout her time in Sydney she consumed prescription analgesics. The physiotherapy did not relieve her pain, and she decided to return to Canberra.

14. The plaintiff first consulted her current GP, Dr Liz Fraser, in July or August 1999 at the Warramanga Medical Centre. She was referred to Margaret O'Donovan, physiotherapist, for treatment of right wrist and shoulder blade pain. The plaintiff saw Ms O'Donovan on nine occasions during August and September 1999. Ms O'Donovan reported that all physiotherapy efforts to improve "severe resting pain in both her wrist and shoulder blade on the right side ... have not been helpful." In September 1999 the plaintiff commenced hydrotherapy treatment for neck and shoulder symptoms with Diana Howell. This therapy did not help her in any "large degree".

15. Dr Fraser also referred the plaintiff to Dr Feng Yuan, a practitioner of Chinese medicine, and to Dr John Corry, a rehabilitation physician. Dr Yuan saw her for the first time on 5 October 1999. He treated her right arm and shoulder pain with "acupuncture, stretching techniques and active mobilisation". Dr Corry saw her on 10 October 1999. He arranged x-rays of her right wrist (which were taken on 19 October 1999 and appeared normal) and started her on a remedial exercise program. The exercises relieved the discomfort. Dr Corry also prescribed a neoprene support brace for her wrist, which permitted her to carry out domestic tasks more easily.

16. On 22 November 1999 the plaintiff was assessed for the defendant by Vincent De Giovanni, a vocational psychologist. At the beginning of 2000 she commenced an interior design course at the Canberra Institute of Technology, but withdrew after six weeks. The plaintiff said she had difficulty with her posture when drafting and with her right hand when holding instruments. Dr Fraser referred the plaintiff to Dr Bruce Hamilton, a sports physician, for investigation of her shoulder pain. Dr Hamilton saw her on 22 February 2000 and recommended corticosteroid injections. The plaintiff apparently declined this procedure.

17. The plaintiff lived in Canberra in a self-contained flat under her parents' house in Fisher. About six months after she moved back to Canberra, she did some work for a few hours at a time in a florist shop. From May to December 2000 the plaintiff worked as an assistant in the After School Care program at a primary school in Gowrie, where her sister was the director. This job involved supervising children in craft activities, games and sports. During this period she moved out of her parents' house to live in "a relationship" with Trevor Chivers in the suburb of Oxley. When the job at the school finished, she found work "spasmodically" during 2001 as an assistant in a plant nursery at Bungendore. In April 2001 the plaintiff's relationship with Mr Chivers ended and she moved back to her parents' house.

18. About this time the plaintiff experienced a number of other reverses. She broke her right humerus when she fell walking down steps at her parents' house. This fact emerged in cross-examination, when the plaintiff said that the mishap occurred in June 2000. Closer to the time, however, she told Dr John L Cummine and Mr De Giovanni that the incident occurred on 16 May 2001. She also told Mr De Giovanni that the injury was treated by Dr Roberts. The plaintiff was also involved in a motor vehicle accident which caused her car to be written off. She recorded an extremely high blood alcohol content, resulting in a substantial fine and the loss of her driver's licence for 12 months.

19. This action was commenced on 8 June 1999. Both parties qualified several experts from whom reports have been received in evidence. Dr Cummine, to whom I have referred, is an orthopaedic surgeon. He examined the plaintiff for the defendant's solicitors on 23 November 1999, 12 December 2000 and 1 November 2001. Dr Cummine refrained initially from expressing a definitive evaluation of the plaintiff's condition until he had seen all the relevant x-rays and MRIs. His definitive and final view was that the plaintiff sustained soft tissue injuries only in the accident on 17 February 1998. Dr Cummine considered her fit to return to her pre-injury employment or any other form of employment for which she is educationally qualified. Her own solicitors also had the plaintiff examined by an orthopaedic surgeon, Dr Peter J Phillips, on 11 February 2000 and 24 March 2002. Dr Phillips thought that there was probably some damage to the intrinsic ligaments of the wrist, but considered that a further arthroscopy by a hand surgeon would be required to confirm his diagnosis.

20. Psychiatric opinions were obtained from Dr Robert D Lewin by the defendant's solicitors and from Dr Graham A Edwards by the plaintiff's solicitors. Dr Lewin examined the plaintiff on 11 December 2000. The plaintiff was at that time living in a defacto relationship with Mr Chivers. The plaintiff described to Dr Lewin a pattern of heavy, mixed substance abuse during her late teenage years and her early twenties. She attended the examination smelling of alcohol. The plaintiff told Dr Lewin that she saw a psychologist on a single occasion at the request of Dr Corry and that she had never seen a psychiatrist or psychologist for ongoing treatment. Dr Lewin noted that she was taking anti-inflammatory medication and anti-depressant medication which was initially prescribed for its sedative effect and as an adjunct in pain management. The plaintiff said that she had been involved in several serious relationships. In addition to her symptoms of physical pain, she reported lassitude, feelings of hopelessness and reduced libido. Dr Lewin found no evidence of any morbid depressive symptoms. He concluded:

"Ms Deans' current problems appear to have a number of causal themes. She describes a recent increase in the intensity of her emotional distress associated with her conflict with the insurance company. This occurs against a background of a more long-term, low-grade reaction to pain, loss of function and failure to move forward in her life. There is a significant degree of conflict in her personal life at the present time. Ms Dean reports that her new relationship with Trevor is compromised by the angry reaction of his former wife, Sally. This appears to derive from Sally's perception of betrayal of trust by her former girl friend. Ms Dean perceives that there is a major threat to her security and wellbeing from this quarter.

Ms Dean also describes a pattern of abuse of alcohol over the last two to three years. Ms Dean appeared to play down the significance of this problem and I suspect that it is a much more severe problem than she described to me. This occurs against a background of a significant history of poly-substance abuse at an earlier stage in her life.

There are several themes which are difficult to tease apart. I think that the substantial weight of causation falls to the recent personal conflicts although it is possible that Ms Dean has experienced a chronic, low-grade degree of disturbance related to her perception of disability and loss of function.

I considered that it is likely that Ms Dean underestimates the seriousness of her drinking problem. I observed that she played this down in examination, that she appeared to underestimate the impact of this problem upon her life. She dismissed, entirely, her former employer's concerns about her drinking. She described this to me as `an insult'. I think that it is quite significant indeed that Ms Dean ceased work the following day.

At this stage, Ms Dean is very angry. She also has a low-grade, depressive reaction. This condition on its own would not prevent her from working. Her fitness for work depends, essentially, upon the evaluation of her orthopaedic problem. I think it likely that if she were working on a full-time basis, her mood state would improve considerably, particularly, if her personal problems were brought into remission.

At this stage, Ms Dean does not require any ongoing psychiatric treatment. It would be appropriate for her low-grade depressive symptoms to be managed by the occupational physician. A continued prescription for antidepressant medication would be entirely appropriate at this stage."

21. Dr Edwards saw the plaintiff on 13 August 2002. This was, of course, after her break-up with Mr Chivers and the other "stressors" (as Dr Edwards described them). He was told that the plaintiff had seen a psychologist, Tammy Jacobsen, on three occasions but that she did not find the "talking therapy" of much benefit. The plaintiff also told Dr Edwards that she had a good relationship with her GP, Dr Fraser, who had arranged for her to see a psychiatrist "next week". Dr Edwards expressed his opinion as follows:

"... In essence she has a chronic pain disorder and related to this is an adjustment disorder with mixed psychological features, particularly with prominent depressive symptomatology, other factors in relation to this appear to be her personal and social stresses, particularly her recent relationship break up and her difficulties in the home situation and her problems in not being able to return to effective work situation. There may also be a significant underlying alcohol problem as suggest by Dr Lewin and also by her recent high DUI reading. It was difficult to obtain a clear history of her alcohol use. Nevertheless her pain disorder is quite significant but the other issues of depression and alcohol use and reliance on analgesics need specific psychiatric attention."

22. Dr Fraser was the only doctor to give oral evidence. She did not have all her patient notes for the plaintiff, but she was very supportive of her patient. Dr Fraser recalled finding the plaintiff to be depressed when she first saw her. Yet she did not refer the plaintiff to Ms Jacobsen until May 2002, and she acknowledged that the plaintiff was not able to establish a therapeutic relationship with the psychologist. Dr Fraser also said in her expert's report that she referred the plaintiff to Dr Kathy Rohan, a psychiatrist, in August 2002. In her evidence-in-chief Dr Fraser explained that the plaintiff did not get any treatment from the psychiatrist whom she only saw once. Dr Fraser said that the plaintiff recovered "quite well" from the fractured humerus and confirmed that that injury had, in her opinion, "no bearing upon the ongoing course of the plaintiff's symptomatology". Dr Fraser considered that the plaintiff has a problem with alcohol which could limit, both psychologically and physically, her future functioning. Dr Fraser said that chronic pain syndrome tends to improve gradually over time and that the plaintiff's depression was likely to improve as her life circumstances improved. Dr Fraser said that it was "possible", though not "highly likely", that the plaintiff would be able actively to use her right hand and arm again as a chef. Dr Fraser hoped that the plaintiff's condition would improve significantly once this case was finalized.

23. The plaintiff gave evidence that she continues to take painkillers and anti-inflammatory and anti-depressant medication prescribed by Dr Fraser. She denies that she has a drinking problem. She is not looking at present for a full-time job, but believes that she could work as an owner or manager in the food industry. She cannot lift heavy cooking utensils or heavy loads of washing. Mr Chivers gave evidence that during his relationship with the plaintiff she complained of pain, drank to excess, was generally unhappy, and performed some tasks slowly. The plaintiff's mother also gave evidence. Mrs Dean works full-time in administration at The Canberra Hospital. She said that the plaintiff was unable to lift larger cooking pots, to vacuum or to change the sheets on a bed. Mrs Dean said that she had noticed no improvement in the plaintiff's condition since returning to live in Canberra in 1999. She also said that she averaged about an hour a day "doing things" for the plaintiff "when she's at home". In cross-examination, Mrs Dean allowed that "physically" there had been "some minimal improvement" in "what [the plaintiff] can do with her hands". Mrs Dean explained that the plaintiff did not always stay at her parents' house when she was in Canberra and that she sometimes stayed overnight with friends. Mrs Dean bridled at the suggestion that she might spend less than an hour each day doing things for her daughter and refused "to answer that question because I would really have to sit down if you want a quantum time. I would really need to sit down and work that out".

24. I turn now to the legal issues. The plaintiff's action is framed in contract, not negligence. The amended statement of her claim alleges that it was an implied term of the contract of employment between the defendant and the plaintiff that the defendant would (a) take all reasonable precautions for the safety of the plaintiff while she was carrying out her assigned work, (b) not expose her to any risk of damage or injury of which it knew or ought to have known, (c) take reasonable care that the place in which the plaintiff carried out her assigned work was safe, and (d) provide and maintain a safe and proper system of work. That allegation is denied in the amended defence, but such a pleading is quite hopeless. It is axiomatic that the courts will import into a contract of employment a duty on the part of the employer to take reasonable care for the safety of the employee in all the circumstances of the case. The implied term pleaded by the plaintiff accurately identifies this overriding duty and singles out the defendant's obligations as part of that duty to provide both a safe place of work and a safe system of work. In my opinion, the alleged term arises by necessary legal implication from the relationship of employment.

25. Breach of that contractual term is also denied. However, I am perfectly satisfied a breach has been made out. It was not, and could not, have been suggested that the crate was a suitable device for access to and from the trailer. The risk of injury was obviously foreseeable, even had the staff not complained of the crate's instability. The danger was increased by the necessity to step over the wire rope. The easy precaution was to close the marquee side door or to fix a proper portable set of steps to that door. Mr Lizotte suggested that the wire rope prevented the door being closed. However, the door could have been closed before the trailer was positioned next to the marquee. When the same trailer was used by the defendant in the following month for another concert in Perth, the side door was kept closed. After the plaintiff's accident, the wire rope across that door was disconnected. The earlier removal of this obstacle would have also permitted the door to be closed whilst the trailer remained in place.

26. Mr Lizotte's alleged instruction to staff about the use of the marquee side door is an important element in the defendant's case. It is pleaded as a defence to the charge that the defendant failed in its duty to lay down a safe system of work, and it is also relied on to establish contributory negligence on the part of the plaintiff and a breach by the plaintiff of her obligations under the contract of employment. However, I am not satisfied that the plaintiff was ever instructed by Mr Lizotte not to use the marquee side door. It is significant that Mr Lizotte recalled expressing only a preference that staff not use that door and, more importantly, that the door continued to be used by staff and Mr Lizotte. Mr Gray was plainly doing his best to recall events, but it is unlikely that he would have a better recollection of what was actually said than the managing director himself. It was no part of Mr Gray's job to deal with staff complaints. Further, unlike Mr Warby and Mr Treacy, he was not part of the kitchen brigade. Mr Warby described a usual routine where food was taken out of the kitchen to the marquee by way of the side door and where dirty plates and stores were brought into the trailer by the end door. The sinks used by the kitchenhands for washing up were adjacent to the end door of the trailer. Any words uttered by Mr Lizotte were quite inadequate to discharge the duty owed by the defendant to its employees. There was also a suggestion in a line of questioning put to the plaintiff in cross-examination that it was one of her tasks as head chef for the tour to organize a safe system of work. Unsurprisingly, no such assumption by the plaintiff of her employer's duty was made out.

27. Counsel for the defendant contends that this action is governed by the Workers' Compensation and Rehabilitation Act 1981 (WA) as the lex loci delicti. I reject that submission. In John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (at 519 [20]) that, in cases concerning contracts, the courts seek to identify the proper law of the contract. The view was subsequently taken in Gerstang v Cedenco JV Australia Ltd [2002] NSWSC 144 that that statement of principle extended to a claim for damages for personal injury based on the breach of a contract of employment. I respectfully agree with that view. (Contrary to the suggestion in a subsequent article in the NSW Law Society Journal (2001 Vol 39(4) p 62), the accepted theory in relation to choice of law for contracts was not qualified in any way in the John Pfeiffer joint reasons by what was said (at 538-539 [81]) about difficulties in locating the place of a tort.)

28. The parties are agreed in this case that the law of New South Wales is the proper law of the subject contract of employment. Section 151E(3) of the Workers Compensation Act 1987 (NSW) ("the Act") provides that Div 3 of Pt 5 of the Act applies to an award of damages in respect of an injury caused by the negligence of a worker's employer "even though the damages are recovered in action for breach of contract". However, by virtue of Sch 6 Pt 18C cl 9 of the Act, the provisions of Div 3 (ss 115E-115T) in force prior to 27 November 2001 apply to this action.

29. Section 151N(1) of the Act provides that the "common law and enacted law as to contributory negligence" apply to awards of damages. This means that, notwithstanding the fact that the plaintiff's action is one for breach of contract, the defendant may plead contributory negligence. The matters relied on to establish that plea are essentially the same as those that are alleged in the counterclaim set up by the defendant to constitute breaches by the plaintiff of the terms of her employment. These are the failure to obey Mr Lizotte's instruction and the failure to use the end door. (An allegation of intoxication at the time of the accident was not pursued.) I have already found that Mr Lizotte did not instruct the plaintiff not to use the marquee side door. The plaintiff said that she did not use the end door because the floor of the kitchen near that door was wet. I doubt that she turned her mind at all to the condition of the floor. The plaintiff's evidence on this point was argumentative and unconvincing. Nonetheless, I do not think that, in choosing to take the shortest route via the side door, the plaintiff showed a want of reasonable care for her safety. The hour was late. It had been a long day. Mr Treacy was still "around", but it was necessary to intercept him before he finished up so that hungry people could be fed. In the circumstances taking the rear door would have involved excessive circumspection and a less than enthusiastic performance of the head chef's role having regard to her past experience with the hazard presented by the wobbly crate. I am unable on the evidence to detect any blameworthy want of care on the part of the plaintiff. Neither contributory negligence nor a breach of any contractual obligation has been established.

30. I turn now to the assessment of damages. It must be accepted that the plaintiff suffered a very painful right wrist for some weeks after the accident. She subjected herself to conventional treatment for a fracture, although it is clear that her wrist was never broken. Any causal link between the plaintiff's fall and both the ganglion and the compressed tendon sheath upon which Dr Roberts operated is problematic, but this surgery left her with a small scar. Weakness and limitation of movement in her right hand have been demonstrated in varying degrees over the time since the accident. Yet, beyond an inability to lift heavy cooking pots with that hand, the plaintiff has not described any truly physical limitations upon her ability to work. Her obviously sympathetic GP, Dr Fraser, supports a diagnosis of chronic pain syndrome because the plaintiff's presentation of pain over the time since the accident cannot be explained by discrete pathophysiological findings. Significantly, however, Dr Fraser also regards the plaintiff as depressed.

31. The plaintiff's non-drug therapy moved through various stages, physiotherapy in Sydney to hydrotherapy and acupuncture in Canberra, to a point where, by the end of 2001, it consisted solely of "home exercises". She now wears the wrist brace occasionally. The emergence in mid-1999 of complaints of pain in the right shoulder and upper cervical spine is puzzling. It is instructive that Dr Hamilton's suggested treatment was eschewed for no apparent reason. There are a number of unsatisfactory gaps in the medical evidence. There is no report dealing with the fracture of the right humerus in May 2001. The evidence of the treating surgeon, Dr Roberts, stops before that incident. It excites suspicion that, according to Dr Fraser, she recovered quite well from that presumably non-compensable injury.

32. The medical evidence on the plaintiff's psychological condition is not helpful to her case. Dr Roberts reported to Dr Mak as early as 14 December 1998 that she was seeing a clinical psychologist for assistance with depression. The plaintiff did not mention such treatment in her evidence. Dr Corry and Dr Yuan both considered she needed psychological assessment. The assessment of the plaintiff's psychiatric condition made by Dr Lewin in December 2000 is utterly convincing. Dr Edwards' opinion to the same effect, provided almost two years later, was only a little more tentatively expressed. There is no evidence of the assessment made by Dr Rohan. There cannot be the slightest doubt that the plaintiff has a serious problem with alcohol that antedates her accident. I am not able to find on the evidence that this problem was exacerbated by the accident. The plaintiff has also experienced a fair degree of turbulence in her private life which, as Dr Lewin's report shows, has nothing to do with the accident. Since that report the plaintiff has, of course, broken up with Mr Chivers. The evidence suggests that the plaintiff needs treatment for her depression beyond mere medication. Dr Fraser labels her condition a reactive depression, but stressors other than pain are just as likely to account for that condition. The plaintiff is obviously no stoic, yet I do not understand her to complain of constant pain in her right hand and she avoids any physical task that would cause her pain. Her presentation in the witness box was quite sullen and betrayed an obvious resentment of the necessity to litigate her claim. I am unable to find that any depressive symptoms currently experienced by the plaintiff or other ongoing problems in her psychological well-being are attributable to the accident in anything but the slightest degree.

33. I have traced the plaintiff's extremely modest work history since she fell off the crate. Useful insight into her vocational capacity is provided in two reports by Mr De Giovanni. In his first report he sets out very fully the plaintiff's education and employment history up to the time of the accident. This usefully amplifies the account given by the plaintiff in her evidence of her peripatetic lifestyle. The results of vocational testing showed that the plaintiff had a somewhat inflated view of her intelligence. In particular, Mr De Giovanni considered that her intention to pursue an interior design course was unrealistic. It is instructive that the plaintiff did not succeed in her work trial in 1999 because of a lack of computer skills and that in 2000 she ultimately failed to progress with her interior design course (although she gave a different reason). When Mr De Giovanni assessed the plaintiff the second time on 23 May 2002, he found her "much angrier". Mr De Giovanni considered that she was capable of performing a number of jobs in the retail sales areas, but noted that she had no interest or motivation to work at that time.

34. The plaintiff's claim for economic loss is based on pre-accident earnings with the defendant of $775 net per week. Her tax returns show this to be a heroic claim. The plaintiff never averaged anything like that figure in the years immediately preceding the accident. The tax returns for those years show that she was frequently out of work and in receipt of social security payments. Earnings from running her own business were also far below the amounts she received in short-term employment. (Interestingly, she had also worked previously in Canberra in After School Care.) The income from workers compensation payments in the 1999 tax year far exceeded pre-accident earnings. The plaintiff was born on 8 May 1968. She was almost thirty years old at the time of the accident. Nothing in her employment records suggests that she was ever likely to be in year-round employment or running a successful catering business. After the accident the plaintiff apparently considered she should be a television presenter. I have the impression that there may be a "Walter Mitty" quality to her aspirations.

35. Damages for "non-economic loss" were dealt with in s 151G of the Act. The expression "non-economic loss" was defined to mean pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 151G(2) provided:

"The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded."

That maximum amount is $226,650, and s 151G(3) provided that it was to "be awarded only in a most extreme case". A comparable statutory provision was explained by the NSW Court of Appeal in Southgate v Waterford (1990) 21 NSWLR 427, where it was observed (at 440) that quadriplegia would clearly constitute "a most extreme case". Bearing that in mind, I regard a proportion of one quarter ($56,662.50) as too generous and a proportion of one-fifth ($45,330) as closer to the appropriate figure. In my opinion, the word "proportion" does not require a whole number to be used in fixing a ratio between the award in this case and the maximum amount. (The indexed figures under the Act contemplate awards of $40,000 and $53,350 which are not derived from proportions using whole numbers.) Having regard particularly to the slight disfigurement of the plaintiff's hand, I consider a fairly generous assessment of the plaintiff's amount of non-economic loss to be $50,000 as a proportion of $226,650.

36. Because the amount of non-economic loss has been assessed to be between $40,000 and $53,350, the amount of damages to be awarded for non-economic loss must be calculated in accordance with the formula provided in s 151G(5) of the Act. This requires that an amount of $40,000 be deducted from the amount of $50,000 assessed as the non-economic loss and the resulting difference of $10,000 be multiplied by a factor of four. The amount of such damages will, therefore, be $40,000.

37. That award is below the threshold fixed by s 151H of the Act for an award of damages for economic loss. Damages awarded under the principle in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 are damages for economic loss for the purposes of the Act: Cargill Australia Ltd v Agius [2002] NSWCA 119; (2002) 54 NSWLR 282. Accordingly there will be no award of damages for economic loss. The plaintiff will not suffer any additional loss for which she is to be awarded damages in accordance with the principle laid down in Fox v Wood (1981) 148 CLR 458. The out-of-pocket expenses were agreed at trial. The amount of such special damages may have increased since trial. However, such damages may well be damages for economic loss, and I was not addressed on the scope for their recovery under s 151F of the Act. In those circumstances I shall direct the parties to bring in short minutes of the orders they propose to give effect to these reasons for judgment. If the quantum of any particular out-of-pocket expenses cannot be agreed between the parties, it may be necessary for the plaintiff to apply to re-open her case to adduce evidence on that limited topic.

I certify that the thirty-seven (37) preceding paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Date: 6 October 2004

Counsel for the plaintiff: M J Cranitch SC with J T de Berg

Instructing solicitors: Blumers

Counsel for the defendant: G P McNally

Instructing solicitors: Hunt & Hunt

Dates of hearing: 3-4 June, 7 August 2003

Date of judgment: 6 October 2004