Sprowles v Makita [1999] NSWSC 1239 (22 December 1999)

Last Updated: 24 December 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Sprowles v Makita [1999] NSWSC 1239

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 20841/97

HEARING DATE{S): 23/11/99, 24/11/99, 25/11/99, 26/11/99, 29/11/99, 30/11/99

JUDGMENT DATE: 22/12/1999

PARTIES:

Vicki Jane Sprowles v Makita (Australia) Pty Limited

JUDGMENT OF: James J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

RS Toner SC/M Jenkins (Plaintiff)

MJ Cranitch SC/P Morris (Defendant)

SOLICITORS:

Shephard & Shephard (Plaintiff)

Moray & Agnew (Defendant)

CATCHWORDS:

Negligence - Causation

ACTS CITED:

DECISION:

Verdict for the Plaintiff

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

JAMES J

Wednesday 22 December 1999

020841/97 - Vicki Jane Sprowles v Makita (Australia) Pty Limited

JUDGMENT

1 HIS HONOUR: This is an action for damages for personal injuries brought by the plaintiff Vicki Jane Sprowles against the defendant, her former employer Makita (Australia) Pty Limited ("Makita") arising out of an accident which the plaintiff alleges occurred on 30 June 1986. The plaintiff claims that on 30 June 1986 she slipped and fell down some stairs on a stairway leading from a roof top car park to her employer's office in a building at Gladesville. The proceedings were commenced in the District Court, after an extension of time had been granted in which to commence the proceedings, and they were then transferred to the Supreme Court. As the alleged accident happened as long ago as 30 June 1986, the assessment of damages, if the plaintiff succeeds in establishing liability, is unaffected by the provisions of Div 3 of Pt 5 of the Workers Compensation Act. Makita has disputed liability, disputed that the plaintiff has really suffered all of the symptoms and disabilities she has claimed and disputed that any symptoms and disabilities she has really suffered were caused by any accident on 30 June 1986.

2 The evidence at the trial consisted of oral evidence given in the plaintiff's case by the plaintiff herself, her mother, three women friends of the plaintiff, a scientific expert Associate Professor D H Morton and a psychiatrist Dr Andrew Wilson; oral evidence given in the defendant's case by Mr Geoffrey Firth, a former employee of the defendant, and by Dr David Millons, an orthopaedic surgeon; and various documents tendered by either the plaintiff or the defendant.

The Plaintiff's Evidence in Chief

3 The plaintiff was born on 14 October 1955. She was accordingly thirty years old at the time of the alleged accident and is now forty-four years old.

4 She left school after obtaining her school certificate. After leaving school she did a course to become a computer operator. She then worked as a computer operator for a number of employers, including AEWL (the Association of Employers of Waterside Labour) for which she worked for eight and a half years.

5 The plaintiff has never married. However, between October 1980 and October 1990 she was, subject to at least one interruption, in a de facto relationship with a man named Dormer. Evidence was later given that in 1984 she became pregnant to another man but had the pregnancy terminated.

6 In December 1985 the plaintiff was diagnosed as having endometriosis, a condition which would make it difficult for her to become pregnant.

7 The plaintiff became employed by Makita on 14 January 1984 and remained employed by Makita until December 1992. For the first twelve months she was employed by Makita she was a computer operator. Then she was promoted to supervisor and in about 1990 she was promoted to the position of trainee programmer.

8 Between the end of 1985 and the date of the alleged accident the plaintiff's mother had a stroke. In April 1986 the plaintiff's father, with whom she had had a close relationship, died after a long illness. About this time the plaintiff was prescribed anti-depressants, which had the opposite effect from that intended by making her feel depressed and suicidal.

9 In June 1986 the plaintiff was living at Kenthurst. Each day she drove in her car from her home to Makita's premises at Gladesville, parked her car in the car park on the roof of the building, walked through a fire door and then walked down concrete stairs to the first floor of the building, where she worked.

10 The plaintiff said that on 30 June 1986 she was wearing flat red shoes when she went to work and she identified a shoe shown to her as being one of the shoes she had been wearing on that day. She said that she had owned the shoes for two months, during which she had worn them probably once a week, and that after the accident she had worn the shoes for a short further period of time and had then stopped wearing them.

11 The plaintiff said in her evidence that the stairs were made of smooth concrete. She also said that the stairs had "dusty grit over them" but in his final submissions her counsel did not seek to rely on this evidence.

12 On the morning of 30 June 1986 the plaintiff walked down one flight of steps on the stairway, walked across the landing and then started walking down a second flight of eight or nine steps. There was a railing on the right hand, interior, side of this flight. The plaintiff gave the following further evidence:-

"I took a couple of steps. Going from memory my foot went out from underneath me and I tried to grab the rail to stop myself from falling but the next thing I was crashing down the stairs out of control. I could not stop myself. The next thing I knew I was at the bottom".

13 On a photograph of the flight of steps the plaintiff identified the third step from the top as being the step she had fallen from.

14 The plaintiff gave further evidence:-

"When I hit the bottom landing I was thrown back and my head was jammed up underneath the bottom handrail.."

15 The plaintiff said that she felt pain in her lower back, her left arm and in her head and she was in shock. She had a cut on her left leg, which was bleeding.

16 The plaintiff told her superior Mr Firth what had happened. She remained at work that day. However, she said that "by the end of the day everything was sore". She drove home, experiencing difficulty in changing gears in her car. She did not go to a doctor "because I just thought I was bruised". She woke up the next morning "very sore".

17 The plaintiff said that between 30 June 1986 and 10 July 1986 she felt pain in her spine, head, neck, right arm, shoulder, collar bone and left leg. On 10 July 1986 while she was at work the plaintiff bent down to put some paper into a printer and "I found as I went... to straighten up I couldn't straighten up... it hurt like billyo... at the base of the spine and up a bit", where she had been feeling pain since 30 June.

18 On 10 July 1986 the plaintiff consulted an osteopath Louise Adam. The plaintiff claimed in her evidence that she saw Louise Adam two or three times a week for the first couple of weeks. However, receipts kept by the plaintiff indicate that for the first few weeks she saw Louise Adam once a week and that she saw Louise Adam a total of sixteen times between 10 July 1986 and 27 November 1986. The plaintiff resumed seeing Louise Adam on 13 July 1987 and then saw her on many occasions up to 7 November 1989. The treatment given by Louise Adam relieved the plaintiff's pain "temporarily".

19 The plaintiff consulted another osteopath Julie Chenery once in each of the months of August, September and November 1986. The plaintiff explained that she initially saw Julie Chenery when she needed to see an osteopath urgently and Louise Adam was unavailable. The plaintiff consulted Julie Chenery regularly between 4 December 1986 and 6 July 1987. After that she saw Julie Chenery on a few isolated occasions.

20 The plaintiff gave evidence about other incidents in which she had been involved. In about 1971 she had fallen off a horse and torn ligaments in her left knee but she had had no residual problems.

21 The plaintiff had had two motor vehicle accidents in 1981 and one in 1986. She said that she had not been hurt in two of these accidents. In one of the accidents occurring in 1981 she had suffered a whiplash injury and had had to wear a neck brace for a week. She had two further motor vehicle accidents in September 1987 and February 1989, which were minor.

22 In her evidence in chief the plaintiff was asked about her relationship with Mr Dormer. When asked whether there had been incidents of violence, she answered "not intentional". However, Mr Dormer had broken her nose "by accident". She had protested to him about the dangerous way in which he was driving a car in which they were travelling. According to the plaintiff, Mr Dormer went to hit her on the shoulder but she spun her head to say something to him and Mr Dormer's fist connected with her nose. In another incident Mr Dormer put his hands on top of the plaintiff's head and pushed down. The plaintiff denied that this incident had caused her any injury. At first the plaintiff said that this incident had happened about two weeks before the accident on 30 June 1986. Then she said it had happened about two weeks before her birthday on 14 October 1985.

23 In about August 1988 the plaintiff first consulted a chiropractor, Mr Goodrich. She said that when she first saw Mr Goodrich she had two types of "coloured vision", headaches, a tendency to drop glasses or cups, pain in her face, locking of her jaw, a feeling that her throat was swollen and pain down the whole of her spine and in her left leg. Of these symptoms the only one which has so far improved is the locking up of her jaw. When the plaintiff saw Mr Goodrich she was asked to give a full history, so she told Mr Goodrich about the incidents in which she had fallen off a horse, which had required her to wear a neck brace and in which her boy friend had pushed down on her head. The plaintiff saw Mr Goodrich on many occasions between August 1988 and June 1992.

24 The plaintiff saw a physiotherapist Louise Weavers on half a dozen occasions in December 1988. She saw another physiotherapist L Werners on many occasions between January 1989 and June 1989. Between July 1989 and July 1990 she saw another physiotherapist Colette Roberts many times.

25 In December 1989 the plaintiff commenced seeing another osteopath Anne Petrie, in lieu of Louise Adam, because Anne Petrie's premises were closer to the plaintiff's home. The plaintiff saw Ms Petrie on a large number of occasions between December 1989 and November 1997.

26 The plaintiff said that at times she was seeing an osteopath, a chiropractor and a physiotherapist, all in the same week. The treatments she received afforded her only temporary relief, for a few hours only.

27 At about the end of 1989 the plaintiff contracted glandular fever. She was incapacitated for six weeks. After she had recovered, the symptoms she continued to experience were the same as she had experienced before she contracted glandular fever.

28 In 1990 the plaintiff became pregnant by Mr Dormer. She had the pregnancy terminated at about eight weeks through the Pre-Term Foundation. When asked in her evidence in chief why she had had the pregnancy terminated she said that she was having problems with her breathing. "I felt dreadful and I didn't think that the child was getting enough oxygen. If I wasn't getting enough oxygen, I didn't think the child was". It was "a big decision" to terminate the pregnancy and not one she wanted to take.

29 In late 1991 the plaintiff formally reported the accident on 30 June 1986 for the first time. She said in her evidence "I was getting tired of paying all the bills and once I found it wasn't too late to put a claim in, I thought I can at least put a claim in and ask them about the bills". On 29 November 1991 the plaintiff wrote a letter to the financial controller of Makita in the following terms:-

"On June 30, 1986, as I was walking down the stairs from the carpark at our previous offices at Gladesville, I fell down from the last landing. I was limping badly and had cut my leg which was bleeding. I advised my boss, Geoff Firth immediately, although at the time I presumed the pains I felt would dissipate. However, the pains got worse and other symptoms, such as daily migraines and coloured vision, feeling sick, loss of strength in my arms and legs appeared, until finally one day at work, as I bent over to move a box of paper, I found it so painful to resume standing that I decided to seek an osteopath to find out what was wrong.

I saw the osteopath twice a week to start, then weekly unless I was sick. Finding that I wasn't getting much better, I sought a chiropractor, then a physiotherapist. I changed osteopaths and started to get better, however, I still have to have weekly visits to keep reasonably free from pain, as well as seeing the chiropractor once a month.

Eventually, I realised the costs were too great so I spoke to Makita, who advised that I write this letter and they would forward it on to the Insurance Company involved.

I don't recall there being any witnesses to my fall".

30 On 20 December 1991 a notice of injury was lodged by the plaintiff. In answer to a question on the form of notice of injury "what happened", she wrote:-

"On the way down the steps from the car park on the roof I slipped and fell to the bottom".

31 On the employer's report of the injury the plaintiff wrote:-

"At work coming down the stairs from the car park I slipped and fell to the next landing".

32 The plaintiff had continued working at Makita. Apart from when she was ill with glandular fever, she had not missed any time off work.

33 In January 1992 a man named Weekes commenced working for Makita. He worked in close proximity to the plaintiff. According to the plaintiff, Mr Weekes engaged in sexual harassment of her. The sexual harassment included making lewd remarks to her on a daily basis. The plaintiff complained to Mr Firth but did not specify sexual harassment. Eventually on 7 December 1992 she complained to Mr Firth that Mr Weekes was sexually harassing her. On the same day the plaintiff wrote and handed in a letter of resignation. The letter was in the following terms:-

"As a result of sexual harassment in the form of being verbally abused and called a slut several times, I have come to the conclusion that it would be in my best interests if I am no longer forced to work with one Michael Weeks and therefore I hereby tender 2 weeks notice of my intention to resign my position at Makita Australia".

34 In her evidence the plaintiff denied that sexual harassment was the sole reason for her resigning. She had written the letter in the heat of the moment. The other reason for her resignation was "I was just too sick to keep going on. I just couldn't cope with his harassment any further". Pain in various parts of her body was making it difficult for her to sleep. She was having difficulty in remembering and concentrating.

35 After the plaintiff resigned, she took proceedings under the Anti-Discrimination Act against Makita and obtained a lump sum by way of compensation. She also successfully took proceedings against Makita for the recovery of the value of long service leave and other entitlements. After she resigned her symptoms became worse. The symptoms included pain, insomnia and dizzy spells.

36 Since she resigned from Makita the plaintiff has done little work. In 1993 she worked for a company named Promath, selling mathematics teaching cassettes for school children. According to her evidence, she underwent training for two to three weeks and then worked for five or six weeks, although in answer to a leading question put by her counsel she agreed that she had worked between January and October 1993. She was dismissed because of absences from work.

37 The plaintiff then worked for a company called Tresleaf, doing piece work at home putting plastic sheets on wires of electrical components. She found that doing this work caused her right arm and her back to ache.

38 In 1996 the plaintiff did a few days work for the Australian Bureau of Statistics, distributing and then collecting census forms.

39 By some time in 1993 the plaintiff had run out of money. The plaintiff went to the Commonwealth Employment Service and registered for the New Start Programme. She "blanked out" in a CES office and it was suggested to her that she should see a doctor. It was then, in about July 1993, that for the first time she saw a doctor, a general practitioner Dr Batterham.

40 In October 1993 the plaintiff went to live with her mother at her mother's home and she has remained there until the present. Since June 1995 she has been receiving an invalid pension.

41 The plaintiff gave evidence about what she says are her present symptoms and disabilities. Her complaints include the following. She can only walk a very short distance, before she gets hot, is unable to get sufficient air in, gets dizzy and blacks out. She always has headaches, which are worse when she has coloured vision. She has episodes of coloured vision, sometimes three or four times a week, which last between twenty minutes and an hour. She sleeps very little at night, sometimes two or three hours and sometimes not at all. She takes imovane and valium for her insomnia. Her memory is "dreadful". Her ability to concentrate "waxes and wanes". She has difficulty in moving her head in relation to her neck. Her upper back is always sore. If she uses her right arm, the whole arm "stops working". She is restricted in raising her right hand above shoulder height. Her left leg and her hip ache. She has no appetite; she has only one meal a day and if she is feeling nauseous she does not eat at all. She is depressed, anxious, easily emotionally upset and not alert. She used to have a good sex life but last had sex in 1996. When she attempted to have sex, she got out of breath, could not achieve orgasm and her lower back became sore.

42 The plaintiff gave evidence that at present she was having a hour's massage twice a week and was also seeing an osteopath once a week. Receipts indicate that between 29 October 1999 and 19 November 1999 she was regularly receiving "remedial massage therapy" from Penelope G Wardle and osteopathic treatment from a Windsor osteopathic clinic.

43 In the past the plaintiff has, apart from osteopaths, chiropractors and physiotherapists, tried laser treatment, hypnotherapy, acupuncture and radionics, none of which would appear to have helped her.

44 After the plaintiff has been to a masseuse or an osteopath she has a hot bath for half an hour and then lies down for half and hour. She takes various medications, principally analgesics and drugs for her insomnia.

45 The plaintiff did not complain that she was incapable of attending to her own personal care, although she said that she had difficulty in showering, because she could not tip her head back and she had to get into a bath backside first, because her feet are "very cold" and "can't feel" and she gets chilblains if she puts her feet in first.

46 The plaintiff is still living with her mother, who is now seventy years old, who had a stroke in 1986 and who this year suffered from pneumonia. Her mother does everything in the household, cooking, cleaning (although someone is now employed to come in and clean the house), mowing, gardening, washing and ironing. The plaintiff estimated that her mother spends four hours a day looking after the plaintiff and has been doing so since October 1993.

47 The plaintiff said that her ambition had been to succeed Mr Firth as the person in charge of data processing at Makita and to work until she was sixty-five. She said that she was now incapable of working, "because I am in pain the whole time, because I can't think straight, because I can't remember anything, because I can't concentrate on things, because my right arm stops working on me. There's many different reasons".

48 At the conclusion of her evidence in chief, after an overnight adjournment, the plaintiff was asked further questions about her relationship with Mr Dormer. This time she said that there had been incidents of violence, both before and after the accident, but "only a couple". She had not told anybody except a girlfriend, because she was too embarrassed to tell anybody else.

The Plaintiff's Cross-examination

49 The plaintiff was cross-examined at length. I have considered all of the evidence she gave in cross-examination but I will not attempt to refer to all of it in this judgment.

50 The plaintiff confirmed that the shoes she was wearing at the time of the accident had been relatively new shoes. She had thought that she had thrown away the shoes but she had found them in a box of old shoes, when she was cleaning out a shed. She agreed that at the time of the accident the shoes would have been less worn than they appear now and would have had more tread.

51 The plaintiff agreed that she had not slipped on the stairs on any occasion before the day of the accident. She had not gone back after the accident and inspected the stairs.

52 The plaintiff claimed that she had slipped on grit on the stairs, which had fallen from cracks in the walls of the stairway. "You could hear the grit crunching underneath your shoes, when you walked on it".

53 The plaintiff's attention was directed to an affidavit she had sworn on 20 December 1995 in the District Court, in support of her application for an extension of time in which to commence proceedings. In this affidavit she had given a detailed account of the accident but had not mentioned any grit on the stairs, saying only that the stairs were worn and smooth.

54 The plaintiff was cross-examined about why she had not gone to a doctor, after having the fall and experiencing the symptoms she claimed she had experienced. She replied that she had expected to be sore and bruised and to have a headache (having been hit on the head), that she preferred alternative treatment to treatment by doctors and that previously she had seen doctors only occasionally.

55 The plaintiff gave further evidence about her treatment by Louise Adam. On the first occasion, on 10 July 1986, Louise Adam had performed a "lumbar roll" and after this treatment the plaintiff was able to stand straight, although she still had pain in her back. The relief the plaintiff gained from being treated by Louise Adam sometimes lasted only an hour. Sometimes the relief lasted until the next day. Louise Adam allegedly told the plaintiff that she had "muscle spasms", that, no matter how much Louise Adam massaged the plaintiff, the plaintiff's joints would keep "locking up" and "I would need treatment for the rest of my life and I believed her".

56 In a letter of 23 June 1992 to the defendant's insurer Louise Adam advised that her notes about the plaintiff had been lost. The plaintiff said that she had spoken to Louise Adam just after these proceedings were commenced and had been informed by Ms Adam that her notes had been destroyed by water damage from a storm.

57 The plaintiff said that she was not sure whether she had given a history to Julie Chenery. She conceded that she was aware that Julie Chenery had reported in writing that she was not aware of the plaintiff having suffered any work injury and that the plaintiff had given Ms Chenery a history of having been the victim of domestic violence. The plaintiff did not know why Julie Chenery had written this in her report and had said nothing about the plaintiff's fall.

58 The plaintiff was cross-examined about a history recorded in a report from Mr Goodrich, in which Mr Goodrich had said:-

"Ms Sprowles first attended this clinic on 28-7-88 due to symptoms apparently incurred from being `pushed down on ?? to the top of my head' causing cervical spine and headache symptoms, then two weeks later another fall causing lumbar spine and left leg symptoms. All this occurred 2-3 years previous to initial consultation".

59 The plaintiff said that the "fall" referred to in Mr Goodrich's report (assuming that it was the fall on 30 June 1986) had occurred, not two weeks after, but several months after, Mr Dormer had pushed down on the top of her head. When asked if she could explain what Mr Goodrich had written, the plaintiff said "I'm always told I talk too fast and could I slow down". According to the plaintiff's evidence, she had suffered more than lumbar spine and left leg symptoms as a result of the fall on 30 June 1986.

60 The plaintiff was cross-examined about a report from Louise Weavers in which Ms Weavers said that she had treated the plaintiff from January 1989 to June 1989 for a whiplash type injury sustained in a car accident during November 1988. The plaintiff said in her evidence "she (that is Ms Weavers) wrote some phantom- some car accident that never existed".

61 The plaintiff gave further evidence about her work at Makita. She said that she was physically up and down all day and that the job demanded her full attention. After the accident she had gained significant promotions, involving more complex duties. She had often felt ill at work and had asked Mr Firth if she could leave work and see an osteopath or a chiropractor. She denied that she had not told Mr Firth until 1988 that she thought that her health problems were due to the accident. She had tried to hide her condition from people at work, because she did not want it to interfere with her career.

62 The plaintiff had been very sick with the glandular fever. She was away from work for four weeks. She then resumed working but was ill and was advised by Mr Firth not to come back to work, until she was feeling better. She resumed working again two weeks later. She was excessively tired for a further two months. Later in the cross-examination the plaintiff expressed the opinion that the condition of fibromyalgia later diagnosed by Dr Wilson had made her susceptible to getting "a teenage disease" (that is, glandular fever) at the age of thirty-four.

63 The plaintiff was cross-examined about the sexual harassment by Mr Weekes and the cessation of her employment. She left work because of the dispute with Mr Weekes and "the fact I was getting worse". Until the dispute with Mr Weekes she had not thought of leaving work. "I had no intentions of quitting my job. I was going to work until I was sixty-five. I wasn't going to let my sickness stop me".

64 The dispute with Mr Weekes "started a couple of weeks after he started" and "it gathered momentum until December. It was just unbearable". The dispute with Mr Weekes was "nasty". Mr Weekes had even threatened physical violence. The dispute made the plaintiff feel worse. The plaintiff asked Mr Firth to speak to Mr Weekes. When Mr Firth refused to speak to Mr Weekes, the plaintiff said that she would have to leave.

65 The plaintiff was cross-examined about an apparent inconsistency between her evidence and her affidavit of 20 December 1995. In her evidence she had said that her symptoms had been getting worse in 1991 and 1992. In her affidavit she had said that by 19 June 1992 she had felt "there was improvement, although the rate of improvement was slow". The plaintiff maintained that in 1991 and 1992 her symptoms had been getting worse, although one particular symptom, namely her problems with her right arm, had improved, because she was no longer required to do data entry work with her right hand.

66 The plaintiff was also cross-examined about parts of her affidavit of 20 December 1995 in which she had said that she had resigned as a result of sexual harassment and had said:-

"During August 1993 I started to have breathing problems and I could not sleep. At that time I started to have depression. My condition began to deteriorate. My symptoms no longer waxed and waned".

67 The plaintiff was also cross-examined about a passage in a report by Dr Wilson of 8 May 1995 in which Dr Wilson said:-

"Over the period from up until the commencement of the alleged sexual harassment at work, her symptoms were in fact improving significantly in response to osteopathic and other treatment, however, as a result of the marked increase in psychological stress produced by the alleged sexual harassment which commenced in 1992 and by her account was present on a continual basis over the next twelve months led to a marked deterioration in her symptoms. She stated that the harassment was from one particular male employee and consisted of lewd and suggestive behaviour, sexually explicit comments and, at times, overt verbal and physical aggression, such that she actually felt under threat of being assaulted. This harassment was a direct reason for her resignation at the end of 1992, following which time she has remained unemployed and unable to work. She has been markedly physically incapacitated with continuous disabling fatigue, sleep disturbance and resultant marked functional incapacity".

68 It would appear that when the plaintiff saw Dr Wilson she did not tell Dr Wilson about her glandular fever, that her de facto husband had sometimes been physically violent to her or about the termination of her pregnancy in 1990. The plaintiff said that she would have assumed that, as she had been referred to Dr Wilson by other doctors, Dr Wilson would have been informed by the doctors referring her that she had had glandular fever.

69 As regards her relationship with Mr Dormer, the plaintiff conceded that she had not told the truth on the first day on which she gave evidence, when she gave evidence to the effect that Mr Dormer had not hit her. However, she said that Mr Dormer had struck her only about ten to twelve times during the whole relationship, that she had not suffered any serious injury and that she had not been in fear of Mr Dormer.

70 The plaintiff gave further evidence about the termination of her pregnancy in 1990. It was not the first time she had had an abortion. However, this time "I was emotionally upset because I wanted to have that child but my physical condition would not allow it".

71 The plaintiff said that her career had always been her main goal in life. Possibly in her mid thirties she would have had children while continuing to work.

72 The plaintiff could not recall whether she had told Dr Wilson about the termination of her pregnancy in 1990. By the time she first saw Dr Wilson in January 1994 she had accepted that she was not going to have children.

73 The plaintiff was further cross-examined about the termination of her pregnancy, after documents had been produced on subpoena by the Pre-Term Foundation.

74 Among the documents produced were notes of counselling the plaintiff had received, which had been signed by the plaintiff. These notes included the following passages;-

"Vicki is a 34 year old woman with a pregnancy. She and her partner have ended their relationship due to this pregnancy"

* * *

"Vicki does not feel that she could cope emotionally and financially with raising a child on her own".

* * *

"She works full-time to cope with her financial commitments and would be unable to meet these, if the pregnancy were to continue. To do so would cause mother stress, which may lead to regret and resentment late in life. For her continuing emotional and mental well-being a termination of pregnancy is requested".

75 There was no suggestion in the counselling notes that the plaintiff was having any difficulty in breathing and was frightened that the foetus was not getting enough oxygen.

76 The plaintiff conceded that she had lied to the counsellor at the Pre-Term Foundation.

77 The documents produced by the Pre-Term Foundation also included a letter the plaintiff had written to the Foundation on 8 August 1996. In that letter the plaintiff had said that in 1990 she had doubted that the child would have been born normal "due to oxygen deficiency". In that letter the plaintiff had also said that there was a chance that information in the Foundation's records relating to the plaintiff might be used as evidence in a court case she was bringing against her former employer. The Foundation had previously asked whether the enquiries the plaintiff was making had anything to do with legal proceedings. However, the plaintiff resisted a suggestion put to her by counsel for the defendant that in 1996 she was trying "to change history".

78 The plaintiff was also asked about her pregnancy termination in 1984. Mr Dormer had indicated that he would not accept a child who was not his. However, the counselling notes recorded complaints by the plaintiff of severe abdominal pain and her worry that something was wrong with the child. The plaintiff conceded in cross-examination that what she had said about abdominal pain was not true. She asserted that in 1984 it was not easy to obtain an abortion and a woman had to give a reason which the Foundation would accept.

79 In cross-examination the plaintiff asserted that after the fall she had developed various skin allergies, which she attributed to the fall and which required the use of special soap and shampoo.

80 After the fall she had been sensitive to high pitched or loud noises at work, such as those made by printers, and these noises had caused her headaches.

81 In 1995 the plaintiff had complained to a Dr Berry that she had pain in both feet, which required her to walk on the outer edges of both feet.

82 The plaintiff had also complained of a feeling of strangulation. Her body would swell up, sometimes her whole body and sometimes only her stomach.

83 When asked what her present symptoms were, the plaintiff referred particularly to pain in her right arm and back, dizziness, coloured vision, headaches and insomnia. Her symptoms change on a daily basis. Whatever she tries to do leads to pain and the pain is "unbearable".

84 In cross-examination the plaintiff gave further evidence relevant to her claim for damages for the cost of care.

85 She had told an occupational therapist, Deborah Hammond, and it was true, that since she returned to live with her mother in October 1993 her mother had done everything for her, including cleaning her room, doing her laundry, doing bathroom cleaning, grocery shopping (apart from shopping for pet food for the plaintiff's cats), preparation of meals, dish washing and kitchen cleaning. The plaintiff asserted that she could not prepare meals, because she could not use her right arm and suffered pain if she stood for long or bent down.

86 Deborah Hammond had made various suggestions to the plaintiff, including preparing meals sitting down, re-arranging cupboards so that there was no need to bend and using a microwave, an up-side-down fridge and an automatic dish washer.

87 The plaintiff said that she did try to do some watering of the garden. A couple of times she had done some weeding but had afterwards suffered pain.

88 The plaintiff was cross-examined about a number of videos which had been taken of her. The videos had been taken on 12 March 1997, 9 and 10 May 1997, 16 July 1997, 16 April 1998 and 17 and 18 November 1999.

89 Before the videos were shown to the plaintiff, the plaintiff was asked to reach up behind her head with her right arm. She was very hesitant, even in lifting her hand off the bench of the witness box, and her hand reached only about the level of her ear. She claimed that performing the action hurt her. One of her complaints to Dr Millons had been that it hurt to lift her right arm above shoulder height. She said that, although she is right-handed, she was trying to use her left hand as much as possible so as to avoid pain. The plaintiff could not imagine why she would have held her arms behind her head (if the video showed her doing that) but she could have done that, if she was prepared to put up with the pain or if she was stretching her back.

90 It was put to the plaintiff that she had used a step ladder and the plaintiff recalled (correctly) an occasion on which her mother had been worried that a branch of a tree would come down on the roof of the house and her mother had asked the plaintiff to help remove the branch. It was put to the plaintiff that she had used a saw with her right arm and she replied that she had used her left arm. The plaintiff claimed "I pushed myself... and paid for it afterwards".

91 It was put to the plaintiff that she could carry shopping bags and she replied that she might have been carrying a bag full of cans of cat food.

92 The videos were then shown to the plaintiff. The plaintiff acknowledged that she was the person shown in the videos.

93 I have viewed all the videos and have taken them all into account. It seems to me that the most significant videos are those of 12 March 1997 and 9 and 10 May 1997.

94 In the video of 12 March 1997 the plaintiff is shown walking a number of times up a flight of external steps at her home, carrying a carton in both arms. She is shown bending forward from the waist or hips, so that her head was below the level of her hips. At one stage she is shown extending both arms behind and above her head for a period of many seconds.

95 On 9 May 1997 the plaintiff is shown walking, carrying a ladder and manoeuvring a tree branch with a raised right arm. She is shown sawing a tree branch on the ground, using her right hand and bending forward from her hips.

96 On 16 April 1998 the plaintiff is shown lowering a garage door, carrying a bag in her right hand and dragging a garbage bin. On 18 and 19 November 1999 she is shown squatting and carrying objects with her right hand. The plaintiff is also shown in one of the videos as walking, without any apparent restriction, what appears to be a substantial distance inside and in the environs of a shopping centre.

97 In further evidence given in cross-examination the plaintiff claimed that still photographs of her, which were taken from the video, showed that her face was "strained" on 12 March 1997. It seems to me that the still photographs of the plaintiff's face are not sufficiently clear to tell whether there is a strained expression on her face. The plaintiff claimed that she was ill for days afterwards, after helping her mother to deal with the tree branch. The garage door she was shown as pulling down was at a house where the plaintiff kept two cats. She went to this house each day, carrying bags containing cat food and wood shavings to put in the cats' litter trays.

98 The plaintiff was cross-examined about what she had told and what she had been told by various doctors.

99 She had complained to Dr Napoli about gastro-intestinal problems and had told Dr Napoli that she was drinking ten cups of coffee a day. She did not recall Dr Napoli saying, as, according to a report from Dr Napoli, he had, that her gastro-intestinal symptoms and her insomnia might be due to her caffeine intake. The plaintiff insisted that her insomnia was caused by reflux. She said that the treatment for reflux she had been given had made her ten times worse.

100 The plaintiff resisted a suggestion that she ignored any advice from doctors which she did not wish to hear.

101 The plaintiff had vigorously resisted a suggestion made by Dr Stephen that she would be better assisted by seeing a psychiatrist than by seeing a doctor who would treat her for any organic problem she might have.

102 Professor Wakefield, to whom the plaintiff was referred by Dr Batterham, suggested to the plaintiff that if she slept less during the day, she might be able to sleep at night. The plaintiff said that she had tried "heaps of times" after being awake all night to stay awake all day but had then been unable to sleep the following night. As long as the plaintiff felt pain she could not sleep. When she finally did fall asleep her sleep was comatose.

103 Dr Podgorski in August 1993 had recommended to the plaintiff that she should try to get fit by walking or doing aerobics. The plaintiff said that she had tried walking with a dog but she could not walk two streets away and back, without being so exhausted that she had to lie down for hours. She could not do aerobic fitness sessions. The inflammatories prescribed by Dr Podgorski had made her a lot worse.

104 The plaintiff gave further evidence about the job she had had distributing and collecting census forms. The distribution of forms involved walking up to a house, knocking at the door and having a conversation with the householder, which involved asking and receiving answers to about five questions. The plaintiff suffered pressure in her lower back from the walking and standing. After doing about two or three houses, she had to rest in her car for half an hour.

105 The plaintiff said that she could not do word processing, even from home, because of headaches, pain in her right arm, inability to concentrate, the need to sit in one spot while working and her sleeplessness. She was "pain ridden".

106 It was put to the plaintiff that she had managed to work between 1986 and 1992 (subject to the time when she had glandular fever), despite having those symptoms and she replied that chronic pain had worn her down.

107 It was put to the plaintiff that she attributed all her symptoms to the fall in 1986 and she replied:-

"All the symptoms started then and have continued since then. What else am I supposed to do?"

Plaintiff's Re-examination

108 In re-examination the plaintiff said that some of the boxes she had carried on 12 March 1997 contained only tapestry wools and were very light. Some of the other boxes contained legal papers and were quite heavy. After carrying the boxes she had felt awful.

109 The plaintiff said that she had held her arms up, as shown in the video, because she was stretching her back after bending. On that day she had not been feeling too bad. However, she was in pain while helping her mother and the next four or five days she was "virtually flat on (her) back". She felt pain closing the garage door but it took only a second to close it.

The Plaintiff's other Witnesses

110 The plaintiff's mother, Mrs Loris Sprowles, gave brief evidence on which she was not cross-examined. Mrs Sprowles said that while she was living at Castle Hill and the plaintiff was living at Kenthurst, the plaintiff used to call in to see her three or four days a week, when coming home from work. While the plaintiff was still working for Makita, the plaintiff had complained to her mother that "she had a bad back and was suffering from a bad neck, down her throat... weakness in one arm, dizziness, loss of memory, couldn't concentrate". The plaintiff was "very drawn and sallow". She was "not well".

111 In October 1993 the plaintiff came to her mother's place and said that she could not look after herself. Over the last six years the plaintiff has "not (been) a well girl at all". "She doesn't eat, she doesn't sleep, makes very little contact with people outside.. no social activities".

112 Lois Dinuzzo gave evidence that she had worked at AEWL with the plaintiff for seven or eight years from 1973 onwards. During this period the plaintiff had not complained about, and did not appear to be suffering from, any physical symptoms.

113 Ms Dinuzzo said that she had received a telephone call from the plaintiff, which she placed "towards the end of 1986. I am just going by the ages of my children". The plaintiff had said in the telephone call that she did not feel like her normal self, that her body was hurting and that she had trouble sleeping. Subsequently, the plaintiff and Ms Dinuzzo communicated with each other by telephone. Ms Dinuzzo saw the plaintiff again but could not recall when. She had since seen the plaintiff about half a dozen times. She had noticed changes in the plaintiff from when the plaintiff worked at AEWL. The plaintiff was depressed, was not free in her movements and did not look well.

114 In cross-examination Ms Dinuzzo said that she had first made a statement to the plaintiff's solicitors in 1998. She was unable to explain how the ages of her children helped her to date the telephone call which she had received from the plaintiff. She did not know the exact date of the telephone call and in effect conceded that the plaintiff or her solicitors might have suggested to her that the call was in 1986.

115 Georgina Morgan gave evidence that she had lived with the plaintiff and Mr Dormer at Kenthurst for four months from February 1986 to early June 1986. During this period the plaintiff was physically fine, she undertook normal household duties, for example cooking, ironing and washing, and went to work every day.

116 Ms Morgan ceased living with the plaintiff in June 1986. About a year later the plaintiff telephoned her "out of the blue". Ms Morgan saw the plaintiff again in Sydney towards the end of 1987. The plaintiff said "that she was in a lot of pain, her back and neck and head were causing pain and she was having a lot of treatment done for her condition". The plaintiff had changed in appearance. She looked "quite haggard and not very well".

117 Subsequently the plaintiff and Ms Morgan spoke on the telephone every few months. The plaintiff said much the same thing, that she was in a lot of pain, that she was trying various treatments and that she was not sleeping well.

118 Ms Morgan came back to live in Sydney in about 1989. She had seen the plaintiff three or four times since 1989. Each time the plaintiff looked unwell, if not worse.

119 There was little cross-examination of Ms Morgan.

120 Natalie Blanch gave evidence that she had worked at Makita as a data entry processor under the supervision of the plaintiff for three months between August 1987 and November 1987. She was then seventeen years old.

121 During this period she noticed that, after the plaintiff had been sitting for a while at her computer, the plaintiff would stand up and stretch her back. The plaintiff told Ms Blanch that she had had a fall down stairs at work. The plaintiff said that she was going to an osteopath.

122 Ms Blanch said that she had used the stairs to move from one floor to another in the building at Gladesville. She said "the brick walls were all cracked and it was very dusty". She said that she herself had almost slipped a few times.

123 For three weeks to a month in October 1987 Ms Blanch had lived in the same house as the plaintiff and Mr Dormer. There was a happy relationship between the plaintiff and Mr Dormer, so far as she could see. Mr Dormer did domestic tasks. The plaintiff did not do much at all. "I only ever saw her feed the animals, water the garden, that was it". The plaintiff had said that she had a lot of trouble doing everyday household tasks.

124 In cross-examination Ms Blanch said that she had first been asked to recall what had happened in 1987, some time in 1999. She said that she had complained to the plaintiff and other female employees about almost slipping on the stairs but had not complained to Mr Firth.

125 The plaintiff relied on expert scientific evidence by Associate Professor D H Morton in order to establish liability. A report by Professor Morton dated 18 December 1995 was admitted into evidence.

126 Professor Morton visited the premises at Gladesville on 11 December 1995, accompanied by the plaintiff. The plaintiff brought with her the shoes she said she had been wearing at the time of the accident, one of which was the shoe identified by her when she gave her evidence.

127 I have read all of Professor Morton's report. Parts of the report are as follows:-

"The usual measure of `slipperiness' is its inverse, the coefficient of friction. This is the sideways force needed to cause an object to slide on a surface..."

"There is a further complication in the circumstances of a person walking. The force needed to keep an object sliding once it has started (the `dynamic' coefficient) may be less and sometimes much less than that needed to start the movement in the first place (the `static' coefficient)...."

"Whilst there are no universally agreed standards for floor friction, it is usually accepted that dynamic friction coefficients below 0.4 are unsafe, whereas above 0.5 they are safe..."

"I understand that the weather was fine and dry at the time and that, so far as Ms Sprowles was aware, there was no contamination or other adventitious material on the surface of the stairs..."

"The stairs are constructed of reinforced cast concrete. The tread surfaces appear to have received what is generally known as a wet steel trowel finish. This involves trowelling the wet partly-set concrete with a smooth steel tool, often with the addition of further dry cement to achieve a hard, dense and very smooth surface..."

"It should be noted also that, as inspected, I found that the stairs carried loose particles of sandy or powdery materials. I have discounted these for the purposes of measurement. However, it is well-established in my experience that on hard smooth surfaces the presence of loose particulate material can create severe slipperiness due to the tendency of the particles to roll under foot. I have investigated many accidents caused by this effect. It is recalled that at the time of the accident it is said that the building structure was cracking. It is reasonable to believe that significant quantities of sandy particulate material from cracking bricks, mortar or concrete could have found its way to the tread surfaces. If this was the case, in my opinion there can be no real doubt that the smooth stair treads would have been very dangerously slippery".

128 Professor Morton performed tests to ascertain the coefficients of friction of various surfaces in relation to the fire stairs. He found the following result for the plaintiff's shoe:-

Static Dynamic

Sole 45 34

Heel 56 53

129 The conclusions stated by Professor Morton in his report included the following:-

"6.3 The tread surfaces are very smooth and are not provided with a non-slip finish throughout, as is required by Ordinance 70. Neither are they fitted with non-skid strips near the edge of the nosings, as required by Ordinance 70 as an alternative provision.

6.4 In the clean, dry condition the treads are adequately slip-resistant for safety, only for footwear of inherently high-grip materials.

6.5 For other common footwear, including the shoes worn by Ms Sprowles, the treads are sufficiently slippery to be dangerous, even when clean and dry and would be very dangerous when wet or if contaminated by loose powdery materials.

6.6 The dangerous condition of the treads could have been avoided easily and at low cost, by the use of a wood-float or cross-brushed finish to the concrete treads or the application of abrasive non-skid strips to the tread noses. The use of both provisions would have been preferable and in my experience would have been the usual practice in the industry at the time.

6.7 The accident to Ms Sprowles was caused by the dangerously slippery condition of the stairs provided for her use, in footwear such as she would reasonably have been expected to wear in the circumstances."

130 In oral evidence in chief Professor Morton said that, of the two coefficients of friction, the dynamic coefficient of friction was the more relevant, because it was a measure of resistance to sliding, once sliding had commenced. "The static (friction) would be overcome by a twisting of the foot and so all that is left is the dynamic friction".

131 Powdery materials of all sorts on a smooth surface would reduce the coefficient of friction. On a stairwell such as this there would be likely to be powdery materials of various sorts, for example mortar, crumbled brick or crumbled cement.

132 In cross-examination Professor Morton confirmed that the plaintiff had informed him at the time of their inspection that, so far as she was aware, there had been no "adventitious material" (which would have included any material falling from the cracks in the walls) at the time of the accident. At the time of Professor Morton's inspection "there was no particularly heavy layer of loose particles". The plaintiff had been with him when those loose particles were "uncovered". "One ought not to over-emphasise the quantities present; there was some present". Professor Morton discounted the presence of loose particles on the stairs at the time of the accident, because "as far as she was aware she did not slip on any contamination" and because "if one starts speculating on the amount of sandy material and what type would have been present, you can get almost any answer you like".

133 With regard to the plaintiff's shoe, Professor Morton said that the heel and the sole (that is the sole apart from the heel) were made of the same material but the coefficients of friction of the heel and the sole were different, because the sole was smoother than the heel. In walking down steps the toe of the shoe goes down first, before the heel. If the plaintiff's shoe had been worn after the accident, the coefficients of friction at the time of the accident could have been different from the results obtained by Professor Morton. Professor Morton had assumed "that the shoe had not been significantly worn since the accident".

134 In further cross-examination Professor Morton agreed that a coefficient of friction is not normally dependent on the pressure exerted on a surface.

135 The only medical evidence adduced by the plaintiff consisted of reports and oral evidence by Dr Andrew Wilson, a consultant psychiatrist.

136 The plaintiff was first seen by Dr Wilson on 21 January 1994 and he had seen her a number of times since. The plaintiff had been referred to Dr Wilson by Professor Wakefield.

137 Dr Wilson's first report was made on 8 May 1995. I have already quoted a part of this report in which Dr Wilson recorded a history that the plaintiff's symptoms had been improving until the sexual harassment had occurred. In his report Dr Wilson said inter alia:-

"On my initial assessment in January 1994, subsequently confirmed by my re-evaluation on 2/5/95, I felt that the most appropriate diagnosis was one of fibromyalgia, which is a well recognised disorder, categorised by a generalised pain syndrome, fatigue and sleep disturbance. This can occur without any clear precipitant but also can develop following physical trauma, such as a fall or other accident and, for many patients, is also significantly worsened by psychological stress of one sort or another. In my opinion, the stress Ms Sprowles suffered as a result of the alleged sexual harassment at work significantly influenced the resultant poor course of her illness, and her illness would seem to have been precipitated by a fall at work in 1986".

138 Dr Wilson said that he could not prescribe anti-depressants because the plaintiff had reacted adversely in the past to anti-depressants. He said that "other treatments suggested involved rehabilitative approaches and stress management". Dr Wilson continued:-

"Based on her current condition, level of symptomatology and resultant disability, it is likely that she will remain significantly functionally impaired in the foreseeable future. Ongoing treatment such as manipulative therapy for her back problems and treatment of a counselling nature may certainly be required as a result of her condition. She is currently not fit for employment, which is clearly a significant change from her capacity to work prior to the commencement of the said sexual harassment on the 6/1/92. Overall, I would be guarded about her prognosis and would feel at this point is unlikely that her symptoms will significantly improve in the foreseeable future with little likelihood of her being able to return to any useful employment".

139 In a report of 1 November 1996, following a review of the plaintiff in October 1996, Dr Wilson said that the plaintiff had not improved since he had last seen her and in many ways she had deteriorated, reporting particularly generalised pain, sleep disturbance, fatigue, muscle spasms, headaches, visual disturbance and "a heightened general arousal" (that is increased sensitivity to pain). Dr Wilson's diagnosis remained that of fibromyalgia. He said:-

"I believe it is extremely unlikely that Ms Sprowles' condition will improve to any great extent".

140 In Dr Wilson's opinion the plaintiff was not fit for any kind of work. In answer to a question "the possibility that such disabilities may be referable to causes other than the said incidents of 30 June 1986 and 10 July 1986 and if so to what?" Dr Wilson responded:-

"The likelihood of other factors being involved in the production of Miss Sprowles' symptoms would appear to be unlikely. Prior to the work accident of 30th June 1986 there was no formal history of psychiatric disorder, nor any history of drug or alcohol abuse or any other psychiatric symptomatology. There was also no history of any significant medical illness prior to this disorder. I therefore do not find that there is any other acceptable explanation for the development of Miss Sprowles' symptoms".

141 In a report of 21 July 1998 Dr Wilson said inter alia:-

"Ms Sprowles remains severely incapacitated by her symptoms. She is not fit for any form of work. Ms Sprowles is also unable to manage basic activities of daily living. She is unable to wash, cook, shop or generally look after herself. These activities are carried out by Ms Sprowles' mother. Should Ms Sprowles' mother not be available to carry out these activities, Ms Sprowles would be unable to care for herself independently. I would estimate that, in order to assist Ms Sprowles carry out these activities of daily living in the absence of her mother, care would be required at approximately two hours per day indefinitely".

* * *

"At this stage I would see Ms Sprowles being permanently disabled. There has been no improvement in her symptoms over the time course I have reviewed her and therefore I do not believe that she is fit for employment in any capacity at present, nor is it likely to be the case on a permanent basis. I believe that her symptoms will continue at their current level, although there may be some mild fluctuation from time to time".

142 In a report of 15 February 1999 Dr Wilson said inter alia:-

"Fibromyalgia is a disorder of unknown etiology causing a circumscribed set of symptoms, namely: muscle pain, joint pain, impaired concentration and memory, sleep disturbance, fatigue and to a varying extent anxiety and depression, irritable bowel symptomatology, paraesthesia, visual disturbance and other somatic complaints...

The signs and symptoms are noted above. This disorder can commence suddenly or gradually and with or without defined physical or psychological stressors. For the majority of sufferers it is long lasting and the prognosis is usually poor. Its usual effect is to significantly impair activities of daily living and function, which has definitely been the case in Ms Sprowles case".

To the best of my knowledge Ms Sprowles did have these signs and symptoms between June 30, 1986 to May 1995.

She did not have these symptoms before June 30, 1986.

Fibromyalgia, whilst not a difficult disorder to diagnose, is poorly recognised and the symptomatology is often either confused with other disorders, ignored or considered not of clinical significance.

It is extremely common that patients who suffer with this condition have difficulty getting the right diagnosis. A typical history both in the literature and in my own experience is that patients often see a significant number of medical practitioners or other health practitioners, prior to the correct diagnosis being made".

143 In oral evidence in chief Dr Wilson said that fibromyalgia had been a specific area of interest for him and that he had conducted research into fibromyalgia for the last ten years.

144 Dr Wilson was cross-examined at some length. He said in cross-examination that fibromyalgia and chronic fatigue syndrome are slightly different but overlap and are of unknown etiology "as a general rule".

145 A small percentage of people who have had glandular fever develop chronic fatigue syndrome but the majority do not. It was possible that, if the plaintiff had had glandular fever in 1989, that could have contributed to her present condition. There may be several factors "along the way" contributing to fibromyalgia. If the plaintiff had had symptoms of fibromyalgia before she had the glandular fever, the glandular fever could not have been "the cause" of the fibromyalgia.

146 Stressful conditions can cause fibromyalgia. Dr Wilson had obtained a history from the plaintiff that her father had died after a long illness, that the plaintiff had been under stress at work and that a relationship she had been in had broken up.

147 According to Dr Wilson's notes, he had been told by the plaintiff that the relationship with her de facto husband had been "difficult" but not that it had been "abusive", in the sense of involving physical violence. If the plaintiff had been occasionally hit by her partner that would be a significant matter. However, it might be splitting hairs to attempt to distinguish between a relationship which was "difficult" and a relationship which was "abusive".

148 Dr Wilson had no record of the termination of the plaintiff's pregnancy in 1990. How stressful that event would have been for her would have depended on the circumstances. The termination of a pregnancy by a woman who had been diagnosed as having endometriosis and who had at least initially welcomed the pregnancy, could have been a significant matter.

149 Dr Wilson said:-

"I think typically people with fibromyalgia, chronic fatigue syndrome, it's highly unusual to see somebody where there is absolutely one categorical discrete cause; it's a matter of attribution to what factors various people have in their lives, including physical or psychological events which can contribute".

150 It would be unusual, however, if a person in histories given by her did not refer to a fall (if a fall was a causative factor) but to a history of domestic violence.

151 It was put to Dr Wilson that the plaintiff had claimed "a constellation of quite bizarre symptoms". Dr Wilson replied:-

"..if one examines and takes a history from 500 patients with this type of disorder you will find those types of symptoms are present in 20 to 30 per cent of them with variable frequency".

152 These symptoms would include visual disturbance and a sensation of choking.

153 It would be "uncommon" but not "unusual" for a person with chronic fatigue syndrome (or fibromyalgia) to work on for six years, after contracting the condition.

154 Dr Wilson accepted that his views depended on accepting the plaintiff as a witness of truth about her symptoms. He had received a history that the plaintiff had had symptoms since 1986 and that in 1993 her symptoms had become chronic and unremitting. If the plaintiff is in fact able to do things which she claimed to Dr Wilson she could not do, then Dr Wilson would doubt the level of the symptoms claimed and ultimately would doubt the diagnosis of fibromyalgia itself.

155 In re-examination Dr Wilson said that the level of disability experienced by a person with fibromyalgia varies from time to time. With regard to the plaintiff continuing to work, Dr Wilson said:-

"...often people focus on one aspect of their life that remains highly functional and put all their eggs in one basket. People can function at work but other aspects of life they are actually functioning very poorly. That's not an unusual situation and I think that could well be the case here"

156 Dr Wilson was asked:-

"If she endured fibromyalgia between 1986 and 1992, would she have been more or less susceptible to being able to endure the sexual harassment she suffered at work in 1992?"

Dr Wilson responded:-

"It's a very difficult question... so if someone is burdened by significant stress or being ill, those things could punch above their weight..."

The Defendant's Witnesses

157 The only witnesses who gave oral evidence for the defendant were Mr Firth and Dr Millons.

158 In his evidence in chief Mr Firth said that he had been the electronic data processing manager for Makita. In 1986 there had been four people in the division. These included the plaintiff, who was the second in charge of the division.

159 The plaintiff had told him some time in 1986 that she had had a fall on the stairs coming to work. Mr Firth had himself used the stairs regularly. He had never found the stairs slippery.

160 Mr Firth had become aware that the plaintiff was attending an osteopath. According to Mr Firth, the plaintiff had said "it was something to do with a fall from a horse".

161 Towards the end of 1991 the plaintiff had told him that she was going to make a claim.

162 In 1992 there had been friction between the plaintiff and another employee. Between 1986 and 1992 the plaintiff did her work in the normal manner.

163 In cross-examination Mr Firth said that the plaintiff had been a good worker and a competent supervisor. When asked whether the plaintiff could have done Mr Firth's job as electronic data processing manager after his retirement (Mr Firth retired in 1995), Mr Firth replied that "she was capable of doing the job, (but) not capable of handling people".

164 Mr Firth said that the concrete stairs merely accessed the car park and that there were internal stairs for persons moving within the building.

165 Mr Firth confirmed that acrimony had developed between the plaintiff and Mr Weekes and that the relationship between the plaintiff and Mr Weekes had deteriorated during 1992. Mr Weekes and the plaintiff had sat at two desks outside Mr Firth's office within view of Mr Firth.

166 Dr Millons is a specialist in orthopaedics. He saw the plaintiff for medico/legal purposes on 13 November 1996 and furnished a report dated 19 November 1996.

167 In his report Dr Millons expressed inter alia the following opinions:-

"I can really find little convincing evidence to substantiate Miss Sprowles' complaints of continuing neck, back, upper and lower limb disability, 10 years after a fall down some stairs. She admits she has difficulty explaining her symptoms, so do I.

She could have sustained some contusion of her back when she fell down the stairs but one would have expected symptoms to have settled within a few weeks at most. Indeed, she does not appear to have lost any time from work over the ensuing years nor sought any medical attention. She relied on chiropractic and osteopathic treatment in the early days.

* * *

"Somewhere along the way she was diagnosed with chronic fatigue syndrome, a condition which has its supporters and doubters. She claims to have been getting worse since that condition was diagnosed in September 1993.

* * *

"Just now her neck exhibits a reasonably good range of movements. Some minimal stiffness there might reflect the relative period of inactivity. Her thoraco-lumbar spine exhibits a good range of movements. There is no convincing evidence of any frank nerve root irritation or neurological deficit in either upper limb and all in all I do not believe her problems can be explained on orthopaedic grounds and I cannot really believe they relate either to the fall down the stairs in June 1986 or to the nature and conditions of her work thereafter. If she does have some vague rheumatological problems, then they would not appear to be work related".

* * *

Orthopaedically there should be no reason to put any restriction on her. Her perception of invalidity on whatever grounds would appear to be considerably greater than real and under those circumstances an early return to the work-force in any capacity would seem unlikely".

168 In oral evidence Dr Millons said about fibromyalgia and chronic fatigue syndrome:-

"I suppose there is a connection between the two, I am not sure that either is founded in any definite facts. Often they are used for someone who has widespread pain but you can't find any cause. Chronic fatigue syndrome again is another condition which has its supporters and doubters".

A little later in his evidence Dr Millons said:-

"I suppose being an orthopaedic surgeon and a surgeon I am more of a scientist and I like to see definite evidence of incapacity, that I can relate to the condition".

169 In cross-examination Dr Millons said that he did not believe that either chronic fatigue syndrome or fibromyalgia really exist. He was aware that work had been done in the United States on fibromyalgia by rheumatologists and psychiatrists. Dr Millons had not made any study of this research. He accepted that "you (that is Dr Millons) don't know where science is up to, because you have made no study of it". He also accepted that "there is a respected body of medical opinion that asserts that fibromyalgia is a real condition". Dr Millons would not defer to that body of opinion. As an orthopaedic surgeon he could find nothing within his discipline which would explain the plaintiff's problems.

170 The duration of the plaintiff's complaints (thirteen years) and her continuing to work between 1986 and 1992 would militate against the plaintiff being a malinger.

171 The plaintiff's complaints of pain might be psychiatrically based. He said "I accept she has pain. I find no orthopaedic basis for complaints of pain".

172 Dr Millons considered that the amount of treatment the plaintiff had received had been extraordinary and self-generating.

173 A large number of reports by paramedicals who had treated the plaintiff were tendered by the defendant. I have already referred to parts of those reports in which histories given by the plaintiff were recorded.

174 The defendant also tendered a number of reports by doctors. Some of these doctors had been treating specialists to whom the plaintiff had been referred.

175 Dr Podgorski, rheumatologist, saw the plaintiff in about August 1993. His "impression" was:-

"She certainly has many complaints and very few physical abnormalities present on examination... if these (certain tests) prove unremarkable, it is most likely she has a variant of fibromyalgia syndrome. A return to aerobic fitness is essential... it may be worth exploring relaxation therapy, psychological factors in the perpetuation of her pain".

176 Dr Napoli, gastroenterologist, who saw the plaintiff in July 1994 concluded:-

"In summary, Vicki may definitely have some problems with peptic ulceration and reflux oesophagitis. She is very resistant to the idea that smoking and coffee intake are associated with this. I tried to introduce the idea that perhaps a lot of her symptoms are made significantly worse by the stresses that she is currently under. She seemed to think that all of her problems were organic and did not feel that stress was a significant factor. I plan to perform a gastroscopy on Vicki to assess the state of her upper gastrointestinal tract but I feel that even if we find significant pathology and treat it, Vicki requires a great deal more help at the psychological level".

177 Dr Stephen, a specialist in orthopaedics, who saw the plaintiff in July 1995 concluded:-

"It is quite evident that most of Miss Sprowles's symptoms are flagrantly neurotic. She really does require the help of a psychiatrist. When I broached this, as gently as I could, she denied any non-organic element with considerable vigour".

178 Dr Fearnside, a neurological surgeon who saw the plaintiff in December 1995, thought that the plaintiff had "multiple psychological problems underlying the gross somatisation of what appears to be a mixture of anxiety and depression".

179 Dr Terenty, a physician who saw the plaintiff for medico/legal purposes on behalf of the defendant in November 1996, considered that some of the plaintiff's symptoms were bizarre, that she had a fixation regarding the organic basis of her symptomatology, that Dr Terenty could find no evidence of any abnormality that could be connected to the accident on 30 June 1986 and that the plaintiff had a significant psychiatric disorder.

180 In 1997 the plaintiff was seen for medico/legal purposes by Dr John Shand, psychiatrist. Dr Shand considered that "if the history can be taken at face value, the diagnosis is either somatization disorder or undifferentiated somatoform disorder".

181 In a later report Dr Shand said that he was in full agreement with the view that "this lady has a significant psychiatric disorder". In this report Dr Shand referred to the various histories which the plaintiff had given. Dr Shand concluded:-

"There appears to be support for a diagnosis of significant psychiatric disorder, if the history is accepted at face value. This does not exclude the possibility of consciously motivated complaints".

182 Dr Shand later conducted a physical examination of the plaintiff. He found that some of the results "contrasted significantly with her ability (when not being actually tested) to walk normally and generally move without restriction or signs of discomfort". Most of the plaintiff's complaints could have no connection in a physical sense with the accident on 30 June 1986.

Credibility of the Witnesses

183 The extent to which the plaintiff's evidence should be accepted is obviously crucial to a determination of this case. There was no witness, other than the plaintiff, to the alleged fall on 30 June 1986. Professor Morton's conclusions were based on information supplied by the plaintiff that the shoes she produced to him were the shoes she had been wearing at the time of the accident and that she had not worn the shoes much after the accident. There is little or no orthopaedic evidence to support the plaintiff's complaints of the symptoms and disabilities she says she has experienced. There is no evidence from Louise Adam, who was the first person to treat the plaintiff after the alleged accident, except a letter saying that Ms Adam's notes about the plaintiff have been lost. The only medical evidence adduced on behalf of the plaintiff is the evidence of Dr Wilson, who first saw the plaintiff in January 1994, more than seven years after the accident. Dr Wilson accepted that the views he had formed depended on his accepting the plaintiff as a witness of truth about her symptoms. If the plaintiff is in fact able to do things which she claimed to Dr Wilson she could not do, then Dr Wilson would have to doubt the level of symptoms claimed by the plaintiff and, ultimately, even his diagnosis of fibromyalgia. There are other reasons as well why the plaintiff's evidence is important.

184 A strong attack was mounted by counsel for the defendant on the credibility of the plaintiff. Grounds for attacking the plaintiff's credibility include the following.

185 The plaintiff admitted that she had lied in part of her evidence. She initially denied that there had been any intentional acts of violence by Mr Dormer during their relationship. The breaking of her nose by Mr Dormer had been an accident. Later in the plaintiff's evidence in chief she admitted that there had been incidents of violence, both before and after the accident, but "only a couple". In cross-examination the plaintiff admitted that Mr Dormer had struck her ten to twelve times during the relationship.

186 The plaintiff admitted that she had told lies out of court, for example, in complaining in 1984 to a counsellor at the Pre-Term Foundation that she had abdominal pain.

187 The plaintiff gave some evidence which was inconsistent with previous out of court statements she had made. For example, she said in her evidence that her pregnancy had been terminated in 1990 because she was having problems with her breathing, whereas she had told a counsellor in 1990 that she felt she could not cope emotionally and financially with raising a child on her own, after her relationship with her partner had ended. The plaintiff had not mentioned to the counsellor any problems with her breathing. Furthermore, the plaintiff had said in her affidavit of 20 December 1995 that her problems with her breathing had started in August 1993. The plaintiff said in her evidence that there was grit on the stairs at the time of the accident, whereas she had informed Professor Morton at the time of their inspection on 11 December 1995 that, so far as she was aware, there was "no contamination or other adventitious material on the surface of the stairs". She said in her evidence that she was getting worse in 1991 and 1992, which was contrary to what she had said in her affidavit of 20 December 1995 and what she had told Dr Wilson.

188 It was submitted by counsel for the defendant that the plaintiff had exaggerated in her evidence. A notable example was that the plaintiff had exaggerated the difficulty she claimed she had in raising her right arm. In one of the videos the plaintiff was shown as extending her right arm vertically above and behind her head and maintaining that position for many seconds, without any apparent difficulty or any apparent discomfort. Dr Shand said in his last report that some of the results he obtained on his physical examination of the plaintiff contrasted significantly with her ability, when not actually being tested but while still being observed by Dr Shand, to move without restriction or signs of discomfort.

189 It was also submitted that the plaintiff had attempted to mould parts of the evidence in such a way as to advance her case. An example was her evidence about there having been grit on the stairs at the time of the accident. It was submitted that the plaintiff had given this evidence, because she had been asked about the subject by Professor Morton at the time of the inspection and had come to appreciate that evidence from her that there was grit on the stairs would assist her case. Another example was her letter written to the Pre-Term Foundation in August 1996, seeking, six years after her pregnancy had been terminated, to supply an ex post facto reason for the termination which would assist her case.

190 Counsel for the defendant pointed to the histories given by the plaintiff to some of her early carers, in which she had given a history of some incident or incidents other than, or as well as, the fall. The plaintiff had given Julie Chenery a history of having been the victim of domestic violence. The first item of history recorded by Mr Goodrich in his report was that the plaintiff had been pushed down on the top of her head. Louise Weavers recorded a history of a car accident in November 1988, which the plaintiff in her evidence denied had ever happened. It was submitted that the plaintiff's attempts to explain why these histories had been recorded were unconvincing. Even Mr Firth said that the plaintiff had said to him that she had had a fall from a horse.

191 It was submitted that the incident of the pushing down on the plaintiff's head was particularly important. It was the first item of history recorded by Mr Goodrich in his report. Moreover, Mr Goodrich recorded that he had been told that it had happened two weeks before the "fall". When the plaintiff initially gave evidence about this incident of Mr Dormer pushing down on her head, she said that it had happened about two weeks before the accident on 30 June 1986. Then she changed her evidence to saying that it had happened two weeks before her birthday on 14 October 1985.

192 It was also submitted that the plaintiff had fixed ideas and had closed her mind about her medical condition and what had caused it. Everything, even catching glandular fever in 1989, was attributed by the plaintiff to fibromyalgia resulting from her fall. Any medical opinion or any medical advice which did not fit in with her fixed ideas about her condition and its cause was disregarded by her.

193 It is clear that the plaintiff did, in one part of her evidence, lie and that she has lied out of court. I accept that some of her evidence was inconsistent with previous out of court statements she had made and I reject those parts of her evidence. I also accept that the plaintiff exaggerated in parts of her evidence, that she made some attempts to mould the evidence in such a way as to advance her case and that the plaintiff has fixed ideas about her condition and what caused it.

194 I give weight to the submissions made concerning the histories given by the plaintiff. However, I note, as against the points made by counsel for the defendant, that Mr Goodrich did refer in his report to "a fall" as being part of the history given to him; that Louise Weavers said quite explicitly in her report that, apart from the whiplash injury for which Ms Weavers was treating the plaintiff, the plaintiff said she had low back and left leg pain for which she was being treated by other practitioners, being an osteopath and a chiropractor; and that Anne Petrie said in her report "the history given was onset of symptoms occurred after falling at work on 30 June 1986". I do not give any weight to Mr Firth's rather vague evidence that the plaintiff had said that her condition "was something to do with a fall from a horse". The only evidence of a fall from a horse is of a fall in about 1971. I accept generally that it is likely that the plaintiff was asked by those from whom she sought treatment whether she could remember any incident which could have contributed to her condition.

195 I have concluded that the incident in which Mr Dormer pressed down on the plaintiff's head did involve more physical force than the plaintiff conceded in her evidence.

196 Despite these well founded criticisms of the plaintiff's credibility, I have concluded that she was not generally malingering and I have also concluded that I should accept most of her evidence, even though rejecting some parts and discounting some other parts to some extent as being exaggerated. I have explicitly referred in this part of my judgment to most parts of the plaintiff's evidence which I have decided I should reject.

197 Objective matters which lend support to the general tenor of the plaintiff's evidence include that she had worked virtually continuously from about 1971 up to June 1986; that she was clearly ambitious to succeed in her career; that prior to 30 June 1986 she had made few if any complaints and had sought very little medical or paramedical attention; that commencing from 10 July 1986 the plaintiff constantly over many years and at considerable expense to herself sought paramedical attention; that the plaintiff continued working from 1986 to 1992, although constantly seeking and receiving treatment; that the plaintiff made a formal claim for compensation in late 1991, before Mr Weekes commenced employment with Makita and hence before the sexual harassment started.

198 The plaintiff's evidence is corroborated in a number of respects by the evidence of her mother, Lois Dinuzzo, Georgina Morgan and Natalie Blanch. I generally accept the evidence of those witnesses, except that I do not accept that Ms Dinuzzo had any real recollection that the telephone call she received from the plaintiff was "towards the end of 1986" and I do not accept Ms Blanch's evidence about the state of the concrete stairs in the building at Gladesville. Her evidence that she had used the concrete stairs to go from one floor to another in the building seems to be inconsistent with the evidence of Mr Firth, whose recollection would be likely to be accurate, that there were internal stairs for persons moving from one floor to another within the building. Of these witnesses I was particularly impressed by Georgina Morgan, who, apart from her generally persuasive demeanour, had the advantage of having lived with the plaintiff and Mr Dormer from February 1986 to early June 1986, that is until just before the accident.

199 I will deal with the extent to which I accept the evidence of the expert witnesses in later parts of this judgment.

Liability

200 Counsel for the defendant did not dispute that on 30 June 1986 the plaintiff had fallen on the stairs leading from the car park on the roof of the building at Gladesville. Mr Firth said in his evidence that the plaintiff had told him some time in 1986 that she had had a fall on the stairs.

201 It was also not disputed by counsel for the defendant that the defendant owed a duty to the plaintiff to take reasonable care to provide a safe means of access from the car park to the office where the plaintiff worked. Nor was it disputed that, if the plaintiff could establish that the stairs were slippery and that she had fallen because of the slipperiness of the stairs, she was entitled to a verdict. It was conceded that, if the stairs were slippery, there was a reasonably foreseeable risk of injury to the defendant's employees including the plaintiff and there were reasonably practical steps the defendant could have taken which would have obviated the risk, which the defendant had not taken.

202 I am prepared to accept the plaintiff's evidence that the shoe which she produced to Professor Morton and which Professor Morton tested and which was later admitted as an exhibit, was one of the shoes she had been wearing at the time of the accident. I am also prepared to accept the plaintiff's evidence that she had not worn those shoes much after the accident.

203 If these matters are accepted, then I consider that Professor Morton's conclusions should be accepted. Professor Morton was not really shaken in cross-examination (except at one stage when he fleetingly seemed to suggest that a coefficient of friction could depend on the pressure exerted on a surface) and there was no competing expert for the defendant. Professor Morton concluded that the surfaces of the treads of the stairs were very smooth, were not provided with a non-slip finish throughout or with non-skid strips near the edge of the nosings and for common footwear, including shoes of the type worn by the plaintiff, were sufficiently slippery to be dangerous, even when the stairs were clean and dry.

204 I have reached the conclusion that the stairs were slippery, without resort to the evidence about there having been loose grit on the stairs, which, in Professor Morton's opinion, would, had it been present, have increased the slipperiness of the stairs. I would not accept the evidence of either the plaintiff or Ms Blanch that they observed loose grit on the stairs. However, it does seem to me that, more probably than not, there would have been, by reason of the nature of the walls of the stairway, some grit on the stairs, which would have increased their slipperiness, even though the degree by which the slipperiness was increased cannot be quantified.

205 The remaining question on liability is whether the plaintiff slipped because of the slipperiness of the tread of a step on the stairs or simply lost her footing. In her evidence the plaintiff merely said that her foot went out from underneath her. I find on the balance of probabilities that the plaintiff fell because her foot slipped owing to the slippery surface of the stairs. If a person is going down stairs and the stairs are slippery and the person loses her footing, then it is likely that the slipperiness of the stairs contributed to her losing her footing.

206 I find a verdict for the plaintiff. There is, however, the further question whether the damages to which the plaintiff is entitled are limited to damages for some soft tissue injuries which would have resolved within a short time after the fall or extend to damages for a serious and continuing medical condition which the plaintiff sustained as a consequence of the fall.

The Plaintiff's Medical Condition

207 I have already expressed the conclusion that the plaintiff was not generally malingering and that I should accept most of her evidence, while discounting some of it to some extent as being exaggerated. Without accepting all of the plaintiff's evidence about her symptoms and disabilities or the level of them, I accept that since the fall the plaintiff has had, among other symptoms, generalised pain, increased sensitivity to pain, fatigue, sleep disturbance, headaches, visual disturbance, muscle spasms, paraesthesia, anxiety and depression and difficulty in remembering and concentrating.

208 I accept the diagnosis of fibromyalgia made by Dr Wilson. Dr Wilson who has conducted research into fibromyalgia is well qualified to give evidence on the subject.

209 The "impression" formed by Dr Podgorski, a rheumatologist in August 1993, that is, before the plaintiff had seen Dr Wilson, was that "it is most likely she has a variant of fibromyalgia syndrome".

210 Dr Millons, an orthopaedic specialist relied on by the defendant, was sceptical about fibromyalgia. However, he had not made any study of fibromyalgia and his evidence was really to the effect that, as an orthopaedic specialist, he could find no orthopaedic basis for the plaintiff's complaints of pain and is sceptical of complaints of pain if he can find no physical basis for them.

211 I have accepted that the plaintiff suffers from fibromyalgia. However, I consider that some of the plaintiff's evidence about her symptoms and disabilities is exaggerated and I also consider that there is a quite substantial frankly psychiatric component in her condition.

212 If the plaintiff is not suffering from fibromyalgia, then I would hold that she has, as Dr Shand considered (if the history was accepted and I have found that the history should be largely accepted), "a significant psychiatric disorder, being either somatization disorder or undifferentiated somatoform disorder".

213 Whether the plaintiff's condition is fibromyalgia or the psychiatric disorder diagnosed by Dr Shand, it is unlikely that it will improve to any great extent.

Causation

214 I turn to the question of whether the plaintiff's condition was legally caused by the fall on 30 June 1986, which was itself, as I have found, caused by the defendant's breach of duty.

215 I was referred by counsel for the plaintiff to a number of authorities on causation.

216 In Medlin v State Government Insurance Commission [1995] HCA 5; (1994-1995) 182 CLR 1 Deane J, Dawson J, Toohey J and Gaudron J said in their joint judgment at pp6 and 7:-

"For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the `but for' text, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. It will be seen that, on the plaintiff's evidence, the present was such a case.

Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as `pre-eminent' or `subsidiary'. Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's commonsense test of causation. This can be most obviously so in a case where a `subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a `pre-eminent' cause".

217 In Faulkner v Keffalinos (1971) 45 ALJR 80 at 85 Windeyer J said in a passage which has often been referred to subsequently:-

"There is I think a critical distinction between a supervening happening that prevents a particular damage occurring as a result of the tort and a supervening happening that causes the harm caused by the tort to have added gravity. In the first class of case the supervening event diminishes the damages which flow from the tort: in the second class it merely adds to them, so that the tortfeasor responsible for the first accident remains liable for the harm he caused, which is not merged in the combined result of his wrongdoing and the later event".

218 I was also referred to the decision of the Full Court of the Supreme Court of Western Australia in State Government Insurance Commission v Oakley (1990) Aust.Tort Reports 81-003 in which Malcolm CJ said at 67,577:-

"In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:-

(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.

Authority for the first two propositions may be found in Fishlock v Plummer (1950) SASR 176 per Mayo J at p181; Porter v Tisco Pty Ltd (1964) QWN 14; Weiland v Cyril Lord Carpets Pty Ltd (1969) 3All ER 1006; Pyne v Wilkenfeld (1981) 26 SASR 441. The second proposition covers what have been called the `increased vulnerability' cases: Lunz, Assessment of Damages for

`...an accident arising from an independent cause which increases the damage caused by the first accident but does not arise out of it'.

In such a case the plaintiff does not recover the full damages resulting from the second accident, but only those extra consequences of the second injury due to the existence of the first injury".

219 In my opinion, I should hold that the plaintiff has established a causal connection between the fall, and hence the breach of duty by the defendant, and her fibromyalgia or psychiatric disorder.

220 This conclusion is supported by the evidence of Dr Wilson. Dr Wilson gave evidence that fibromyalgia can commence with, or without, defined physical or psychological stressors. However, although fibromyalgia can occur without any clear precipitant, it can develop following physical trauma, such as a fall. It would be unusual for there to be a single cause of fibromyalgia. I consider that Dr Wilson should be taken as having accepted that it was likely that in the present case a number of factors had contributed to the plaintiff's condition. However, in Dr Wilson's opinion, the plaintiff's illness was precipitated, or caused, by the fall at work and he gave reasons for reaching this opinion which I have already quoted or referred to.

221 A reason relied on by counsel for the plaintiff, and Dr Wilson, as establishing a causal link between the fall and the plaintiff's condition was that from 10 July 1986, that is from within a few days of the fall, the plaintiff, who had previously sought medical or paramedical attention only rarely, sought paramedical attention frequently and unremittingly. However, counsel for the defendant pointed out that the plaintiff did not seek attention after 30 June 1986 until 10 July 1986 and that in the meantime she had been injured in the incident which occurred on 10 July. Counsel for the defendant pointed out that there was no expert medical evidence linking the likely consequences of a fall such as the plaintiff had had on 30 June 1986 with an inability to straighten up after bending such as the plaintiff had experienced on 10 July 1986.

222 However, I accept the plaintiff's evidence that the incident on 10 July 1986 of itself was very minor; the plaintiff was unable to straighten up after bending down to put paper in a printer. I also accept the plaintiff's evidence that the symptoms she felt after the incident on 10 July 1986 were in parts of her body where she had been feeling pain since the fall on 30 June. I accept that the two incidents on 30 June and 10 July were linked, because of their close proximity in time, the minor nature of the incident on 10 July standing by itself and because of the plaintiff's evidence, which I accept, about the continuation of her symptoms between 30 June and 10 July and after 10 July.

223 If the plaintiff had not already been injured on 30 June 1986, the incident on 10 July 1986 of itself would probably not have caused any injury to her. The incident on 10 July 1986 was a supervening happening that caused the harm caused by the tort to have added gravity (Faulkner v Keffalinos). All of the damage sustained on 10 July was additional damage resulting from the aggravation of the earlier injury, thus falling within the second class described by Malcolm CJ in Oakley.

224 A finding of a causal connection between the fall, and hence the defendant's breach of duty, and the plaintiff's condition is strongly supported, as Dr Wilson observed, by the circumstance that the plaintiff was in good health before 30 June 1986 and after 30 June 1986 was in bad health. Such a finding is supported by the plaintiff's evidence, my finding that the incident on 10 July 1986 was of itself minor, the evidence of the plaintiff not seeking treatment before 30 June 1986 but seeking treatment continually and at considerable cost after 30 June 1986 and by the evidence of the plaintiff's women friends and especially Georgina Morgan who lived with the plaintiff for some months shortly before the accident.

225 I have taken into account the evidence about Mr Dormer pushing down on the plaintiff's head but I have concluded that this incident would probably have been a less traumatic experience for the plaintiff than losing her footing and falling down six stairs out of control, striking a landing with part of her body and hitting her head on the railing.

226 In the present case it was accepted by counsel for the plaintiff, and I would find, that there have probably been a number of factors contributing to the plaintiff's present condition. These factors could include the plaintiff's glandular fever in 1989, the termination of her pregnancy in 1990, the end of the relationship with her de facto husband which had lasted ten years, the sexual harassment to which she was subjected in 1992 and the loss of her job and career with Makita.

227 That there have been other causal factors for which the defendant is not responsible which have contributed to the gravity of the plaintiff's condition does not excuse the defendant from liability for her condition.

228 In any event, a number of these other factors did not occur, until after the plaintiff had complained of her symptoms and had given a history relating to the fall. In 1989 the plaintiff had given Anne Petrie a history that the onset of symptoms had occurred after falling at work on 30 June 1986. This was before the termination of the plaintiff's pregnancy and before the ending of the relationship with her de facto husband. The plaintiff made a formal claim for compensation in late 1991, before Mr Weekes commenced to be employed by Makita and hence before the sexual harassment started.

229 Supervening events such as the termination of the plaintiff's pregnancy, the ending of her relationship with Mr Dormer, the sexual harassment and the loss of her job and career with Makita were happenings that caused the harm caused by the tort to have added gravity, that is were happenings falling within the second class in the distinction drawn by Windeyer J in Faulkner v Keffalinos and within the second class of case described by Malcolm CJ in Oakley. If it is necessary so to find, I would find that all of these happenings were reasonably foreseeable. If the plaintiff had not already been vulnerable by reason of her fibromyalgia or psychiatric condition, then it is likely that she would have been able to cope with the sexual harassment by Mr Weekes. As it was, the stress from the sexual harassment made her condition worse.

230 I consider that my conclusion on causation derive some support from the decision of the majority of the Court of Appeal in Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501. The accident on 30 June 1986 was a legal cause of the plaintiff's condition because it materially contributed in fact to the onset and continuation of the condition.

Heads of Damages

231 Counsel for the plaintiff prepared a schedule of heads of damages claimed, including the amount claimed under each head. The heads of damages claimed were:-

1. General Damages

2. Interest on Past General Damages

3. Past Economic Loss

4. Interest on Past Economic Loss

5. Future Economic Loss

6. Loss of Superannuation

7. Loss of Long Service Leave

8. Past Domestic Assistance

9. Interest on Past Domestic Assistance

10. Future Domestic Assistance

11. Past Medical Treatment and Expenses

12. Future Medical Treatment and Expenses.

232 The claims for items 3 to 7 were supported by two reports of Furzer Crestani Services dated 31 August 1998 and 29 November 1999. The claims for items 8 to 11 were supported by a report from Dial-an-Angel of 18 August 1998 and two reports by Deborah Hammond, occupational therapist.

233 At the hearing there was very little discussion of the schedule prepared by counsel for the plaintiff. Indeed, the schedule was not the subject of any direct submissions, oral or written, by counsel for the defendant. In the circumstances, I do not consider that I should attempt to deal fully with all of the claims in this judgment. I will make certain findings, which may be sufficient to resolve any real issues between the parties. If not, there will have to be further argument and I will have to give a further judgment.

Item 1 - General Damages

234 The range of damages suggested by counsel for the plaintiff was $80,000 to $120,000. I consider that, in the light of the findings I have made elsewhere in this judgment, a figure at the bottom of that range is appropriate. I award $80,000.

Item 2 - Interest on Past General Damages

235 I accept the submission by counsel for the plaintiff that, for the purpose of the calculation of interest on past general damages, half of the general damages should be allocated to the past.

Items 3-7

These items are related.

236 The calculations by Furzer Crestani of the amount of damages which should be awarded for past economic loss and the amount of damages which should be awarded for future economic loss (adopting in their second report the date 30 November 1999 as being the date of the hearing and hence marking the division between past and future loss) depended on a number of assumptions including:-

(i) If the plaintiff had not ceased to be employed by Makita, her income would have increased to $44,000 a year, as from 1 April 1993.

(ii) As from 1 July 1995 the plaintiff would have become the electronic data processing manager of Makita, on the retirement of Mr Firth. Alternatively, if the plaintiff had not been appointed electronic data processing manager of Makita, she would have obtained alternative employment elsewhere at an equivalent salary.

(iii) The plaintiff would have continued working until she attained the age of sixty-five.

(iv) As a result of the accident the plaintiff has no residual earning capacity.

237 Furzer Crestani prepared two scenarios for future loss of earning capacity, namely scenario 1 which was based on the plaintiff continuing as electronic data processing manager of Makita at a gross annual wage of $59,190 and scenario 2 based on the plaintiff obtaining employment as a computer programmer or an electronic data processing manager at a gross annual wage of $70,000.

238 In the absence of any challenge by the defendant, I would accept assumptions (i) and (iii). The plaintiff gave evidence, which was not challenged, that she intended working until she was sixty-five.

239 Assumption (ii) is more controversial. Mr Firth gave evidence that, in his opinion, while the plaintiff was capable of doing Mr Firth's job (technically), she was not capable of handling people. However, I consider that assumption (ii) should be accepted. Mr Firth agreed that the plaintiff had been a good worker and a competent supervisor. She was already second in charge of the electronic data processing division. Alternatively, I consider it likely that, if the plaintiff had been passed over for the position of electronic data processing manager on Mr Firth's retirement, she would have obtained employment elsewhere at an equivalent income.

240 Assumption (iv) made by Furzer Crestani was that the plaintiff had no residual earning capacity. This assumption is supported by evidence from the plaintiff and evidence from Dr Wilson. However, I do not consider that the plaintiff should be regarded as having no residual earning capacity at all. She has skills and experience as a computer operator and a programmer. I consider that in her evidence she exaggerated some of her alleged disabilities which would impinge on her capacity to work, including her alleged difficulty in using her right hand and arm and her alleged inability to sit for long without experiencing discomfort. In expressing his opinion about the plaintiff's capacity to work Dr Wilson accepted the plaintiff's complaints about her symptoms and disabilities. I consider that there is a real chance of the plaintiff obtaining some employment, even if only part-time or to be performed at her home.

241 It is difficult to assess what allowance should be made for the plaintiff's residual earning capacity. In my opinion, the discount for contingencies in assessing damages for future loss of earning capacity should be increased from the conventional 15 percent to 331/3 per cent to allow for the plaintiff having some residual earning capacity.

242 Of the two scenarios in Furzer Crestani's report, scenario 1 should be adopted. The plaintiff's evidence was that she wanted to obtain Mr Firth's position.

243 The claims for loss of superannuation and loss of long service leave may have to be modified to take into account my findings about the plaintiff's residual earning capacity.

Items 8, 9 10 and 11

These items are related

244 I have noted earlier that damages to be awarded for past assistance and for future assistance and interest on the value of past assistance are not subject to the restrictions under s151K and s151M of the Workers Compensation Act.

245 I accept that since she returned to live at her mother's home in October 1993 the plaintiff has reasonably required assistance and that she will reasonably require assistance for the rest of her life.

246 Various estimates were given in the evidence about the number of hours of assistance which have been required and which will be required by the plaintiff. Estimates were given by the plaintiff, the plaintiff's mother and Dr Wilson and estimates were given in the reports by Dial-an-Angel and Deborah Hammond. The report by Carroll and Ranson is simply a calculation of the cost of assistance, based on assumptions furnished by others.

247 I reject as exaggerated an estimate given by the plaintiff that her mother has spent four hours a day looking after her, ever since October 1993.

248 On the basis of information supplied by the plaintiff's mother, Deborah Hammond estimated that the additional workload performed by Mrs Sprowles to care for the plaintiff has been three hours per week.

249 Dr Wilson estimated that in order to assist the plaintiff carry out basic activities of daily living in the absence of her mother, care would be required at the rate of approximately two hours per day indefinitely.

250 Dial-an-Angel made certain estimates of the number of hours of assistance required. These estimates were based on the general experience of Dial-an-Angel and on a full acceptance of information to the effect that the plaintiff was unable to perform domestic, gardening and handyman tasks and was unable to manage the basic activities of daily living. I consider that this information overstates the true position.

251 I consider that I should give weight to the opinions of Deborah Hammond, who visited the plaintiff at her mother's home and who completed an occupational therapy assessment of the plaintiff. Ms Hammond considered that the plaintiff would be able to resume doing most of her shopping. It would also appear from Ms Hammond's reports that she considered that the plaintiff, by purchasing and using certain household appliances and by modifying her work methods, would be able to resume meal preparation. Ms Hammond envisaged that the plaintiff would be able to resume light home care tasks.

252 I would like to hear further submissions relating to these heads of damages before I determine what amount of damages should be awarded.

Item 11

253 A claim for $19,277.06 was arithmetically agreed as being the amount of past medical treatment and expenses and I would allow this amount.

Item 12

254 I would allow the claims for the future cost of an osteopath (one consultation per week), the future cost of medical consultations and for the amounts supported by Deborah Hammond's report. The claim for travelling expenses was not pressed.

Conclusion

255 I have found a verdict for the plaintiff. If the parties are unable to agree in respect of any head of damages what amount should, in accordance with this judgment, be awarded, the matter will have to be relisted before me by arrangement through my associate.

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LAST UPDATED: 22/12/1999