WILLIAMSON -v- CATHOLIC HOMES INC. [2009] WADC 81 (29 May 2009)

Last Updated: 24 June 2009

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : WILLIAMSON -v- CATHOLIC HOMES INC. [2009] WADC 81

CORAM : MAZZA DCJ

HEARD : 19-21, 24-28 NOVEMBER, 2 DECEMBER 2008

DELIVERED : 29 MAY 2009

FILE NO/S : CIV 292 of 2006

BETWEEN : ANTOINETTE MARIE WILLIAMSON

Plaintiff

AND

CATHOLIC HOMES INC.

Defendant

Catchwords:
Tort- Personal injury - Work accident - Plaintiff allegedly injured by a door closing on to her wrist - Whether injury occurred - Whether defendant was negligent - Provisional assessment of damages - Turns on own facts

Legislation:
Nil

Result:
Claim dismissed

Representation:

Counsel:

Plaintiff : Mr T H Offer

Defendant : Mr D R Clyne

Solicitors:

Plaintiff : Stephen Browne Lawyers

Defendant : Greenland Brooksby

Case(s) referred to in judgment(s):

Hanna-Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174

New South Wales v Fahy [2007] HCA 20

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

MAZZA DCJ:

Introduction

1 On 24 July 2004, the plaintiff was employed by the defendant as a carer of the elderly at the Castledare Retirement Village ("Castledare"). While moving an empty patient hoist through a doorway, she claims that she was injured by a door closing on to her left wrist and, as a result, she has suffered injury and loss. The plaintiff alleges that the injury occurred as a result of the defendant's negligence and that it is liable to pay damages. Her claim as to both negligence and the amount of any damages she might recover is disputed by the defendant. The defendant accepts that it owed the plaintiff a duty of care. The defendant's case is that the plaintiff was not injured but, if she was, it was not negligent. In any event, the defendant alleges, the damages sought by the plaintiff are excessive.

2 I have decided that the plaintiff was injured on 24 July 2004 and that she suffered a very minor soft tissue injury to her left wrist. However, the injury was not caused by the defendant's negligence and so she is not entitled to damages. Had she succeeded in her negligence claim she would have recovered $7,500. What follows are my reasons for coming to these conclusions.

3 I will deal first with the issue of negligence and then with my provisional assessment of damages.

The negligence claim

Undisputed facts

4 The plaintiff was employed by the defendant at Castledare on a part-time basis as a multi-skilled carer on or about 28 March 2003. The plaintiff's duties included the washing, grooming, dressing and toileting of the residents. From time to time, the performance of these duties meant that the plaintiff would have to push a hoist to and from a resident's room.

5 On 24 July 2004, the plaintiff was working at Castledare. The nursing home, was at that time, divided into two areas. One area, which was for residents with high care needs, was called Balmoral and the other area which was specially for dementia residents, was called Fleming.

6 Although the plaintiff had worked mainly in Balmoral, she had worked in Fleming. On the day of the alleged injury, she was working in Fleming. She had not worked there for the 3 months. Her co-worker that day was Susan Owen and her supervisor was a registered nurse, Joyce Kilcullen.

7 Prior to the alleged accident, the plaintiff and Ms Owen had been dressing a resident in Fleming, using a hoist. While Ms Owen performed the finishing touches, the plaintiff wheeled a hoist out of the resident's room with the intention of taking it to Balmoral. The journey to Balmoral involved the plaintiff pushing the hoist into the Fleming dining room and then through a doorway which led onto a corridor. It was in the process of pushing the hoist through this doorway that the plaintiff says that she was injured.

8 The alleged accident was re-enacted on 12 July 2005 in the course of proceedings taken by the plaintiff against the defendant for workers compensation. That re-enactment was recorded on video and was played at trial (Exhibit 4). I will refer to the re-enactment later, but it is useful to mention it now because it clearly shows the doorway and, in particular, the door that is at the centre of the plaintiff's claim.

9 The door is made of wood that hold 10 square glass panels which are set into the framework. The door had an automatic self-closing device fitted to the inside top left hand corner of the door. This device was plainly designed to ensure that the door closed by itself at a slow rate and could not slam. It is not alleged by the plaintiff that this device was, in any way, defective.

10 There was no evidence as to the precise weight of the door, although Ms Kilcullen described it as "heavy" because, she said, it was used as a fire-door. There was no evidence as to the width of the door or the doorway. However, the re-enactment video showed that they were a little wider than the hoist.

11 As one exits the Fleming dining room, the door is hinged on the left side of the doorframe so that if the door is closed it opens inwards from right to left.

12 The door was usually kept shut, but obviously it needed to be opened to allow residents and staff to pass through it.

13 Sometimes, both residents and staff needed to keep the door open, for example, when a staff member needed to push a hoist or trolley or a resident equipped with a Zimmer-frame needed to go through the doorway. For these purposes, up until approximately October 2002 a wedge of some type was placed at the bottom of the door. However, from time to time, residents removed the wedge.

14 In October 2002, in response to a written suggestion by a member of the Castledare staff for something more effective than a wedge to keep the door open, the stopper mechanism which was in position on the date of the accident was fitted by Castledare's maintenance man, Mr Steven Maguire, to the bottom left hand corner of the door basically in line with the door handle.

15 The stopper that Mr Maguire fitted was foot operated. It required the operator to press down on a metal plate that then locked a rubber stopper which was attached to a barrel bolt into position on the floor and by friction kept the door open. In order to close the door the operator needed to re-press the metal plate with his or her foot which then released the rubber stopper from the floor.

16 The stopper mechanism was fitted to the door in or about October 2002. According to the form which recorded the staff members' original suggestion and management's response to that suggestion, the stopper mechanism was fitted sometime after 9 October 2002 on a trial basis. Initially, at least, staff feedback was, as to its effectiveness, positive (Exhibit 18), and so it was kept in position.

17 There is no allegation on the pleadings that the stopper mechanism was an unsuitable choice for the task it was fitted to perform.

18 There is a dispute about the stopper's continued effectiveness and its effectiveness as at the date of the accident. I will deal with this later. Whatever the position, there is no evidence that anyone had prior to 24 July 2004 been injured using the door or the stopper.

The pleadings on the issue of negligence

19 The plaintiff's pleaded case on negligence is as follows:

"9. At all material times the door constituted a hidden danger.
PARTICULARS OF HIDDEN DANGER

9.1 the self-closing mechanism of the door caused the door to swing closed from the open position;

9.2 the door stopper was not working properly and/or was damaged or defective and was ineffective in keeping the door in an open position;

9.3 the door was liable to swing to the closed position when the door stopper had been activated and thereby expose a person walking through the doorway to a risk of injury by being struck by the door.

10. On 24 July 2004 and in the course of her employment with the defendant the following events took place:

10.1 the plaintiff was transporting a hoist;

10.2 the plaintiff needed to move the hoist from the Fleming Dining Room through the doorway to the hallway;

10.3 the plaintiff parked the hoist and then opened the door and pushed the door stopper to the down position;

10.4 the plaintiff then walked back to the hoist and commenced pushing the hoist through the doorway;

10.5 the door then swung to close and the plaintiff turned the hoist on an angle and moved her left elbow to prevent the door from closing, missed the door with her left elbow and the door struck the plaintiff on her left hand ('the accident').

11. The accident was caused by the negligence of the defendant.

PARTICULARS OF NEGLIGENCE
The defendant was negligent in that it:

11.1 failed to have in place a reasonable system for checking and inspecting the door;

11.2 failed to have a reasonable system to ensure that the door was maintained and kept in good and serviceable condition;

11.3 failed to ensure that repairs to the door stopper were carried out and/or failed to ensure that the door stopper was replaced notwithstanding that staff members had advised the defendant's maintenance man, a Mr Steve Maguire, that the door stopper was not working properly."

20 Save to admit that the defendant owed the plaintiff a duty of care, the defendant's answer to these paragraphs was a bear denial.

The plaintiff's account of the accident

21 There were, apart from the plaintiff, no other witnesses to the alleged accident.

22 In examination in chief the plaintiff described the alleged accident as follows: (T19–22)

"As you approached the door to the Fleming House dining room, can you explain to his honour what you did?---Yes. I walked to the dining room, pushed the hoist. About 10 feet from the door I parked the hoist and then went to the door, opened the door---
Just slowly. Yes?---pushed the stopper down.
I think you explained earlier, that's with your foot?---Yes.
Okay?---And then walked back to the hoist.
Yes?---Turned around and started to push the hoist towards the door.
Now, you are pushing the hoist from where? The back of the hoist?---Yes.
Now, I think there are some handles there on that---?---Yes.
---that hoist; is that correct?---Yes. That's – yes.
And can you show his Honour the position of your hands?---They were like that on the hoist.
And your---?---The handles come down and you hold there.
So you are indicating that your arms are extended out in front of you and your hands are holding onto the vertical part of the handles?---Yes.
That’s sufficient.
MAZZA DCJ: Yes. The hands are parallel to each other. And you are indicating at about what, just below shoulder height?---Yes.
OFFER, MR: So you've gone back into that position and you've done what?---Taken the hoist. I've turned around, put my hands on the hoist and looked up at the door as I was moving the hoist towards it.
Okay. And what did you notice about that? Anything about the door?---I noticed the door had started to close, so I hurried up.
Was it closing quickly, slowly?---It looked like it was closing slow and then by the time I'd got to the door it seemed to be going faster, so I swung the hoist around to my right and I thought I'd be able to get it with my elbow and just push the door back and then swing the hoist back through to the hallway.
So you're talking about swinging the hoist to the right?---Yes.
Are you moving the whole hoist across or are you moving part of the hoist?---No, it's got little wheels that you can just swing the ---
You're indicating – you're moving your hands---?---Sorry.
---to the left and talking about swinging it to the right?---To the right, yeah.
So you're swinging what part of the trolley to the right?---The whole thing.
Is it still moving in exactly the same direction as it was going before?---No, no. I'd moved it sideways so I could get my elbow up to push the door back and then while I was doing that I was swinging it back towards the door to get it through the doorway at the same time.
So you were putting it in a position where your elbow could stop the door from closing?---Yes.
MAZZA DJC: That's your left elbow you're indicating?---Pardon?
You're indicating your left elbow?---Yes.
Yes?---I didn't actually take my hands off the hoist and just put my arm up to stop it.
OFFER, MR: I'm not sure if I've covered this yet; was the door hinged in a way that it opened left or right?---Left.
So it was hinged on the left-hand side?---Yes.
So it was closing; as the door was closing it was approaching you from the left-hand side?---Yes.
Now, you mention that you were hoping to catch this door and stop it closing with your elbow. Were you able to do that?---No.
So what happened?---I missed and I'd already started turning the trolley back towards the door and the door hit me on an angle across my wrist, jamming it between the door and the handle of the hoist.
Was the door closing quickly or slowly at that stage?---Quicker at that stage.
Quicker than the initial---?---Yes.
Let's take it in steps. When you first saw the door you'd started moving towards it already and you mentioned that you thought at that time?---It was slow.
---it was moving slowly?---Because the rubber stopper was still stopping it to some extent.
Okay. And as you approached it, as you made the decision to manoeuvre the trolley so you could get your elbow up, was it still travelling?---It moved – started moving faster because it had gone across the uneven floor, so the stopper wasn't touching it at all.
And by the time that it hit your wrist area or back of your hand wrist area, how fast was it travelling at that stage?---Quite fast.
What do you mean by 'quite fast?' Was it slamming or is it just---?---No, no, it's still had it's – the door closing mechanism on it, but it was closing a lot faster than if it had been dragging. It all happened in a split second.
How long was it between the time that you attempted to manoeuvre the trolley to stop the door was it that your wrist hit? So you start to manoeuvre the trolley and then you get hit. What's the intervening time period between those two events?---Well, it's just a split second.
So when you were looking to throw your elbow out and stop the door from closing?---Yes.
Is that a quick action; slow action?---Quick.
So you got hit on the wrist. What happened then?---I used my right hand to push the door off my hand.
MAZZA DCJ: I think, just so that it is clear, the witness indicated that she was hit on her left wrist, which---
MAZZA DCJ: ---makes sense in light of her explanation, but so that it is clear that that's what she demonstrated. Yes, you asked then what happened.
OFFER, MR: You mentioned something about using your right hand to do something?---Yes, I pushed the door back and swung the hoist back through the doorway to take it back to Balmoral.
Okay. The time that you were hit on the wrist, did you feel any sensation?---Instant pain.
Of what type? What did it feel like?---Just like when you get banged on the hand.
Are you able to explain to his Honour the extent of the blow that you felt; whether it was a slight tap or something more?---No, it felt like being hit with the door. It's hard to explain. It's just a pain, you just feel like a squashing or jamming movement and you feel the pain on your hand instantly."

23 She was cross-examined about the accident as follows (T54-57):

"... Now, so you were moving this hoist back to Balmoral. You said you approached the door with your hands, and you indicated gripping the two handles, and your hands were vertical fists. Correct?---Yes.
And you said, I thought, that you had them slightly higher than chest height. Is that correct?---I'm not sure, because the height of the hoist, whatever the height is.
All right. You've said that you stopped the hoist 10 feet from the door?---Approximately, yes.
Now, when you say the hoist, is that the front of the hoist or is it you that was 10 feet from the door?---The front of the hoist wouldn't have been – it's hard to explain. Which would you call the front of the hoist and which would you call the back?
I would call the front of the hoist the bit that was closest to the door?---Okay. Well, I was at the back of the hoist then.
Yes, but how close to the door was the front of the hoist, that is the bit closest - - -?---Probably 4/5 feet. Maybe a bit more.
So you then left the hoist, walked to the door, opened it and pressed down the stopper?---That's correct.
And then you turned and went back to the hoist?---Yes.
Now, had you used one of these stoppers before?---I'm not sure.
Well, aren't they in other parts of the building
No.
... ---No, I think there's one on the door in Balmoral, going to outside.
So had you used that one?---Yes.
And you knew what to do as you simply stand on it?---That's it, press it down - - -
Press it down - - -?--- and it stays down.
... and it engages?---That's it.
And so you stood on it, you believed it had engaged - - -?---Yes.
- - - and you walked back to where you gripped the handles again?---Behind the hoist, yes.
Yes. And, now, tell me at what point did you say the door started to move. Had it started to move when you first turned around or did it start to move when you were proceeding forward?---It had already started moving when I turned around and had my hands on the hoist.
So at that stage you, yourself were about 10 feet from the door?---Yes, I suppose, yeah.
Why didn't you go and put the stopper back down?---It wasn't holding it the first time.
Well, you might not have put it down properly?---I did press it down firmly.
Well, when you say it wasn't holding it, was it jumping? Was it sliding? Was it making any noises, the rubber stopper?---I couldn't tell you.
Why didn't you then – I ask you again – why didn't you take care to go and see if you'd pressed it down properly?--- I know I had pressed it down properly.
...---Well, I thought I'd be able to catch the – I thought I'd be able to go through it.
And at the time you pushed the front, sorry, the – if you can just hold up this, I'm sorry, just use my friend's copy.
MAZZA DCJ: This is exhibit 1, is it? Yes.
CLYNE, MR: Exhibit 1, yes.
Your handles – can you just bear with me and call that the back and there's - - -?---Yeah.
- - - and there's the wheels that go out the front, the front?---Right.
Now, as the door was closing, did you get the wheels at the front within the closing door?---No.
Do you understand what I'm saying? You didn't?---No. I'd already swung the hoist before I got near the door.
So it was closing; you swung the hoist and tried to catch it with your elbow?---That's correct.
And missed?---Yes.
And where do you say on your left hand/wrist you got hit?---Just across the – about here.
...
CLYNE, MR: ... So when it hit you, what did you do then?---I took my right hand and pushed the door off.
And pushed the hoist through?---Yes.
Now this door, you have already said, had a slow closer at the top?---That's it.
And I suggest the door didn't move very quickly and that's why you thought you were going to get through it?---Yes."

24 As I mentioned earlier, the plaintiff was present when a re-enactment of the accident took place at Castledare. This re-enactment was recorded on a DVD which was played at trial (Exhibit 4). Also present at the re-enactment were representatives of the plaintiff, the defendant and WorkCover. No complaint has been made about the fairness of the re-enactment. The plaintiff did not herself demonstrate what had happened on the day of the accident. Others attempted to manoeuvre the hoist through the door as the plaintiff had described. The plaintiff took both an active and vocal part in the re-enactment. Overall, I have no doubt, that she effectively conveyed her account of the accident and how it occurred.

25 Although the re-enactment occurred almost a year after the alleged accident, it has not been disputed that the door, self closing mechanism or the doorway had materially changed. However, immediately after the accident the stopping mechanism was changed so that the door could be fixed in an open position by engaging a bolt into a hole drilled in the concrete floor slab.

26 I think that the plaintiff's account of the accident is expressed in the re-enactment was consistent with her evidence about it. However, the re-enactment showed a number of significant things in my view.

27 First, although difficult to recreate and could only occur if the plaintiff had turned the hoist almost 90 degrees to her right, it was possible for the door to strike the plaintiff on the left wrist near the thumb and index finger, as she described in her evidence (see Exhibit 4 at between 12.44 minutes to 13.11 minutes).

28 Second, once the door was released from the wide open position and with the stopper in an unengaged state, it closed very slowly (Exhibit 4, 00.00 to 00.15 minutes and again at 9.00 minutes to 9.10 minutes).

29 Third, the collision between the door and the plaintiff's hand occurred approximately half way through the door's closing arc.

30 Fourth, the pace and the force at which door would have hit the plaintiff's wrist appear, in my opinion, gentle.

The immediate aftermath

31 The plaintiff said in examination in chief that she noticed a red mark and graze to the area which had been hit by the door and that her hand was sore. She reported the accident to the registered nurse on duty, who was apparently Joyce Kilcullen, and then completed a staff incident report form (Exhibit 5). She then went back to work. She said that by this time she felt pain in the left wrist. She said that the registered nurse told her to get a Betadine swab, a compression bandage and apply ice to the wrist.

32 The plaintiff said that she returned to Castledare on 26 July 2004 which was her next rostered day for work. The director of nursing, Florence Bremer, came to see her about her injury and how it occurred. She requested the plaintiff complete a hazard alert form in relation to the stopper which she did (Exhibit 19).

33 On 27 July 2004 the plaintiff went to see her general practitioner, Dr Lim, about the injury. He noted that the plaintiff:

"had a slight swelling over the dorso-lateral part of her wrist. I did not see any laceration or bruising. However, she was tender over the base of the first carpo-metacarpal joint area dorsally, (the anatomical snuff box area)."

34 (Exhibit 14 p 5 letter from Dr Lim to Catholic Church Insurances Limited 7 November 2004). Dr Lim noted in a letter dated 25 March 2005 to the defendant's insurers (Exhibit 14 p 9) that the plaintiff gave a history of her left wrist being jammed by a door.

35 On 31 July 2004 the plaintiff went to work but Ms Bremer relieved her of her duties due to her injuries. Apart from a very brief work trial on 8 October 2004 the plaintiff never returned to work.

36 Ms Kilcullen, in her evidence, confirmed that the plaintiff had reported the accident to her. She said that she saw "a slight red mark" but no swelling, graze or laceration. She said that she told the plaintiff to get an ice pack but she did not give her a Betadine swab.

37 Ms Bremer said that on 26 July 2004 she spoke to the plaintiff who told her that the door had closed on her left wrist while she had been pushing a hoist through the door. Ms Bremer said the plaintiff told her that the stopper on the door had not been working properly for some time in the past. Ms Bremer said that she asked the plaintiff to complete a hazard alert form.

Evidence about the stopper

38 There was conflicting evidence about whether the stopper had been working properly before and at the time of the accident. As I just mentioned, the plaintiff told Ms Bremer that the door stop had not been working some time prior to the accident (see Exhibit 13 the staff incident investigation form).

39 Faye Ashworth, another carer at Castledare said that the stopper "didn't seem to work properly" (T254). She said it was "always dicky" and was "always being fixed" (T254). She thought the problem was caused by a resident who kept closing the door with the stopper in place.

40 She said that the stopper would not keep the door in an open position and, as result, it would slide. It got to a point, Ms Ashworth said, where she "gave up" using it.

41 When she went through the doorway she would not bother to engage the stopper with her foot, instead, she kept the door open with her backside and she pulled the hoist through. She said that she noticed a groove in the vinyl floor covering where the rubber stopper had slid. Ms Ashworth said that she probably told both Joyce Kilcullen and another registered nurse about the problem but she did not complete a maintenance request form or a hazard alert form because she was busy and those forms were locked in the office.

42 Another carer, Mira Broekstra, said that carers and residents did not know how to use the stopper and a groove was worn into the lino by the stopper's misuse. She said that unless the rubber stopper was very new it did not hold the door open.

43 She said that she spoke to Castledare's maintenance man whom she named as "Steve" (Steve Maguire), about the problem and the stopper was replaced three times. She recalled that Steve replaced it on two occasions and another maintenance man replaced it the third time. After the third occasion Ms Broekstra said that the stopper broke again and that she told Steve about it but nothing, as far as she knew, was done to repair it. She said that at the time the plaintiff was injured the stopper was not working.

44 Ms Broekstra said that although she informed the maintenance man of what happened to the stopper she did not fill in a maintenance request form or a hazard alert form. She said that this was because the workload at Castedare was "over the top" and the forms were kept in the office. However, in cross-examination she agreed she had, in relation to another matter entered the concerns she had on a maintenance request record. In fact she did this on 26 July 2004 which was coincidentally the date on which the stopper was replaced.

45 Ms Broekstra explained that she got through the door by flinging it open and then pulling the hoist quickly through the door and letting the door either hit the hoist or her body. She said that the door did not injure her nor did she see anyone injured by it.

46 The director of nursing at Castledare, at the relevant time, Ms Bremer, said that after the stopper was installed she used the door once per day and did not observe any problems with it for either staff or residents including residents using a zimmer frame. However, Ms Bremer said that she did not need to engage the stopper when she went through the door.

47 She said that she was unaware of any problem with the stopper until she spoke to the plaintiff on 26 July 2004. She said that she immediately checked the maintenance register and hazard alert forms and found nothing about the stopper had been recorded. She completed a hazard alert form (Exhibit 19) and an accident investigation form (Exhibit 13).

48 Ms Bremer said in examination-in-chief that on 26 July 2004 she went to the door and used the stopper and that it held the door open. She said that when the stopper was released it closed slowly and evenly. However, in cross-examination she agreed that in WorkCover proceedings on 29 July 2005 she said that on 26 July 2004 the rubber stopper was dragging across the floor. Although Ms Bremer did not resile from the evidence she gave in examination-in-chief, in light of the clear contradiction between that evidence and the evidence she gave in the WorkCover proceedings I do not accept her evidence that the stopper was working on 26 July 2004.

49 Ms Bremer said it was "totally incorrect" that the hazard alert and other forms were locked in her office. She said all forms were kept in each house in Castledare. She said that the hazard alert and the maintenance request forms were kept at the receptionist's desk in the administration area of each house. The clear implication of her evidence was that all forms were readily available to carers.

50 Ms Bremer conceded that it was difficult to manoeuvre the hoist through the door without the door stopper being engaged.

51 Ms Bremer said that after the incident was reported to her, the rubber stopper was replaced by Mr Maguire drilling a hole in the concrete pad and having a drop-down bolt fitted to the stopper which, when engaged, kept the door in the open position.

52 Joyce Kilcullen said that she used the door and pushed trolleys but not hoists through it. She said that she used the stopper once it was fitted to keep the door open and she found it to be in working order. She said that she was unaware that from to time the stopper did not work.

53 Susan Owens said that prior to the accident she had gone through with a hoist "many times" using the stopper and it did not cause her any problems.

54 Steven Maguire who was the maintenance man at Castledare and at two other homes owned by the defendant said that he fitted the stopper to the door. He could not remember the precise date that occurred but he accepted that it occurred in or about October, November 2002. He said that between the time he installed the stopper and the date of the accident no problems with the stopper were brought to his attention. He said that he did not recall replacing the rubber stopper during that time. He said that when he was informed of the accident and replaced the rubber stopper with the bolt he examined the rubber stopper and saw some wear on it. He also noticed a six inch or so black mark on the floor indicating that the door had slid from where it had been fixed. He drew a sketch of where the mark was in the door's arc (Exhibit 21). The sketch drawn by Mr Maguire shows that the door opened in the Fleming dining room approximately 105 to 110 degrees and that the mark was between that point and approximately 90 degrees. He said that he did not see any grooving on the floor.

55 Mr Maguire said he was well aware of the need to ensure that any work he did was robust enough to withstand the demands of dementia residents. He also said he was well aware of the need to ensure their safety. He said that if he had noticed anything wrong with the stopper or had been told something was wrong he would have fixed it.

Evidence about the system of maintenance and dealing with hazards

56 The plaintiff did not call any witness specifically devoted to Castledare's system of maintenance, nor was there any specific cross-examination of any of the defendant's witnesses, including Ms Bremer focused on identifying what system, if any, there was for checking, inspecting and maintaining the door, or equipment generally at Castledare. No expert evidence was called about the generally accepted standards of maintenance in this industry.

57 However evidence did emerge during the course of the trial of measures which management had put into place to deal with any maintenance issues or hazards which staff observed or experienced in the course of their duties.

58 If something needed to be fixed, staff were required to document it in a Maintenance Request form, an example of which is Exhibit 15. This shows that in the week between 21 and 28 July 2004, 13 maintenance items were noted. The form clearly contemplates a procedure where a carer notes that an item of maintenance needs to be performed, the item is in fact performed and that person is identified. Exhibit 15 shows that during the week covered in that form Mr Maguire carried out nearly all the items of maintenance and that he signed off on each item to signify that it had been performed.

59 Exhibit 19 is an example of a hazard alert form. The structure of the form is such that it would appear that the procedure with respect to any perceived hazards was that once the hazard was observed it is reported to a supervisor who then has the responsibility to take action. The action taken by the supervisor is recorded and the matter is then reported to the quality committee. I heard no evidence about this committee but I assume that its function was to ensure that hazards are properly dealt with.

60 The evidence of Ms Ashworth and Ms Broekstra who said that they had noted the problem with the stopper before the plaintiff's accident was that they were each aware of the requirement to complete the forms but they did not do so. Ms Ashworth and Ms Broekstra did not complete the forms because the documents were kept in the office and, in any event, each said they did not have time to complete them.

61 Ms Ashworth said that she told one of the registered nurses either Joyce Kilcullen or another nurse whose name she could not remember but it was either Catherine or Kathleen about the stopper. Joyce Kilcullen said no one told her about the problem before the plaintiff's accident. I accept her evidence that she was not told. Ms Kilcullen struck me as being a particularly conscientious person and very careful about the performance of her duties. I think had she been told she would have had it fixed. This leads to the possibility that the other nurse was told about it. Of course the other nurse has only been vaguely identified and Ms Ashworth did not say when she notified her of the problem. It may be that she notified the other nurse of the problem and it was fixed bearing in mind that the evidence of Ms Broekstra was that on a number of occasions the stopper was in fact fixed.

62 Ms Broekstra said that she had been too busy to note the persistent problem with the stopper although she had noted in Exhibit 15 a broken wardrobe lock in one of the resident's rooms.

63 Ms Bremer said that although the procedure was to complete the Maintenance Request Record and/or a Hazard Alert form sometimes if staff saw that something needed fixing and Mr Maguire was about he would be told and the matter would be fixed on the spot. In this case forms may not have been completed.

64 Mr Maguire confirmed this. He also made it clear that if he saw something that needed fixing he would fix it without a request.

65 In my opinion the evidence established that the defendant had in place systems to deal with items that required maintenance and workplace hazards. Those systems required that any item requiring maintenance or any perceived hazard be entered by staff on the relevant form. Once entered on a form, an item of maintenance was fixed by the defendant's maintenance man. Hazards were notified to a supervisor who was then expected to take any appropriate remedial action and report the matter to a committee.

66 Even on the evidence of Ms Ashworth and Ms Broekstra, the system was well-known to employees. I do not accept their evidence that the forms were inaccessible. Ms Broekstra was able to access the maintenance request form when she wished. For employees to enter 13 maintenance requests over a week between 21 and 28 July 2004 indicates that the Maintenance Request form was readily accessible. When the plaintiff was told to complete a hazard alert form she expressed no difficulty in locating it. I accept that workers at Castledare were busy and had much to do but I cannot accept that they had no time to complete any of the forms had they wished to do so. The form seemed simple to complete.

67 Mr Maguire impressed as a person who attended to any maintenance issue or hazard that was reported to him quickly and conscientiously. It appeared to me that the system of notification by form was backed up prompt remedial action.

68 Mr Maguire himself dealt with anything that needed to be fixed without a form if he saw something that required attention if an employee alerted him to something as he passed by.

Evidence with respect to Particular of Negligence 11.3

69 The allegation of negligence at par 11.3 of the statement of claim was that although Mr Maguire had repaired the stopper on a number of occasions after being requested to do so, he failed to repair the stopper when requested to do so by Ms Broekstra some months prior to the plaintiff's accident.

70 Ms Broekstra's evidence was that the door stopper had not been working for months prior to the plaintiff's accident. She said that she told Steve Maguire that "the door was broken again" (T264) and that as far as she knew, nothing was done about it.

71 I do not accept this part of Ms Broekstra's testimony. Mr Maguire was, in my opinion, acutely aware of the importance of properly maintaining the aged care facilities of the defendant he was aware of the special needs of dementia patients at Fleming House. He had in the past fixed the stopper when asked to do so. He struck me as someone who was careful with his work and who appreciated the importance of properly maintaining the facilities at Castledare. I was particularly impressed by his evidence that he would fix things that he saw required work even if he was not requested to do so (T381). I think it is unlikely that if Mr Maguire had been told that the stopper was not working properly by Ms Broekstra he would not have done anything about it.

Counsels' submissions on liability

Plaintiff's submissions

72 Mr Offer submitted that I should accept the plaintiff's account of how the accident occurred. He submitted that she had given a consistent account of what occurred and had behaved consistently with someone who had been injured as she claimed.

73 Mr Offer agreed that the plaintiff's case in negligence could not succeed unless I was satisfied that the plaintiff had proved that prior to attempting to push the hoist through the door she had engaged the stopper. As to this, Mr Offer submitted that the plaintiff's evidence that she had engaged the stopper was largely unchallenged and, as a result, I should make a finding that she did engage the stopper.

74 As to the particulars of negligence set out in par 11.1 and par 11.2 of the statement of claim, Mr Offer submitted that the system of maintenance employed by the defendant was inadequate. He submitted that there was no evidence that the defendant had any system of regular inspection or preventative maintenance. Further, based on the evidence of Ms Ashworth and Ms Broekstra, the system which relied upon members of staff completing a maintenance alert form and/or a hazard alert form was ineffective because it was not followed.

75 Mr Offer submitted that I ought find that Mr Maguire ignored Ms Broekstra's request for the stopper to be repaired when she noticed that it had not been working properly sometime before the plaintiff's accident. This failure was, it was submitted, a clear breach of duty of care owed by the defendant to the plaintiff.

76 Mr Offer submitted that the injury which the plaintiff sustained was reasonably foreseeable even though the risk of injury both as to frequency and severity was small. He submitted that the circumstances which gave rise to a foreseeable risk of injury were that the defendant knew or ought to have known that a worker who had to manoeuvre a bulky piece of equipment like an empty hoist would have, in the event that the stopper failed, a limited timeframe within which to go through the door. He argued that there was real possibility that in these circumstances the door would close on a carer before the carer got through the doorway thereby exposing him or her to a risk of injury from the door striking the carer.

77 Mr Offer submitted that bearing in mind that the test laid down in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 was "undemanding" as to the risk of harm, the plaintiff had established that the risk was not far fetched or fanciful and was accordingly foreseeable.

78 Mr Offer submitted that the defendant's reasonable response to the risk of injury in this case was to ensure that the stopper was maintained in working order, and that to do so would not be difficult or expensive.

The defendant's submissions

79 As to the threshold question of whether the plaintiff engaged the stopper, Mr Clyne submitted that the evidence of Ms Bremer, Ms Kilcullen and in particular Ms Owen was, he said, to the effect that the door stopper was working properly and that if I accepted this evidence it would be open to me to find that the plaintiff did not engage the stopper.

80 In any event, the Mr Clyne submitted that there was no evidence or no sufficient evidence to support the allegations of negligence particularised in par 11 of the statement of claim. In other words, there was no breach of the plaintiff's duty of care to the defendant.

81 With respect to particulars of negligence in 11.1 and 11.2, Mr Clyne's submission was that there was a reasonable and effective system of maintenance. In support of this submission he referred to the evidence concerning the maintenance request and the hazard alert forms. He submitted that Mr Maguire's evidence was that he would respond to maintenance requests entered on the form and that he was acutely aware of his obligations to ensure that maintenance requests were properly dealt with. Mr Clyne also pointed to Mr Maguire's evidence that if he saw something which needed fixing he would fix it without the request.

82 Mr Clyne submitted that the evidence of Ms Ashworth and Ms Broekstra indicated that they were both aware of the system and their duties to complete the relevant forms in respect of any maintenance issue. Their failure to complete the forms did not prove that the procedure was not routinely followed. Mr Clyne submitted that their reasons for failure to complete the forms were in effect unsatisfactory and do not show a breakdown in the system. Mr Clyne submitted that reasonableness in this case did not require the defendant to do anything more than what he did, that is, to replace the stopper when it was required to do so.

83 Mr Clyne submitted that I should accept Mr Maguire's evidence that the only time he had not seen the stopper operate was when it was not correctly pushed down and if the stopper wasn't properly engaged the door "sometimes moved a little bit" (T377). He submitted that there was nothing wrong with the stopper prior to the accident and that if there was it was unlikely that Mr Maguire would have ignored it.

84 Mr Clyne submitted that having regard to the so-called Shirt calculus, the plaintiff's injury was not reasonably foreseeable bearing in mind that the question foreseeability must be judged prospectively and not retrospectively. Mr Clyne submitted that the self closer regulated the speed at which the door closed and that was working properly on the day of the accident. The door stopper was not employed to stop injury but to make it easier for carers to wheel machinery through the door. The door, even if the stopper failed, closed so slowly it was not a hazard and the chance of injury was fanciful even if there was impact by the door onto the body of a carer. The door, Mr Clyne pointed out, had not in the past caused injury nor was there any evidence of apprehension of injury.

Did the accident happen as the plaintiff described?

85 For the plaintiff's claim to have any chance of success, I must be satisfied on the balance of probabilities that there was an accident which caused an injury and that it occurred as the plaintiff alleged. In particular, I must be satisfied that the plaintiff actually engaged the stopper immediately before her attempt to push the hoist through the door, and that it did not properly work.

86 I am satisfied on the balance of probabilities and I find that the accident occurred in the way she alleges. The plaintiff has been consistent throughout as to how she sustained her injuries. I could detect no material change in her account between what she told Ms Kilcullen, what she said during the re-enactment and what she said from the witness box.

87 It is in her favour, in my opinion, that she reported the accident immediately after it had occurred to Ms Kilcullen and on her next shift to Ms Bremer. When she reported the accident to Ms Kilcullen she showed her a slight red mark on her hand consistent with the injury she said she sustained.

88 Finally, although it took some doing on the reconstruction DVD, the re-enactment shows that it is indeed possible for the door to have closed on the plaintiff's hand as she alleges.

89 I think it is more likely than not that the plaintiff engaged the stopper. She has consistently said that she did. She was, after all, dealing with a bulky piece of machinery and it makes sense that before pushing it through the doorway, the operator would, usually, operate the stopper in order to keep the doorway clear.

90 There remains the question of the effectiveness of the rubber stopper. Rubber, is a material which is subject to wear either through use and/or abuse. The stopper was installed on a door which, on the evidence, was frequently used either by members of staff or residents. The evidence of Ms Ashworth was the one resident with dementia kept closing the door with the stopper in place and Ms Broekstra said that residents and carers did not know how to use the stopper properly. All these things would have caused wear to the rubber stopper which would have impaired its effectiveness. Both Ms Ashworth and Ms Broekstra said that the rubber stopper had to be fixed after it was installed.

91 No witness has said that the rubber stopper was always defective. It was apparent, even from Ms Broekstra's evidence, that there were periods of time where the rubber stopper held.

92 In the end, having regard to all of the evidence on the topic, I find that the rubber stopper was inconsistently effective. This explains why some witness's experiences of the effectiveness of the stopper were different from others. The difference might also be explained by the frequency with which the stopper was engaged by each individual. At the time of the accident, Ms Broekstra said that the rubber stopper was not working properly. This was of course the plaintiff's testimony. There is, I think, some support for this from Mr Maguire's evidence. When Mr Maguire replaced the rubber stopper on 26 July 2004 he found that there was some wear on the stopper. He also found a 6 inch black mark on the floor in the door's closing arc which indicated some slide in the stopper and some diminution of its effectiveness. For these reasons, I find that it was more likely than not that the stopper was not working properly on the day of the accident. This is not to say that the stopper was not working at all. Even on the plaintiff's own evidence, at the beginning of the door's closing arc, the door closed somewhat slower indicating that it worked to some extent.

93 The plaintiff has proved the matters pleaded in par 10 of the statement of claim.

Did Mr Maguire ignore Ms Broekstra's request to repair the stopper?

94 This is the allegation at the heart of particular of negligence 11.3. I have already dealt with this particular between [69] and [71] of these reasons.

95 I do not think Mr Maguire ignored Ms Broekstra's request. This particular of negligence has not been proved.

Was the door a hidden danger?

96 This plea can be dealt with shortly. Although the door was pleaded as constituting a hidden danger, that plea was not pressed during trial. This was understandable. The plaintiff, on her own evidence saw that the door had started to close and she hurried up to get through the door before it closed. This was not a situation where the door suddenly and unexpectedly, from the plaintiff's point of view closed on her. In these circumstances, the door could not be said to be a hidden danger. Accordingly, par 9 of the statement of claim has not been proven.

Allegations of negligence – subparagraphs 11.1 and 11.2 of statement of claim

97 In Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [18] Gummow J succinctly summed up the general principles applicable to negligence as follows:

"First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care: it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Counsel v Shirt."

98 In Wyong Shire Council v Shirt (supra) at 47 Mason J said:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable person in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."

99 At p 48 his Honour said:

"The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

100 In New South Wales v Fahy [2007] HCA 20 Gleeson CJ at [7] urged courts not to lose sight of the ultimate criterion of reasonableness and not to adopt in a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance.

Applicability of the principles to the facts of the case

101 There is no doubt that the defendant owed the plaintiff a duty of care. The admitted scope of the duty owed by the defendant to the plaintiff is expressed in par 3(a) of the defence as "to take reasonable care to provide [the plaintiff] with safe plant, safe premises and a safe system of work". The plaintiff did not seek to prove anything more.

102 The real dispute in this case centres upon the question of whether there has been a breach of the defendant's duty of care towards the plaintiff. That duty is to take reasonable care for her. It is not to take all possible steps to prevent harm to her.

103 This takes me to the identification of the relevant risk of injury. Mr Offer submitted that people who entered or exited the dining room through the doorway were at risk of injury of being hit by the door.

104 With respect to Mr Offer, I think that this is far too broad a statement of the risk of injury. If there was a risk of injury, that risk was not to everyone who used the door. It was only to those persons who engaged the stopper and who had to wheel things in or out of the doorway.

105 Moreover, it is not so much the risk of the door hitting someone which is critical, rather, it is the risk that such an event would injure someone. I make this point because as I observed earlier the pace at which the door closed was slow and the forces behind it and opposing it were gentle. Most people would see the door closing and would have time to take evasive action to prevent any real prospect of injury. For example, a person operating any kind of machinery might let the door strike against the machinery or the person might stop going in or out of the door and wheel the machinery backwards away from the door or a person might block the progress of the door using a hand or foot or brace a part of their body to absorb the gentle impact of the door.

106 The re-enactment showed that in order for the door to strike the plaintiff as it did on her hand required her to move the hoist in an unusual way. Further, the plaintiff, on her account, intended for the door to hit her elbow but somehow it hit her hand.

107 In my opinion, and without hesitation, the risk of injury was very low indeed.

108 I now turn to the question of breach having regard to Mason J's judgment in Wyong Shire Council v Shirt (supra). The first question I must answer is whether a reasonable person in the defendant's position would foresee that a failure to repair the defective stopper involved a risk of injury to the plaintiff? I recognise that a risk which is not far-fetched or fanciful is real and therefore foreseeable. I further realise that this test is undemanding. See Hanna-Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174 per Buss JA at [39].

109 Viewing the question of reasonable foreseeability from both an objective and prospective standpoint, and even taking into account the undemanding nature of the test, it seems to me that in the circumstances of this case, the risk of injury was so low as to make it far-fetched or fanciful, and accordingly unforeseeable.

110 However, in case my opinion on the issue of reasonable foreseeability is wrong, I intend to proceed with the other criteria raised by Mason J in Wyong Shire Council v Shirt.

111 Assuming then that the risk of injury to the plaintiff was reasonably foreseeable, what should a reasonable person in the position of the defendant have done in response to the risk? In my opinion, not only was the risk of injury low but so too was the magnitude of any injury that might have been caused to someone who was hit by the door.

112 In every home and in every workplace there are potentially many hazards and while some hazards must be addressed by immediate remedial action, others do not. Because the risk of injury was so low and because any injury that might have occurred was likely to be very minor, I do not believe that it was reasonable to expect that the defendant would, on a regular basis, inspect and if necessary repair or replace the rubber stopper. In my opinion, the systems that the defendant had in place to deal with maintenance or potential hazards were a reasonable measure to deal with any foreseeable risk. As I observed earlier in the context of the evidence of Ms Ashworth and Ms Broekstra, the system was well known based on Exhibit 15 and Mr Maguire's evidence that maintenance requests and hazards were promptly attended to. The defendant's system was supplemented by members of staff being able to ask Mr Maguire to undertake repairs or Mr Maguire himself undertaking maintenance and repairs that he thought needed to be done.

113 Mr Offer in his closing submissions described the magnitude of the risk posed by the stopper as not appearing "to be particularly high" (T572) and said that the defendant should have taken the same remedial action as it ultimately took on 26 July 2004, that is, drilling a hole in the concrete pad and replacing the rubber stopper with a bolt mechanism. With respect to Mr Offer, this submission is made from a retrospective position. While such a measure would have prevented the accident which led to the plaintiff's injury, the rubber stopper, even in the partly worn condition that it was in on the date of the accident, posed such a low risk of injury that it did not require a reasonable person in the position of the defendant to install a bolt system.

114 There are other matters which also need to be borne in mind when assessing what a reasonable person's response would be to any risk of injury caused by the stopper. The first is that there has been no history of injury nor is there any evidence of any apprehension of injury caused by the stopper. Further, self closing doors, without stoppers, are a very common phenomenon which are not generally regarded as being in any way hazardous even though there was always a risk that for one reason or another, a person will not manage to get through the doorway before the door closes. The self closing mechanism itself serves to slow the progress of the door through its closing arc and reduce the force of any impact. In my opinion, the installation of the self closing mechanism itself is an important consideration when deciding what measures a reasonable person in the position of the defendant should take with respect to the stopper.

115 With respect to the issue of breach, I find that a reasonable person in the defendant's position would not have foreseen that the worn rubber stopper constituted a risk of injury to anyone who used the door, including the plaintiff. Even if I am wrong in this assessment and even if the risk of injury was reasonably foreseeable, the system the defendant had in place at the time of the accident was, in my opinion, a reasonable response to the magnitude of the risk and the probability of its occurrence both of which were very low.

116 In my opinion, although the plaintiff has established that the defendant owed her a duty of care, the defendant has not breached that duty of care. Specifically, the particulars of negligence set out in par 11 of the statement of claim have not been proved to me on the balance of probabilities. Further, I do not believe that the door posed a hidden danger. For these reasons, the plaintiff's claim must fail.

Provisional assessment of damages

117 The plaintiff's case as pleaded in her statement of claim is that she suffered the following injuries:

(a) A laceration to the left wrist;

(b) Soft tissue injury to the left wrist; and

(c) Major depressive disorder.

118 The plaintiff's case is that since she was injured she has suffered constant pain in her left hand which prevents her from gripping objects, working in any capacity, attending to her usual domestic activities and to many of the functions of everyday life, driving a motor vehicle and pursuing her hobbies. Further, as a result of the injury, she has become severely depressed.

119 The plaintiff's case is that she is entitled to substantial damages for pain and suffering, past and future economic loss and superannuation benefits, the provision of past and future gratuitous services, various items of special damage and interest.

120 The defendant's case was to generally deny that the plaintiff is entitled to any damages. In its defence, the defendant pleaded that any injury, loss or damage suffered by the plaintiff since the date of the accident results from three previous injuries suffered by the plaintiff in July 1987, February 1999 and August 2000. This plea was not pursued by the defendant at trial.

The evidence

The plaintiff

121 The plaintiff was born on 2 April 1952. She is currently 57 years of age and was, at the time of the accident, 52 years of age. She is married and has five children. She is presently on a disability support pension.

122 She said that she left school during year 10. After leaving school she performed clerical and office work and worked in a petrol station. She assisted her first husband in his trucking business mainly by performing the bookwork.

123 In 1987 she was working as a tax consultant at H&R Block. While there she fell and suffered an injury to her neck. She suffered depression as a result of this injury and was off work completely for 3 years.

124 In February 1999, while working as a cleaner at Underwater World, she strained her left wrist lifting a bin. She said she had problems with the wrist for a 9 to 12 month period. She said she suffered from depression as a result of this injury.

125 Since 2000 she has worked as an aged carer commencing work with the defendant on 28 March 2003 as a multi-skilled carer. Her duties included washing, grooming, dressing and toileting aged residents. In 2003 she said she herniated a disc when she was punched by a dementia client and fell over a laundry trolley. She said this injury caused her problems for about 9 months. She agreed that she had experienced some depression following this injury.

126 In 2004, prior to the accident the subject of this action, she became involved in an altercation with another carer at Castledare. She said she suffered a short bout of depression as a result of this.

127 The plaintiff's evidence was that in the period leading up to the accident on 24 July 2004 she was fit, well and happy.

128 After the accident, the plaintiff said that her general practitioner, Dr Lim, arranged for her left wrist to be x-rayed and initially treated her with a compression bandage and Neurofen. Later, after an ultrasound examination of the wrist, Dr Lim arranged for the wrist to be drained and the plaintiff to receive a cortisone injection. The plaintiff said that she felt a three fold increase in her pain after her wrist was drained.

129 The plaintiff said that in time she came to experience numbness in the index finger and thumb and sharp pain when those digits were used. She said that she underwent physiotherapy which she described as painful. The plaintiff said that she wore a hard plastic splint for a while but it only aggravated the pain so she began to wear a compression bandage around her wrist.

130 From about September 2004 she saw a number of specialists. I will outline their evidence in due course.

131 The plaintiff said that she was off work on workers' compensation from late July or early August 2004 and apart from a very brief and unsuccessful attempt to return to work in September 2004 she has not worked since. She tendered a letter of resignation to her employer on 26 October 2006 (Exhibit 9). She has been on a disability support pension since about July 2008.

132 Currently, the plaintiff said that her left wrist remains very sore with numbness in her index finger and thumb. She said she had no feeling between those digits and that she experiences quite a lot of pain in the snuffbox area of the thumb. The plaintiff said that while she can bend her wrist it is painful to do so. She said that she experiences pain in both shoulders if she lifts above the shoulder height or reaches behind her back. She also said that she suffered intermittent pain in her right elbow.

133 She said that her injuries prevent a lot of her day-to-day activities including doing up her bra, washing her hair, shaving her legs, spraying deodorant and any activity which requires to hold anything of weight with her index finger and thumb.

134 While she can cook, activities such as peeling, chopping or holding saucepans cause her problems. She said that she cannot perform domestic chores such as sweeping, mopping, putting out the washing and gardening. She said she could shop but she pushes the trolley with her left forearm and does not lift grocery bags with her left hand.

135 The plaintiff said that while she was able drive she now drives an automatic car whereas in the past she had driven a manual.

136 She said she used to enjoy fishing and knitting but she can longer do either of these activities.

137 Psychologically, the plaintiff confirmed that she was well as at the date of the accident. However, since ceasing work, she said she began to lose her self confidence and since December 2004 has developed depression. She has seen both psychiatrists and psychologists for treatment of her depression. She describes her condition as withdrawn and moody and that she gets no pleasure from life. The plaintiff said that she does not like noise or crowds. She said that she relies upon her daughter Tammy Williamson and her husband to assist her in carrying out her daily activities.

138 The plaintiff said that prior to the accident she was an independent woman who cared for others. However, she cannot cope with the situation she is now in where she is in need of care. She said that she no longer feels that she is a full person and that she is bleak about her future.

139 The plaintiff said that she was no longer fit enough to work either as a carer or in any clerical role. Apart from her physical problems with her hands and shoulders she said that she found it difficult to concentrate.

140 The plaintiff said that after each work accident that she had had in the past, she suffered from depression which resolved once any associated legal claim had been settled.

The plaintiff's doctors

141 The evidence of the medical practitioners called by the plaintiff was as follows.

Frederick Ng

142 Dr Ng is a specialist in psychiatry and has been practising in that area on a full-time basis since 1993.

143 He first saw the plaintiff on 9 June 2005 and again on 16 September 2008. The plaintiff's solicitors provided Dr Ng with copies of the surveillance footage.

144 Dr Ng provided three reports dated 9 June 2005 (with an addendum dated 1 July 2005), 16 September 2008 and 12 November 2008. The last report dealt with the surveillance footage.

145 Dr Ng's reports can be found in Exhibit 14 between p 35 and p 59.

146 The plaintiff told Dr Ng about her previous history of depression. She told him that her depression in connection with the injury to her hand occurred in about December 2004. The plaintiff told him that initially she thought that it was no more than a bang on the hand and that she would have no problem getting better but when she did not improve she became very stressed and depressed. She told Dr Ng on 9 June 2005 that in December 2004 "she became very tense, felt depressed, had transient suicidal ideas, ... felt very tired, became easily unsettled and could not cope with loud noises, withdrew socially and had difficulties with sleep with initial and middle insomnia. She said she became moody." (Exhibit 14 p 39 – p 40)

147 Dr Ng diagnosed the plaintiff as suffering a major depressive disorder to a mild-moderately severe extent. In his opinion, she was predisposed to a depressive disorder. In his opinion the episode of depression had been precipitated by the work related injury of 24 July 2004.

148 Dr Ng was of the view that the plaintiff's major depression remained when he saw her on 16 September 2008 but said in his evidence at (T171) that it had improved to some extent.

149 Dr Ng was of the view that her psychological state was linked to her pain state and if her pain state could be treated, he expected an improvement in her psychological state.

150 Dr Ng noted from his consultation with the plaintiff in September 2008 that the plaintiff had been depressed for over 4 years. In his evidence, he said that the longer that a person remains depressed the more likely it is to persist and not go into remission.

151 In his opinion, the plaintiff will require antidepressant medication for the foreseeable future and she will also require sleeping tablets and psychotherapy.

152 With respect to the surveillance footage, Dr Ng was of the opinion that it was very difficult to judge the plaintiff's emotional state at the time that the footage was recorded. He said at (T175) "how the person is feeling inside may not necessarily correlate to what they do".

153 Dr Ng noted that while her motivation to do certain things was diminished, that does not mean that she was unable to shop, socialise and go to shopping centres and be in crowds completely. Nor would her depression cause her to be unable to drive.

Evidence of Doctor Michael Beinart

154 Dr Beinart is a medical practitioner who has practised in the area of occupational health for over 25 years.

155 He saw the plaintiff on 7 December 2004 and 20 May 2005. As a consequence of those consultations he produced two reports dated 13 December 2004 and 25 July 2005 which may be found in Exhibit 14 between p 60 and p 69.

156 In his report dated 13 December 2004, Exhibit 14 p 60 to p 65 he said at p 62:

"Ms Williamson informs me that her left wrist remains significantly symptomatic and functionally limited. She reports that she is unable to move it or use it at all, and then it has almost no useful function. She is unable to take any strain on it, and pressure or loading the wrist results in a sharp shooting pain extending up the radial aspect of the left wrist. She is unable to grip things, even to brush her hair or hold a cup in that hand. She is able to use her fingers to steady things. In order to drive her vehicle she has to put a brace on and to put her clothes on. She is unable to do her bra up, she gets up at 5.30 every morning before her husband goes to work, so that he can assist in dressing her."

157 In his report dated 25 July 2005 (Exhibit 14, p 66 to p 69), Dr Beinart stated at p 66:

" ... she reported no significant improvement in her condition since the initial assessment of 7 December 2004. She stated that the level of functioning in her left hand had not significantly changed and if anything, she was now more depressed and experiencing suicidal ideation.
Ms Williamson stated she experiences constant sharp pains situated in the left wrist area and that her left hand remains swollen. She stated that the hand often felt cold and would have a whitish colour. She reported she experiences pain in the forearm with any wrist movement and the pain was maximal at the right thumb base. She describes the pain as sharp and severe."

158 Ms Williamson, in her evidence, did not dispute that she had given this history to Dr Beinart.

159 According to Dr Beinart, the plaintiff described what happened on 24 July 2004 as the door "crushing her left wrist between it and the handle of the hoist".

160 The plaintiff "sustained a significant injury to her non-dominant left upper limb which he described as a "crush injury". He said that this injury has resulted in "a chronically inflamed painful upper limb" see Exhibit 14 p 64.

161 In his report dated 25 July 2005 he said Exhibit 14 at p 67:

"I consider the injury to be a significant crush injury and it has resulted in a chronic pain syndrome and major depression."

162 In his opinion the plaintiff has no capacity for work and no income earning capacity in the future.

163 In his evidence, Dr Beinart said that he did not believe that the plaintiff would be able to work as a carer or in any capacity for the foreseeable future because there was no work for an effectively single handed person.

164 In cross-examination, Dr Beinart said that although the plaintiff had some symptoms of complex regional pain syndrome he did not diagnose that syndrome.

165 Mr Beinart said he had seen some video surveillance footage.

166 When he was asked by Mr Clyne about the plaintiff's use of her left hand when driving, he said that he didn't observe her use the left hand in the footage that he saw. He said that if she had used her left hand when driving, based on what she reported to him, "she might have been able to do it once or twice or do it for – on occasion, but it would have resulted in severe pain and she wouldn't have continued with that activity according to her reported symptoms." (T200-T201).

Evidence of Doctor Ross Goodhart

167 Dr Goodhart is a specialist neurologist who has practised in that field for about 15 years.

168 Dr Goodhart saw the plaintiff on 21 June 2005, 24 September 2008 and 11 November 2008. In June 2005, after he had seen the plaintiff for the first time, he was given and viewed surveillance footage taken of the plaintiff in October 2004 and February 2005. On or about 24 October 2008 Dr Goodhart was provided with further surveillance footage taken on 28 and 29 November 2005, 31 December 2005, 20, 28 and 31 October 2006, 15, 16 and 19 February 2007, 26 March 2007, 10 January 2008, 27 February 2008, 5 March 2008, 26 and 28 May 2008 and 5 June 2008.

169 Dr Goodhart provided a number of reports dated 21 June 2005, 28 June 2005, a second report dated 28 June 2005, 28 July 2005, 24 September 2008, 28 October 2008 and 11 November 2008. These reports are contained in Exhibit 14 between p 15 and p 34.

170 Dr Goodhart diagnosed the plaintiff as suffering a soft tissue injury to her left hand particularly in the muscle region at the base of the left thumb. He found no specific evidence of an accompanying neurological injury. Specifically he found that the plaintiff was not suffering with a specific radial or median neuropathy nor was she suffering with a significant neck radiculopathy. He concluded that the plaintiff was not found to have a complex regional pain syndrome.

171 In Dr Goodhart's report dated 28 June 2005 he described her left handed symptoms as follows:

"At the time of my review she was troubled by relatively constant pain over the palmar aspect of the wrist. She also experienced pain in the dorsum of the wrist particularly over the radial side. She described a pain in the thumb which could radiate into the radial border of the forearm. Twisting movements of the hand could exacerbate this pain. She found that tasks such as undoing buttons could exacerbate her wrist pain.
In addition, Mrs Williamson described a tendency to numbness of the thumb and second finger. There could be a nocturnal predominance of numbness.
Mrs Williamson described a continued weakness of grip strength and with the pincer grip between the thumb and index finger. Activity within the hand could exacerbate pain around the elbow and the upper arm muscles. There was some accompanying neck pain."

172 On examination Dr Goodhart found that the plaintiff was tender to palpation over the dorsal and palmar aspects of the wrist in the region of the carpal-tunnel. He said there was give way weakness on testing the power in relation to the left thumb and index finger.

173 At the consultation on 24 September 2008 Dr Goodhart noted:

"Ms Williamson described an increase in symptoms over a period of years. She was troubled by left handed discomfort. She described 'electric shocks' which could radiate from the region of the second metacarpal into the index finger. These symptoms could be precipitated by use of the hand. She described the constant loss of sensation in the region between the index and middle fingers of the left hand. There was a constant pain in the left metacarpal region, this could radiate towards the proximal phalanx thumb. Intermittently, she noted a loss of sensation in the thumb and index finger.
Mr Williamson described sweatiness of the palm of the hand. There could be a slight colour change.
Ms Williamson described constant pain in the left wrist region. This could be precipitated by use of the fingers."

174 Dr Goodhart also noted that the plaintiff was troubled by bilateral shoulder discomfort and intermittent pain at the right elbow.

175 Dr Goodhart noted at his consultation with the plaintiff on 11 November 2008 that there had not been any significant change in her symptomology since 24 September 2008.

176 With respect to the video taped surveillance, Dr Goodhart said that the footage was consistent with her presentation on the occasions that he had seen her.

177 In Dr Goodhart's opinion, the plaintiff is partially incapacitated for work due to the symptoms she experiences in her left wrist. Further, her inability to work has been complicated and contributed to by what he described as her "significant depressive illness". In his opinion the plaintiff's left hand symptoms will persist for the foreseeable future and that her return to work was dependent upon her response to treatment for her depression.

178 In his evidence Dr Goodhart said that there was no real treatment available to the plaintiff. He said that the correct management of her injury involved striking a balance between overusing her wrist and bringing on the symptoms and under using it which may result in a disuse atrophy of the hand.

179 Dr Goodhart said that given that she was experiencing discomfort in her left hand four years after it was injured he thought that discomfort would remain indefinitely with only a 5 per cent chance that it would improve over the next five years.

Evidence of Eng Hok Lim

180 Dr Lim is a general practitioner who has been in general practice in this country since 1974. He said that he has been the plaintiff's general practitioner since around 1987. He saw her on numerous occasions after the date of the accident, not only in relation to the injuries that she sustained but also in relation to other matters. A number of reports written by Dr Lim were tendered in evidence being reports dated 7 and 13 November 2004, 2 February 2005, 25 March 2005, 4 July 2005, 4 November 2008 and 7 November 2008. In addition letters sent by Dr Lim to two physiotherapists each dated 11 August 2004 were tendered. The reports and letters written by Dr Lim can be found in Exhibit 14 from p 3 to p 14.

181 After the plaintiff consulted Dr Lim on 27 July 2004, Dr Lim arranged for the plaintiff's left wrist to be x-rayed. The x-rays revealed no bony injury. He arranged for swelling in the wrist to be aspirated and for a cortisone injection to be done, neither of which apparently brought any relief.

182 Dr Lim arranged for a brace to be fitted on the plaintiff's wrist. In her evidence the plaintiff said that she wore the brace on occasions but found it uncomfortable. As a result she did not always wear it.

183 Dr Lim referred the plaintiff to Dr Hales, an orthopaedic surgeon, who in turn referred her to Dr Allison.

184 In early 2005, Dr Lim noted that the plaintiff's left wrist pain was getting worse and she complained of right lateral epicondylitis (tennis-elbow).

185 Over time, Dr Lim noted some improvement in the pain and movement of her left hand and wrist but, he noted that the plaintiff became depressed and in October 2006 she developed right should abduction pain caused by subacromial bursitis.

186 In 2008 he noted the plaintiff's symptoms as (Exhibit 14 p 13):

"Depression
Cannot open car with left hand: she holds heavy objects with her hand.
She can turn door handles and knobs without pain.
She pushes trolleys with one hand at shopping.
She said she needs some help with her dressing provided mainly by her daughter.
No mopping or vacuuming.
(She can) use microwave with bought pre-prepared foods
No gardening
She can hold and use left hand with light things.
She can pick up food.
Carries things using left forearm and gripping the elbow against her chest wall.
There is some soreness or abducting the shoulders above 90 degrees. She cannot hang up clothes on the clothes-line.
She does not iron
Her daughter changes the linen in the house.
Meat is cut up for her or she uses the fork to cut up softer foods.
She can open car doors but uses the third to fifth digits to hold them and pull open the doors.
She carries the shopping bag with the proximal part of the left forearm near to the elbow."

187 Dr Lim was of the view that the plaintiff would require various analgesics and antidepressants into the future.

188 Dr Lim viewed some of the surveillance footage. He did not think what was shown on the surveillance footage that he saw was inconsistent with the plaintiff's symptomology.

189 In cross-examination Dr Lim was referred to a medical report that he completed in support of the plaintiff's application for a disability support pension. This document is Exhibit 10 and was signed by Dr Lim on or about 1 July 2008. In that document Dr Lim diagnosed the plaintiff is suffering from depression and left handed tenosynovitis. This tenosynovitis is known as De Quervain's syndrome and is not accident related. Dr Lim noted in the document that the plaintiff had a past history of injury to the wrist. In evidence he confirmed that this was the injury sustained by the plaintiff on 24 July 2004.

190 Dr Lim noted in a consultation he had with the plaintiff on 14 November 2007 that the plaintiff was suffering from a number of conditions including De Quervain's syndrome, depression, bilateral shoulder bursitis, arthritis of the left ankle and cervical spondylosis.

191 On 19 June 2007 Dr Lim noted that the plaintiff was having problems in both wrists and shoulders.

192 Dr Lim confirmed that apart from the conditions I have already mentioned, the plaintiff was suffering from hypertension, diabetes, arthritis in the hand and shoulders and probably in the knee. Dr Lim agreed that he certified that the plaintiff was suffering from these conditions in a health professional assessment form signed by him on 22 May 2008: Exhibit 17.

Evidence of Tammy Williamson

193 Tammy Williamson's evidence was mostly directed to the plaintiff's claim for gratuitous services.

194 She said that after her mother was injured she assisted her in everyday duties such as cleaning, helping her with her showering and dressing, cutting her food. She said that amongst other things, her mother could not lift a mug.

195 Ms Williamson said that she went to her mother's place every day typically arriving around 8.30 am and that she would stay all day.

196 In cross-examination she said that when her mother was injured she was living at her parent's home and that she helped out with household chores for the whole of the family. I think it was evident from that cross-examination that much of what she did was for the benefit of herself and other members of her family.

197 Ms Williamson said that she took care of her mother from about 8.30 am in the morning until late in the afternoon. She said in cross-examination that she was a full-time carer for her (T243).

198 Ms Williamson said that she was living at home from the time of the accident up until three months before her daughter Tia was born in August 2006. However she said that she drew a full-time carer's pension for her former partner Michael Deliu for about a year commencing sometime prior to November 2005. I do not see how she could be a full-time carer for both her partner and her mother. The surveillance evidence suggested that she was not a full-time carer for her mother.

Defendant's doctors and other experts

199 The defendant called the following doctors and other experts.

Evidence of Joan Perks

200 Ms Perks is a rehabilitation consultant and has worked in that capacity since 1987. She said in her evidence that the plaintiff agreed to a return-to-work program to commence on 11 October 2004. The plaintiff agreed to escort residents to Bingo sessions twice weekly for two hours per day: Exhibit 23.

201 According to Ms Perks on 8 October 2004 she met with the plaintiff at Castledare. She said that the plaintiff complained of being in great pain. Ms Perks said that the plaintiff told her that she hadn't taken any analgesia that day because it affected her driving. She said that she sent the plaintiff home.

202 Ms Perks gave evidence based on her contemporaneous notes. Her notes made no mention of an unsuccessful attempt on the plaintiff's part that day to take a patient to Bingo and she said that she had no independent recollection of that occurring.

203 She spoke with the plaintiff on a number of occasions after the work trial. Ms Perks noted on 14 December 2004 that the plaintiff was very upset and tearful and she suggested that the plaintiff ought to see a clinical psychologist.

204 On 28 February 2005 she spoke to the plaintiff and noted that the plaintiff had told her that both her arms were useless (T392).

Evidence of Doctor Mark Lethbridge

205 Dr Lethbridge is an occupational physician who was called by the defendant. He has practised as a specialist occupational physician since 1989. He saw the plaintiff on 12 December 2005, 26 March 2007 and 26 May 2008.

206 Dr Lethbridge was provided with surveillance video of the plaintiff taken on 28 and 29 November 2005, 1 December 2005 and 15, 16 and 19 February 2007.

207 Dr Lethbridge wrote four reports all of which are contained in Exhibit 27 and are dated 12 December 2005, 26 March 2007, 30 March 2007 and 26 May 2008. It is evident from Dr Lethbridge's report dated 12 December 2005 that he took a detailed history from the plaintiff. That history included her previous work related injuries, he also noted that the plaintiff had an episode of depression between January and March 2004 relating to issues she had with a co-worker. Dr Lethbridge thought that it was of interest that on 24 July 2004 she worked, with the co-worker who had apparently caused her problems earlier that year.

208 Dr Lethbridge undertook a comprehensive physical examination of the left wrist and hand. He noted no physical signs of injury. The plaintiff described marked tenderness to light touch in a semi-circle centred on the radial aspect of the left wrist and demonstrated a reduction in the range of movement of the left wrist as well as give way weakness of grip and grasp. She described wrist extension and radial deviation as the most painful manoeuvres and said she had difficulty of placing the thumb of her left hand to the fingers of that hand.

209 Dr Lethbridge had been provided with, at the time of his initial consultation with the plaintiff many medical reports including reports from Dr Lim, Dr Allison, Dr Ng, Dr Goodhart and Dr Beinart. He had also been provided with the x-rays, ultrasound, MRI and nerve conduction studies relating to the plaintiff's left hand, see Exhibit 32 p 58 to p 65.

210 It appeared to me that Dr Lethbridge had undertaken a very careful preparation for his consultation with the plaintiff and that whilst with her he took a detailed comprehensive history and conducted a careful examination of her. His opinion as expressed in his report, to which I will refer shortly, appeared to me to be fair, carefully considered, well reasoned and in the end, compelling.

211 In his report dated 12 December 2005, Dr Lethbridge said at Exhibit 27 p 7:

"I felt that there was poor correlation and general inconsistency between the history provided, examination findings and the results of investigation.
The described mechanism of injury of 24 July 2004 was relatively minor in nature, with no evidence of any resulting significant trauma. As such, one would expect any soft tissue injury arising from this incident to have long since resolved.
In support of this view I note that a range of investigations undertaken to date including plain x-rays, ultrasound, MRI and nerve conduction studies do not reveal pathology which would readily explain the nature, severity and duration of her symptoms."
Occupational physicians tend to assess injuries from the view point of a biopsychosocial model. In this case, I see little evidence of any significant physical pathology which would explain her presentation, but marked evidence as social and psychological contributors which have been detailed above, most notably the history of interpersonal conflict with a co-worker just prior to the described incident, and her response to past work related injuries is demonstrates by the claims of 1987, February 1999 and August 2000.
It is well accepted that job dissatisfaction and interpersonal conflict with a line manager or co-worker can prejudice recovery in a successful term to work outcome following injury. Similarly, her past medical history indicates that past work injuries have led to protracted periods of work absence, an inability to resume pre-accident duties and settlements of means of finalisation of the claim.
I can see a strong correlation between her past medical history and her response to this injury over the past 16 to 17 months."

212 From a musculoskeletal viewpoint, he could see no reason why the plaintiff could not resume her pre-disability duties as a carer. He could not see any objective grounds on which to restrict her hours or duties of work. He went on to say at Exhibit 27 p 8:

"Her past medical history in relation to prior claims suggests the fairly rapid resumption of work following claim settlement after a protracted period of incapacity. As has been noted above she was off work for a 2 to 3 year period following the neck injury of 1987. From available documentation, this claim was settled in or about November 1990 with Ms Williamson subsequently returning to the workforce as a cleaner soon thereafter."

213 In his report dated 26 March 2007 having seen her that day he noted that she "continued to describe quite profound limitation of function". She told Dr Lethbridge, amongst other things, that she was unable to lift a cup of coffee using her left hand and that driving was difficult. She told Dr Lethbridge that she used only her right hand to turn the steering wheel while her left remained in her lap.

214 In this report he said that he remained of the view that her presentation was inconsistent with the relatively minor nature of the injury she sustained in the absence of evidence of any significant traumatic injury. He said that he found it inconsistent that the plaintiff continued to drive a motor vehicle in the manner she describes and apparently requires assistance with a broad range of simple activities of daily living. He also found it unusual that despite demonstrating very little spontaneous movement of her left upper limb and a tendency to sit with the left arm fairly immobile in her lap there was no evidence of significant muscle wasting or atrophy when he compared arm and forearm circumferences of her two upper limbs.

215 After Dr Lethbridge reviewed the plaintiff on 26 May 2008 his opinions of the plaintiff's presentation remained unchanged.

216 Dr Lethbridge was provided with some of the surveillance footage taken on 28 and 29 November 2005, 1 December 2005 and 15, 16 and 19 February 2007.

217 In Exhibit 27 at p 17 he said:

"While the surveillance video does not show her lifting or carrying heavy items in her left hand or demonstrating forceful or prolonged grip it does include the following:

• She can use the left hand to hold various items including mail, keys, items of clothing and on one occasion a small dog
• She was not observed to hold the left upper limb immobile
• She swung her left arm freely when walking and used the left to point in gesture
• She drove a motor vehicle on a number of occasions, drove her daughter on several occasions instead of travelling as a passenger, opened and closed the car door using her left hand: used both hands to turn the steering wheel and, on one occasion, steered the vehicle using only her left hand while holding a burger in her right
• She demonstrated pinch in dexterity while holding a screw and number plate with her left hand and a cordless drill with her right."

218 In his opinion, it was difficult to reconcile her reported limitations in relation to simple activities of daily living with the contents of the surveillance video.

Doctor Jonathon Spear

219 Doctor Spear is a consultant psychiatrist who has been practising in Western Australia since 1995.

220 He first saw the plaintiff on 9 December 2006. Subsequent to that, the defendants' insurers provided him with video surveillance tape from 13, 14, 19 and 20 October 2005, 22, 25 and 28 February 2005, 28 and 29 November, 1 and 31 December 2005. Dr Spear saw the plaintiff again on 11 April 2008. After this consultation Dr Spear was provided with more surveillance video tape from 20, 26, 27 and 31 October 2006, 15, 16 and 19 February and 26 March 2007, 10 January, 27 February, 26 and 28 May and 5 and 10 June 2008.

221 Dr Spear wrote four reports dated 20 December 2005, 16 May 2006, 21 April 2008 and 11 September 2008. These reports were contained within Exhibit 28.

222 At her first consultation with Dr Spear she reported reduced concentration, intolerance of crowds, fatigue and a tendency to be "moody with everybody".

223 However, after Dr Spear was provided with the surveillance video tapes commencing from 13 October 2004 up to 31 December 2005 he reached the opinion that those tapes showed activity inconsistent with a history given to him by the plaintiff at their meeting on 9 December 2005. In his report dated 16 May 2006 (Exhibit 28 p 10):

"The video surveillance tapes are inconsistent with the history given to me by Ms Williamson on 9 December 2005 in that there is no evidence during the surveillance videos of reduced concentration, no evidence of intolerance of crowds, she does not appear to be fatigued and she does not appear to be 'moody with everybody'. On the contrary, she appears to have normal social interactions with her companions and with retail staff. There is no evidence of social anxiety in crowded places. There is no evidence of forgetfulness and she appears able to carry out her normal daily activities efficiently and effectively.
The surveillance video tapes and reports indicate Ms Antoinette Williamson was not suffering from major depressive disorder during the periods of surveillance and, on the basis of the evidence provided, in my opinion, from a mental health perspective, Ms Antoinette Williamson is capable of work as a carer."

224 Later on the same page of his report, Dr Spear said:

"The inconsistency between the surveillance reports and the history given to me by Ms Williamson suggest that Ms Williamson may have consciously or unconsciously exaggerated the impact of any mental health symptoms on her ability to work and carry out normal day to day activities."

225 Following the plaintiff's consultation with Dr Spear on 11 April 2008, Dr Spear diagnosed recurrent and chronic major depressive disorder (Exhibit 28 p 17). He said it was unclear whether this depressive disorder is the result of her alleged work injuries. While he did not discount that her depression was caused in someway by her employment, which I took to mean, her alleged injury, he thought there were probably more significant causes for her depression. At Exhibit 28 p 18 in his report dated 21 April 2008 he said:

"Probable significant causes of her major depressive disorder appear to be her history of major depressive disorder, which will may her vulnerable to have both the current episode and future episodes of when exposed to stress. In addition she suffered from childhood adversity and appears to have a personality vulnerability, including low self-esteem and there is also the possibility of secondary gain issues, given that her daughter visits daily to assist her with self care and to carry out domestic duties. In addition she has complex medical problems including diabetes, hypertension and hypercholesterolaemia that may contribute to her mental health condition."

226 He went on to conclude at Exhibit 28 p 19:

"Given her history of previous episodes of depression resolving once the claim has been resolved, then I would expect her condition to improve or resolve once the claim has been resolved."

227 In his final report dated 11 September 2008, after viewing more video surveillance, he said at Exhibit 28 p 24 that he could see no evidence that the plaintiff was being affected by the consequences of the alleged injury on 24 July 2004 but it was possible that she had ongoing depression because of the other factors which he referred to in his report dated 21 April 2008.

228 In cross-examination Dr Spear said that at his consultation with the plaintiff on 11 April 2008 she indicated "a pretty severe level of depressive disorder" (T463). He found that her presentation was "very inconsistent" with the history that she had given him having regard to the video surveillance material.

229 When asked whether the plaintiff said she had good days and bad days, Dr Spear replied that she told him that "everyday is the same" (T466).

230 Doctor Spear maintained throughout cross-examination that she presented to him as being severely depressed and that, according to him, someone who was as severely depressed as the plaintiff would not have been able to function at the level shown in the surveillance tapes.

231 In the end, Dr Spear was of the view that the plaintiff probably does have depression but not as severe as it was expressed to him (T474).

Doctor David Mark Allison

232 Mr Allison is a plastic surgeon who specialises in hand and wrist surgery. He has specialised in this area for 20 years.

233 He first saw the plaintiff on 29 October 2004 and later on 24 February 2005 and 10 June 2008. The defendant's insurers provided him with video surveillance tapes sometime prior to 30 May 2005 and again sometime prior to 18 October 2005.

234 Mr Allison's reports are contained in Exhibit 29. Those reports are dated 29 October 2004, 24 February, 30 May, 7 June, 18 October 2005 and 10 June 2008.

235 In his report of 24 February 2005 he said "it would seem unlikely that the injuries described would cause this pain".

236 Amongst the videos that were given to Mr Allison prior to 30 May 2005 was the re-enactment video. In his report dated 30 May 2005 he said that, presuming that the re-enactment is accurate, he noted that the door closed very slowly and he thought it would be very difficult to actually sustain the injury as the plaintiff described it. In the same report Dr Allison thought that the plaintiff was "at the very least exaggerating her symptoms". In his report dated 10 June 2008 he said:

"I do not believe the blow to her wrist four years ago has directly led to [her] present symptoms but, it may have triggered them off because of her psychological state."

237 In examination-in-chief Mr Allison said that given the level of pain claimed by the plaintiff he would have expected the forearm muscles in the left arm to have wasted (T480) but there was no evidence of muscle wasting.

Doctor Victor Cheng

238 Doctor Cheng is a consultant psychiatrist with 8 years experience.

239 He first saw the plaintiff on 15 December 2005 and then on 5 June 2008. He wrote two reports dated 15 December 2005 and 5 June 2008. Both reports are contained within Exhibit 30.

240 In the consultation on 15 December 2005 the plaintiff told Dr Cheng that she left the house once a week with her daughter to go and do the groceries. She also told Dr Cheng that she felt anxious, nauseated and lightheaded in a crowd.

241 In his report dated 15 December 2005 he diagnosed the plaintiff as suffering from a pain disorder associated with both psychological factors and a general medical condition which, he said, has been complicated by major depressive episode. At p 9 of his report dated 15 December 2005 (Exhibit 30, p 9) he said:

"Ms Williamson described pain in her wrist which appeared to significantly limit her function. It would appear from the collateral information that the physical injury has not been severe enough to entirely account for her complaints of pain and therefore psychological factors are likely to have been important in the onset and perpetuation of her pain. The focus of Ms Williamson's presentation and ongoing inability to work, revolves around her complaints of pain. Therefore the diagnosis of her pain disorder is appropriate."

242 He went on to say at p 10:

"Ms Williamson also described significant depressive symptoms. She stated that she also had feelings of worthlessness and had suicidal ideation with overdose of her analgesic medications. She stated that her concentration and impairment was worse than normal as well as initial insomnia. On mental state examination she appeared to be despondent and was tearful at times.
Therefore a diagnosis of a major depressive episode has pursuant to DSMIV is appropriate given her level of symptoms."

243 In his report dated 5 June 2008 Dr Cheng's diagnosis was major depressive episode.

244 As to whether this condition was suffered as a result of the injury on 24 July 2004, Dr Cheng said at Exhibit 30 at p 27 and p 28:

"Whether the psychiatric condition suffered by Ms Williamson is related to her employment or not would depend on whether or not her current physical symptoms were felt to be a result of her employment.
Ms Williamson does not appear to have suffered a psychological injury as a direct result of the incident at work. The incident at work does not appear to have left her with any emotional trauma.
Ms Williamson's symptoms are the result of her complaints of pain as well as restrictions in activities as a result of her various medical problems. Whether or not this is a related incident would depend on whether or not it is felt that her physical conditions were related to her employment. I am not optimally qualified to make this determination ..."

245 In his first report, Dr Cheng said that while the accident of 24 July 2004 was significant in terms of precipitating the current episode he thought that the predominant cause of her then psychological symptoms was a pre-existing history of similar psychological symptoms in the context of workers' compensation claims, previous history of major depressive episodes and a personality vulnerability due to adverse developmental history (T498).

246 In examination-in-chief and cross-examination, Dr Cheng thought that the plaintiff had some vulnerabilities which supported the notion that some psychological factors were involved in the production of her pain. Specifically, he said, people with major depression can complain of more pain than can be explained by their pure physical condition (p 497 and p 506 of the transcript).

247 Doctor Cheng expressed the opinion in his reports that it was unlikely that the plaintiff's psychological symptoms would settle until this claim is resolved. He based this opinion upon Ms Williamson's past history and in particular that her psychological symptoms had resolved upon resolution of her prior compensation claims. Doctor Cheng did not resile from that position in his cross-examination.

The video surveillance material

248 The defendant's insurers arranged for the plaintiff to be placed under video surveillance. The DVDs of this surveillance were played in her cross-examination.

249 All told, there were seven discs which were admitted into evidence as Exhibit 6.1 to Exhibit 6.7. Each disc covered a specific period of surveillance as follows:

Exhibit 6.1 13 to 22 October 2004

Exhibit 6.2 23, 25 and 28 February 2005

Exhibit 6.3 28-29 November 2005, 1 December 2005, 31 December 2005, 20, 26, 27 and 31 October 2006

Exhibit 6.4 15, 16 and 19 February 2007 and 26 March 2007

Exhibit 6.5 10 January 2008

Exhibit 6.6 27 February 2008

Exhibit 6.7 26 and 28 May 2008 and 5 and 10 June 2008.

250 The aim of this evidence was to show that the plaintiff has exaggerated her symptoms as she described them to the various medical practitioners that she consulted and this Court.

251 The plaintiff's credibility is a critical factor in the assessment of damages. The medical practitioners called in support of her case, all agreed that their opinions were based on an acceptance of what the plaintiff told them as to her pain and disability. Her case was that she was truthful in her consultations with the medical practitioners and in her evidence. The defendant's case was that she was not frank with the doctors and the Court. The defendant in support of its submissions concerning the plaintiff's credibility relied heavily upon the surveillance videos to which I have already referred.

252 The videos were played to the plaintiff in the course of her evidence. In total they last about 5½ hours and were taken on various days commencing on 13 October 2004 and finishing on 5 June 2008. I have, since the conclusion of the trial, reviewed all of the surveillance material.

253 In general terms, it shows that the plaintiff engaged in a number of activities on a number of occasions. The kinds of activities which were recorded include:

(a) going to her mailbox and picking up her mail;

(b) speaking to friends and relatives at the front of the house;

(c) driving several motor vehicles;

(d) attending at various shopping centres and shops;

(e) taking family members on a trip to Rockingham;

(f) going to Royal Perth Hospital;

(g) driving at various points in the Perth Metropolitan area;

(h) going to a fast food outlet;

(i) going to a licensing centre;

(j) attending doctors appointments; and

(k) carrying a small frisky dog.

254 There was no issue relating to the identification of the plaintiff in the surveillance footage.

255 The defendant on 2 December 2008 filed a document entitled "Defendant's Comments on Surveillance Log" which was 14 pages in length and exhaustively analyses the surveillance footage. The descriptions in the surveillance log are brief, but in my opinion they accurately describe what is shown on the footage.

256 The plaintiff in her evidence and in her consultations with the medical witnesses called on her behalf, has consistently maintained that she is in constant pain and that pain has very much limited what she can do with her left hand. Certainly, according to her, she is unable to work either as a carer or in any clerical capacity. She said in her evidence that she does use her left hand and she is able to complete tasks which do not require her to put any weight on her hand and she avoids tasks which involve a pincer type movement using her left thumb and index finger.

257 I was mindful when watching the video surveillance footage that although it went for 5½ hours, I was looking at 5½ hours over a period of almost 4 years. I am also aware that individuals have good days and bad days. Further, the plaintiff has received a lot of medical treatment with respect to her left wrist over the years and that treatment has had some beneficial effect on the plaintiff. I am also aware that individuals can become used to constant pain, at least to the point where they do not always exhibit signs that they are actually in pain.

258 Mr Clyne, submitted that the surveillance footage showed that the plaintiff had much better use of her left hand than she was prepared to admit either in evidence or to her doctors. He also submitted that the surveillance footage showed that she was not as depressed as she has stated.

259 Finally, when reviewing the surveillance footage, I remained aware that the plaintiff is right handed and therefore more likely to favour the use of that hand.

260 Some of the activities shown on the footage and noted on the defendant's log whilst accurate in their description were in reality trivial. For example, in the defendant's log there are a number of occasions in which it is recorded that the plaintiff when carrying a bag on her right shoulder momentarily pulls or adjusts the bag using her left hand. There were other occasions in which the plaintiff is shopping and reaches for items on the shelves which are basically level or lower than about hip height and momentarily touches or looks at such items.

261 However, the surveillance videos reveal some disturbing inconsistencies. They are as follows:

1. On 29 October 2004, the plaintiff saw Dr Allison. He described her as holding her wrist stiff and that he could not get the plaintiff to move it. The video footage taken on 14, 20 and 22 October 2004 shows the plaintiff moving her left wrist while shopping and driving.
2. On 7 December 2004 the plaintiff saw Dr Beinart. She told Dr Beinart that she was unable to move or use her left wrist at all and that it had almost no useful function. These statements are contradicted in the footage taken in October 2004 and subsequently in February 2005.
3. On 24 February 2005 the plaintiff again saw Dr Allison and once again she held her wrist stiff. On 23 February 2005 she was filmed at an ATM and at her car using her left hand. On 25 February 2005 she was filmed over some time shopping and driving. She can clearly be seen using her left hand.
4. On 28 February 2005 she told Joan Perks that both her arms were useless. She can be seen on 28 February 2005 in surveillance footage using both her arms.
5. On 9 December 2005 she reported to Dr Spear intolerance and anxiety in crowded places. She told him she was able to go shopping when accompanied by her daughter.

On 12 December 2005 she told Dr Lethbridge that she could drive in her local area.

On 15 December 2005 she told Dr Cheng that she left the house once a week with her daughter to do the grocery shopping.

Surveillance footage taken of the plaintiff on 28 and 29 November 2005 and on 1 December 2005 contradicts all these statements. She shops by herself, drives outside her local area and leaves home more than once per week to shop.

6. On 26 March 2007 she told Dr Lethbridge that she drove using only her right hand to turn the steering wheel while her left hand remained in her lap. Surveillance footage taken on 26 March 2007 reveals her using both hands to drive her vehicle. Indeed, she was filmed using both hands driving on other occasions including on 19 February 2008. Dr Lethbridge noted on 26 March 2007 that the plaintiff showed very little spontaneous movement of her left upper limb. The surveillance footage generally shows a number of instances where she spontaneously used her left upper limb.
7. On 14 April 2008 she told Dr Spear that she drove her car one-handed (meaning her right hand). On 26 May 2008 she was filmed driving her vehicle using what appears to be her left wrist.

Findings

262 There is no doubt that the plaintiff suffered a soft tissue injury on 24 July 2004. I think the external manifestation of this injury was a graze rather than a cut but nothing turns on this. The plaintiff's left wrist has been the subject of extensive examination. There is no evidence of any injury whatever to the bones or nerves of the plaintiff's left wrist and hand. There is no evidence of any lasting injury to the tissues of the plaintiff's left wrist and hand. There is no evidence of a significant crush injury as reported to Dr Beinart.

263 In my opinion, the evidence supports only that the plaintiff suffered a very minor injury to her wrist on 24 July 2004.

264 I have come to this conclusion based on:

(a) Dr Lim's initial observations of the plaintiff's injury on 27 July 2004 which is consistent with the observations made by Ms Kilcullen and Ms Bremer shortly after the accident occurred;

(b) The complete absence of any findings on any diagnostic tool including ultrasound, x-ray, nerve conduction studies and MRI.

265 In the normal course, such a minor injury heals within, to use Dr Lethbridge's words at p 416 "within a short space of time". Although Dr Lethbridge was not asked to define that short space of time, it seemed to me that he was talking in terms of weeks because in cross-examination he was asked whether soft tissue injuries generally resolve relatively quickly to which he replied "generally within four to six weeks if you are talking about things like sprained ankles and such, yes" (T434).

266 The plaintiff's claim for damages relies very much upon my assessment of her credibility with respect to the pain and various disabilities she claims to suffer. I am alive to the possibility that the plaintiff may have suffered an injury which has caused her a great deal of pain and considerable disability which, despite all efforts, remains undiagnosed.

267 Unfortunately for the plaintiff, I cannot accept, on the balance of probabilities, her evidence as to the level of pain in her left wrist and hand nor do I accept her claims with respect to her incapacity as a result of that injury.

268 I am unable to accept her evidence to the required standard because, in my opinion, she has consistently exaggerated her pain and incapacity.

269 I accept the opinion of Dr Lethbridge that the plaintiff's reported limitations in relation to the simple activities of daily living were inconsistent with the activities showing on the surveillance material. I also accept Dr Spear's opinion expressed in his report dated 16 May 2006 that the surveillance tapes he saw showed behaviour inconsistent with the history given to him by the plaintiff on 9 December 2005. I further accept Dr Allison's evidence that the history she gave him was inconsistent with his clinical findings and what he saw on video surveillance.

270 My own observations of the surveillance material, bearing in mind that material has limitations does, in combination, show a greater capacity to engage in the normal activities of life outside the home than the plaintiff portrayed in her evidence.

271 There was no evidence of muscle wasting in her lower left limb indicative of the limb being used less than normal.

272 The plaintiff's tendency to exaggerate has led me to the conclusion that the history she gave to the doctors she consulted concerning her pain levels and capacity is unreliable.

273 Because the plaintiff was, in my opinion an unreliable historian, I prefer the evidence of Dr Lethbridge and Dr Allison over the evidence of Dr Beinart and Dr Goodhart.

274 Based on the evidence of Dr Lethbridge and Dr Allison, in my opinion the soft tissue injury sustained by the plaintiff to her left wrist would have resolved within a short time of the accident on 24 July 2004. I do not think that the injury has caused long term physical or psychological damage.

275 With respect to the plaintiff's psychological condition I accept that the plaintiff currently suffers from major depression. The onset of this bout of depression was probably about December 2004. However, by that time, I think that it is more likely than not any symptoms from the minor injury she sustained on 24 July 2004 had gone.

276 I think it is significant that the plaintiff herself said in her evidence at (T28) that she began to experience pain in her shoulders a few months after the accident. It is evident, that in 2005 she developed significant pain in her shoulders and right elbow. It has not been suggested that these things were caused by the accident on 24 July 2004. The problems that she encountered in her shoulders and right elbow still afflict her as do a number of other conditions identified by Dr Lim in his evidence.

277 Dr Spear did not think that her alleged work injury was a significant cause of the plaintiff's depression. I have already quoted from his report at Exhibit 28 p 18 where he sets out those causes which he regards as being more significant than her alleged injury.

278 I think it is also significant that Dr Cheng thought that her psychiatric symptoms were as a result of her various complaints of pain as well as restrictions in activities as a result of her various other medical problems. I prefer the opinions of Dr Spear and Dr Cheng over Dr Ng. In my view Dr Ng's conclusions have been tainted by the plaintiff's tendency to exaggerate and because in my view the injury would have resolved by December 2004.

279 I accept that currently, the plaintiff is unable to work in any capacity. This is because of her current poor physical and mental health. However, her inability to work is not in any way due to the consequences of the accident on 24 July 2004.

280 I will now summarise my findings on the question of damages. The plaintiff suffered a minor soft tissue injury on 24 July 2004 which had no long term physical or psychological consequences. There would have been a period where she suffered some pain and inconvenience for which she is entitled to modest compensation. I do not think that the injury prevented her from working save for a short period after 24 July 2004. The plaintiff has not made out her various claims including claims for past and future loss of income and superannuation benefits nor has she made out her claim for gratuitous services. As to that head of damage, I found the evidence of Tammy Williamson unconvincing in any event.

281 In the circumstances, I consider the plaintiff is entitled to a modest award of $7,500 in relation to her claim.

Conclusion

282 I propose to make the following orders:

1. The plaintiff's claim against the defendant is dismissed;
2. The plaintiff pay the defendant's costs to be taxed if not agreed.