WCRA: Facebook & surveillance skeletons slash damages award

Digby v The Compass Institute Inc and Anor [2015] QSC 308

It was accepted the plaintiff was injured at work on 18 June 2008. The circumstances of the injury were unusual. The institute provided services to student trainees who were intellectually and physically impaired. The Plaintiff was employed by the institute as a carer for the student trainees. The institute arrange for the police to attend with a safety presentation for the trainee students of the institute, many of who were susceptible by reason of their disabilities to being alarmed or distressed by loud noises, especially sirens.

There was much contention as to whether a warning was given by the police officer before activating the siren as part of the demonstration. Ultimately, the trial judge preferred the evidence of the police officer that a warning was given. Nevertheless, as a result of activating the siren one of the student trainees began to fall after being startled by the siren and the plaintiff went to catch him, and in the process injured her right shoulder.

The trial judge found the institute were liable to the plaintiff as her employer because they failed to plan the exercise by the police or supervise the trainee students. The State of Queensland was not found to be liable for the actions of the police officer and the claim against them was dismissed.

In coming to the conclusion that the institute was liable as against the employer, the trial judge allowed a very late amendment to the plaintiff’s statement of claim after the plaintiff’s evidence and other employee evidence had been given. The basis for it was that it reflected the evidence at trial and Her Honour’s finding that the institute did not suffer any prejudice.

The plaintiff’s claimed centred on a debilitating right shoulder injury which had morphed into an uncontrollable tremor of her right hand, together with a psychiatric condition. However, what transpired following the damages claim was marked exaggerated conduct and presentation by the plaintiff, which further unravelled when an order was made during the trial to the plaintiff that she “friend” the defendants legal representatives; so investigations could be made of the plaintiff’s Facebook account.  The use of the surveillance and the Facebook account resulted in significant inroads into the credit and candour of the plaintiff, sinking what otherwise would have been a substantial claim for damages.

It became clear to the trial judge at an early stage the candour of the plaintiff was in doubt, because when the plaintiff was asked by her counsel to mark an exhibit her uncontrollable tremor ceased. This was amplified by the surveillance which demonstrated the plaintiff failed to exhibit the notorious right hand tremor and remarkably was able to smoke and navigate cigarettes into her mouth with ease and precision.

The plaintiff’s Facebook account revealed she had hundreds of “friends”, which required maintenance of several hours at time, several times a week. The chain of ‘posting’ conversations evidenced that not only was this behaviour contrary to her psychiatric condition, but contrary to her uncontrollable tremor in her right hand.

The forensic benefit of the Facebook account was further revealed when it was discovered that there had been significant life events in the plaintiff’s life, including her son being abusive towards her, to the extent that she was frightened for her life. Furthermore, her son later attempted suicide on her medication, none which had was disclosed to the expert psychiatrists who saw her or indeed those treating the plaintiff.

These matters were put to the various experts, with substantial concessions granted, resulting in significantly reduced damages. It was accepted the plaintiff suffered 20% impairment of the right shoulder or 12% whole person impairment. Given the date of the injury an allowance was made at common law of $35,000.00, together with interest.

As for past loss of income, following the period of statutory workers’ compensation weekly benefits, a loss of $4.00 per hour was allowed, being the difference between that of a carer and administration worker ($120.00/week – $32,280.00).

The plaintiff was 39 years of age at the time of trial, having regard to the accepted evidence that the plaintiff was capable of work in administration, a conservative and modest global claim for future economic loss of $40,000.00 was allowed and not the weekly loss of $120.00. Superannuation was allowed at 11.33%.

There remains a decision on costs for the 10 day trial.

Atkinson J:

[31]          In summary, I conclude from the relevant evidence set out above that Ms Adermann spoke to Senior Constable Readman on the telephone once before he attended at the Institute.  It was arranged that he would give a presentation lasting about half an hour about protective behaviours and demonstrate the functions of a marked police car.  He agreed to warn the people at the Institute when the lights and siren were going to be activated.  Ms Adermann did not specify to Senior Constable Readman that he would have to wait while the staff removed or otherwise managed the safety of clients before he activated the siren.  Members of staff had not been thoroughly briefed on what to do with the trainees when the police officer gave the warning that he was about to activate the siren.  There was accordingly insufficient planning by staff of the Institute, given the vulnerability to loud noises of some of the trainees, as to precisely what to do once the warning was given.

[35]        Ms Digby’s account of what happened on 18 June 2008 was that a police officer arrived at about 1:30pm.  Ms Adermann said she met him at some point after he arrived.  Ms Digby said that some members of staff and trainees went upstairs into the dojo, where the police officer gave his talk for about half an hour.  She said there were about 25 trainees and only three staff members in attendance for the entire presentation.  The three staff members were Ms Digby, Ms Adermann and Sarah Butler.  Mr Tzvetkov thought the talk happened in the morning, was given downstairs and lasted for about an hour and a half.  Ms Smith also thought that the talk was given downstairs rather than upstairs in the dojo.  She said that normally there were no chairs in the dojo.  Ms Suttor gave evidence that there was no lecture at all.  None of them was being deliberately dishonest.  This evidence is an illustration of the unreliability of memory even of witnesses doing their best to give an honest account.  None of them had made any contemporaneous notes and each first gave a statement about the events in 2011.

[39]          Ms Adermann’s evidence suffered from some degree of imprecision.  That is not surprising given the length of time between the incident and the trial.  Witnesses who have not taken contemporaneous notes often suffer from lapses in their memory of events that occurred some time in the past.  When details of what happened were put to her in cross-examination, the flaws in her memory were clear to see.  Ms Adermann first wrote a statement about what had occurred on 8 August 2011, three years after the incident.  This problem is exacerbated when, as was the case here, the witness has reasons to give a version of events which serves to justify retrospectively his or her own actions at the time and seeks to assist a friend and former colleague.  She gave her evidence with some marked resentment at being asked questions.  I am satisfied that she gave evidence that she had done what she should have done, rather than giving evidence of what she in fact did.  For these reasons, I have approached her evidence with some caution and considered it unreliable if contradicted by other evidence.

[40]          Ms Smith’s evidence as to what the police officer was told was different from Ms Adermann’s but, of course, that does not mean it was correct.  The supervision of Mr Thrupp that day, which was Ms Smith’s responsibility, was, as will be seen, clearly inadequate and Ms Smith may have, unconsciously or otherwise, misremembered what she was told to justify her lack of supervision.  She did express some uncertainty in her memory of what was said, which satisfied me that although her evidence was somewhat unreliable she was not being deliberately dishonest.  She had no memory of the plan after the talk being that the groups would go to the police car separately.  Like the other employees at the Institute, she made no contemporaneous notes and was not asked to give a statement until three years later.

[41]        Ms Digby said that a number of the trainees were extremely excited to see the police car and were congregating around a bench against the outer wall of the ground floor in the concrete area covered by the awning.  Ms Digby said that she was standing in the doorway to her classroom, which was just inside the entrance to the ground floor, and told the trainees that they should go back into their classrooms and wait for their turn to have a look at the police car.  However, it is apparent that a number of trainees, including Ryan Thrupp, who needed close supervision, were not being adequately supervised at this point.  I have concluded after a review of all of the evidence that there was not only inadequate planning but also inadequate supervision on the day.

[44]        I should here give some description of Ms Digby’s appearance in the witness box, the significance of which will become apparent.  She had her lower right arm in a black compression glove and it was constantly shaking vigorously.  The shaking appeared to be quite uncontrollable.  However at the point where she was asked to mark the spot where she was standing with the letter “M”, she was able to mark it without any difficulty and her apparent uncontrollable shaking stopped altogether, although she remarked that her mark was “not going to be very tidy”.  Her apparently uncontrollable shaking also stopped completely when she marked the letter “R” where she indicated Ryan Thrupp was standing.  She said that Ryan Thrupp was standing slightly in front of her and to the right and that Jenny Adermann was standing slightly in front of him and to his right.  She then gave evidence that the police car was parked nose in on the concrete slab close to the two concrete steps that I referred to earlier.

[48]        Ms Smith gave a vivid account of what she said she saw the police officer do.  She said that Ryan Thrupp was near the door to the downstairs part of the Institute, three metres from the yellow concrete stairs, and she was on the top step of the yellow concrete steps looking straight into the police vehicle.  She saw the police officer open the car door and reach in as if getting something out of the glove box when she heard the siren sound.  She did not hear what the police officer said before the siren was activated because her “whole focus was on the trainees, not what the police officer was saying.”  She said at that point she heard Ms Adermann, who was standing beside her, angrily say that she had told him not to do that.  She said she did not see what happened to Ryan Thrupp.

[49]        Ms Adermann said that the siren went off without warning and “everybody got a fright”.  She conceded in cross-examination, however, that she could not now recall what the police officer said in the period leading up to the activation of the siren although she said “[she didn’t] believe he did a warning or a countdown.”

[50]        Ms Digby’s evidence was that when the police siren went off, Ryan Thrupp started falling forwards towards the concrete step and bent at his hips, so she went to grab him, missed him with her left hand and grabbed his T-shirt with her right arm.  She hooked him around his stomach area to keep him upright and still on his feet.  She called out for help to Ms Adermann and she took his weight.

[51]        Ms Adermann said that when she saw, out of the corner of her eye, Mr Thrupp start to fall, she grabbed him under his right arm with her elbow under his shoulder.  She said Ms Digby had probably reached him “a split second earlier” and took his weight with her right arm under his left shoulder.

[52]        Ms Digby said she immediately felt pain in the front of her shoulder and in her back shoulder blade area.  She said she did not hear any warning from the police officer that the siren was going to go off.  She described the siren as being ear-piercingly loud.

[56]        Ms Digby said she acted on instinct to protect him from the fall.  She agreed that even if she had been told in a training session not to try to stop someone from “falling and smacking their head on concrete”, she still would have acted to protect him in the way that she did.  Ms Thompson’s evidence was that the staff were trained by Epilepsy Queensland not to intervene to try to catch a person having a seizure but rather to clear the area so that the person could fall safely.  However, nothing in the details of the reasonably extensive training programmes provided to Ms Digby showed that she had taken part in that training.  I conclude that she had not received the appropriate training.  Such training would have had as its focus modifying the instinctive reaction of a staff member to stop the fall in a way that left the staff member open to injury.  Notwithstanding her concession as to what her instinctive reaction would have been, if she had been trained, that reaction would have been modified and the risk of injury avoided.

[65]        Senior Constable Readman said he was absolutely certain that he had given the warning that he was about to turn on the siren on that day.  He specifically denied that Ms Adermann said to him on the day that she wanted a warning before the siren was activated because they first had to move some of the trainees away.  He said that during the lecture, he told the staff and trainees that he would activate the lights and siren at the police car and that he also warned them before he did so.  If he had been requested at any stage not to turn on the siren at all or not to do so until some of the trainees had been led away and seated, he would have faithfully followed that instruction.

[66]        True it is that Senior Constable Readman, like the employees of the Institute, did not make contemporaneous notes of what occurred.  There was no reason for him to do so.  But he was used to giving the presentation, his memory of what happened at the Institute was reasonably good and his evidence did not appear to be infected by exaggeration or self-justification.  In all of the circumstances and given the many contradictions in the evidence given by the employees of the Institute, I regard his evidence as to what occurred as more reliable than the evidence given by the other witnesses.

[67]        Accordingly, I find that he gave the warning that the siren was to be turned on, which he had agreed to do.  He had not been told to do anything else, such as delay the siren after the warning was given.  That members of staff did not hear the warning or have forgotten that they heard it does not lead me to the conclusion that Senior Constable Readman did not give the warning that he said he gave or that he was given any instruction to wait after giving the warning.

[68]        Whilst I accept that Ms Digby was injured in the circumstances she described by taking Mr Thrupp’s weight when he fell as a result of startling when the siren sounded, the reason for Mr Thrupp’s fall was the failure by employees of the Institute to plan the exercise properly and supervise the trainees, rather than any negligence on Senior Constable Readman’s part.  Accordingly, I am satisfied that there was no breach of the duty of care which may be owed by a police officer in Senior Constable Readman’s position to take reasonable care to avoid an injury to members of the public when it is foreseeable they might be injured by his actions.[1]

Liability of the Institute

[69]        An employer owes a non-delegable duty of care to its employees.  This duty of care was set out by the High Court in Czatyrko v Edith Cowan University[2] in the following statement of principles on which the appellant in that case successfully relied:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.  If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.” (citations omitted)

[70]        I am satisfied on the balance of probabilities that the first defendant, as Ms Digby’s employer, was in breach of its duty in both tort and contract to take reasonable care to avoid exposing her to the risk of injury and is liable for her injuries.

[71]        The amended statement of claim pleaded the plaintiff’s cause of action in the following way:

“9.     Further and/or in the alternative, the injuries to the plaintiff were caused as a consequence of the negligence and/or breach of contract of the first defendant;

Particulars

9.1     The first defendant owed the plaintiff a non-delegable duty of care and is thereby liable for the negligence of Constable Readman;

9.2     Failing to ensure that Constable Readman had the siren deactivated by turning the vehicle off with the ignition bypass deactivated;

9.3     Failing to advise and reinforce to Constable Readman that he was not, under any circumstances, to activate the siren given the risk that clients might suffer seizures or a distressing reaction to loud and sudden noises.

9.4     Failing to instruct the plaintiff that she should not attempt to stop or arrest the fall of a person suffering a seizure or fit and to let the person fall to the ground as an attempt to arrest the fall, exposed the rescuer to a risk of injury.

9.(a)  Had the plaintiff been trained not to attempt to break the fall of a person suffering a seizure or fit she would not have attempted to save Ryan Thrupp striking the stairs as described in paragraph 6.9 above.”[3]

[72]        This pleading was not entirely apt given the way the evidence fell during the trial.  Accordingly, the plaintiff sought leave, pursuant to directions given during the trial, to amend the statement of claim to add an additional paragraph 9.5 in the following terms:

“Failing to take all reasonable steps to ensure that [Senior] Constable Readman did not activate the siren without prior warning to the first defendant’s staff to ensure that clients at risk of becoming distressed or suffering seizures such as Ryan Thrupp could be removed from the area prior to the siren being activated.”

[73]        I have determined to allow the statement of claim to be amended in the terms sought.  The amendment reflects the evidence led at trial.  Although the first defendant submitted that it was denied the opportunity to cross-examine Ms Adermann on this allegation, it does not suggest any line of questioning which it could usefully have followed which was different from the manner in which it conducted its case.  There does not appear to be any prejudice suffered by the first defendant.

[74]        The amendment sought by the plaintiff in fact reflected a pleading by the Institute in paragraph 4(b) of its defence to the statement of claim, which provided:

“The first defendant says it took all reasonable steps to ensure that [Senior] Constable Readman did not activate the siren without prior warning to the first defendant’s staff to ensure that clients at risk of becoming distressed or suffering seizures such as Ryan Thrupp could be removed from the area prior to him doing so by providing several warnings to him …”[4]

[75]        In its reply the plaintiff joined issue with this allegation.  In these circumstances, the first defendant had ample notice that this was or might have been a fact in issue, and the issue was fully ventilated at the trial.

[76]        Rule 5(1) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) provides that the purpose of the UCPR is to facilitate the just and expeditious resolution of the real issues in civil proceedings.  That purpose is facilitated by r 375(1), which provides that the court may allow or direct a party to amend its claim or pleading at “any stage of a proceeding”.  It is desirable that the pleadings reflect the evidence led at the trial, particularly where the cause of action has not changed.

[77]        The utility of allowing an amendment to the pleadings is illustrated by the following passage from Leotta v Public Transport Commission of New South Wales:[5]

“The duty of the trial judge was clear.  If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury.  The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged.  Part 20, r. 1(2) of the New South Wales Supreme Court Rules provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings.  Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact.  Particularly is this so when the action finally determines the rights of the parties in the cause of action.”[6]

[78]        The Institute is liable for its negligence and breach of contract to its employee, Ms Digby, for failing to take all reasonable steps to ensure that Senior Constable Readman did not activate the siren without prior warning to the Institute’s staff to ensure that clients at risk of becoming distressed or suffering seizures such as Ryan Thrupp could be removed from the area prior to the siren’s being activated.  The Institute is also liable due to its failure to train Ms Digby not to attempt to stop or arrest the fall of a person suffering a seizure or fit and to let the person fall to the ground, as an attempt to arrest the fall would expose the rescuer to a risk of injury.

Effects of the injury

[82]        The plaintiff bears the onus of proof of proving the quantum of the loss caused by her injury on 18 June 2008.  The court’s task in assessing that loss was made much more difficult because of her tendency to exaggerate and her lack of candour.  The best approach it appears to me is to assess her history, the medical reports, evidence of observations of her both when she was aware of being observed and when she was unaware of being observed, and finally, my assessment and observation of her in the witness box and in court generally.

[83]        I have already dealt with my observation of her tremor ceasing entirely when she marked an exhibit as requested by her counsel.  At all other times when she was in court, whether giving evidence or otherwise, her arm had a quite violent tremor.

[84]        Another troubling aspect of the evidence was found in the video surveillance of her in late 2013.  Covert video surveillance of Ms Digby was conducted on 7 September 2013 and 7 October 2013. That surveillance was revealing.  It shows Ms Digby performing a number of functions with her right hand, although it also tends to show some minor restriction in the use of her right shoulder.  She is shown driving a car.  Her right hand can be seen on the steering wheel.  It is quite apparent that her hand is not just resting on the steering wheel as she asserted in her evidence but rather is being used to manoeuvre the car around corners and to hold onto the steering wheel as she uses her left hand to change gears.

[85]        She is also shown smoking a cigarette, which she is holding in her right hand.  At that point her wrist appears to be covered by a black brace.  Whilst she is holding a cigarette in her right hand, she rummages through her shoulder bag with her left hand, however she then throws the cigarette on the ground and stubs it out with her foot.  After that she rummages in her shoulder bag with her right hand.  She appears to use both hands to text on a mobile phone.

[86]        When she is seen getting into the driver’s side of her car, she opens the car door towards her using her right hand.  When she gets into the car, she appears to use her left hand to shut the car door.  Her car keys are in her right hand.  In some of the footage she can be seen holding her mobile phone to her ear with her right hand.  At no point during the footage was there any evidence of any observable tremor at all in her right arm or hand.

[87]        When she was asked during her evidence in court to replicate the movement of putting a cigarette to her mouth with her right hand, she demonstrated a gross tremor, not the smooth movement shown in the surveillance.  She unconvincingly attempted to explain the discrepancy by saying her tremor was deteriorating as time goes on. This does not explain why she did not have a tremor at all when using a mobile phone, unaware she was being observed, in late 2013 but had an extreme tremor in early 2015.

[88]        Her evidence at trial with regard to the tremor, after cross-examination and hearing the evidence of some medical witnesses, was that it was not present immediately after her injury but started when she went to the physiotherapist about two months later.  She said that the physiotherapist gave her some exercises for that.  She said that in about 2010 or 2011 she developed a coarse tremor but it was not a “solid tremor” in that it was not constant.  She said when she went to use her hand or arm that would make the tremor start.  She said the tremor had become constant in about the middle of 2014.  She said she always had it when she went to see a doctor because driving distances in a car, even as a passenger, increased her pain levels, giving her a tremor.

[89]        She also gave evidence that she is able to send messages on Facebook for several hours a day notwithstanding her constant tremor because she takes a break to walk around every 30 to 45 minutes.

[117]      Mr Ng noted that movement of the joints in the upper right limb was difficult to assess due to the tremor, although full flexion in the right elbow was observed.  He noted significant restrictions in the movements of her right shoulder and that she described a locking of the joint with movement.  She also described tenderness in the sub-scapular region, extending into the medial morder of the scapula.  Mottling and redness in the palmar surface of her right hand and fingers were noted.  Mr Ng was of the opinion that she had a capacity for occupations in the sedentary to light range only.  However, in the work she was asked to undertake of only four hours a week she continued to suffer persistent aggravation of her symptoms and ceased work.  He indicated that she had a severe occupational disadvantage.  He opined that without “significant amelioration of her current high subjective pain experience and symptomology, I believe this woman will be unable to return to work.”

[118]      Where Mr Ng noted that she had “low mood and reduced energy levels”, he reported that she said that she preferred to stay at home and on most days, if the phone rang, she would not answer it because she preferred to avoid speaking to people and wanted to forget about the world.  In cross-examination he agreed that she did not tell him that she spent four or five hours at least two days a week socialising with some of her more than 250 friends on Facebook.  With regard to the tremor which made it impossible to obtain a dynamometer reading, he agreed in cross-examination that her severe tremor was quite inconsistent with what he saw on the DVD of the covert surveillance which was taken.  For example, he said that he saw her open and close a car door, so she should have been able to grip and grasp a dynamometer.

[144]      It appeared from material from Ms Digby’s Facebook account (which was only revealed during the trial) that she told a friend on 10 October 2012 that she desperately needed his help, as her 14 year old had become very abusive to her, to the point that she was scared for her life.  She did not reveal this problem to any of the doctors who examined her.  Nor did she tell any of the medical experts who examined her that she had sent her younger son to stay with his father for a time even though he wanted to come home.  She told a friend on Facebook of the trouble she had been having with him “for way too long”.  She also referred to her “new man”, Justin.

[145]      It appeared from material from Ms Digby’s Facebook account that her younger son had attempted suicide using her medication on 19 January 2013 which, unsurprisingly, she described to a friend as her “worst nightmare”.  Again, she did not reveal this to the psychiatrists who examined her.  An entry on Facebook on 20 January 2013 showed that she was concerned that the Department of Child Services was to visit and might determine that she was not a fit mother.

[146]      She admitted in cross-examination that she regularly spends hours sending and receiving messages on Facebook.  She agreed she had posted photographs on Facebook of herself camping with her sons on two different occasions after her injury.  She had been to football matches, a rock concert in Brisbane and Aussie World.

[147]      She had met two new partners since the incident and the breakup of her then current relationship.

[148]      She gave evidence that she consulted a psychologist from the end of 2013 to the present time, seeing her about once a month.

[155]      She told Professor Whiteford that she was socially isolated, although she had been in a relationship for 12 months with a man who visited her.  She did not report any other psychosocial stressors.

[158]      In oral evidence, Professor Whiteford said that Ms Digby did not tell him about the significant psychological stressors in her life which were evidenced by her Facebook postings.  They would have had an effect on her psychological well-being and the mental health problems she was experiencing.  Further, her failure to disclose them affected the reliability of the history she gave, which compromised the extent he could rely on it in forming a diagnosis and determining the level of impairment arising from the diagnosis.

[174]      Ms Digby was examined on 30 April 2014 by Rebecca Hague, an occupational therapist from Therapy Solutions.  Her report is dated 7 May 2014.  In oral evidence, Ms Hague modified some of the opinions she expressed in that report, based on her review of a DVD of surveillance footage of Ms Digby.  Her oral evidence was that Ms Digby’s presentation in the DVD was vastly different to her presentation at her assessment.  On examination, Ms Digby had been unable to be tested for her right hand grip strength with a dynamometer because of the tremor in her upper limb.  Ms Hague observed a visible tremor in the right hand and right upper limb.  Ms Digby had been unable to make a fist or oppose the thumb to her fingers related to the tremor, and had pain and reduced range of movement in the right hand.  Attempting to move the hand and right upper limb was accompanied by an increase in the tremor and a self-report of increased pain.  Ms Digby reported that she was unable to engage in fine motor tasks due to her tremor and ongoing pain experience, and was unable to use her right hand in a functional way.  She also reported hypersensitivity of the right hand.

[175]      The DVD of the surveillance footage showed what Ms Hague referred to as a vastly different presentation.  In her report of 7 May 2014, Ms Hague expressed the opinion that Ms Digby would need seven to 10 hours a week of domestic assistance.  Based on the better function in her right hand demonstrated in the surveillance footage, Ms Hague was of the opinion that she would need less domestic assistance.  After reviewing the DVD, she thought three to four hours per week of household assistance would be sufficient.

[177]      After viewing the DVD, Ms Hague thought that Ms Digby had the physical capacity to do administrative work in some situations but that it would be difficult to find her a job in such a position.

[178]      On examination by Ms Hague, Ms Digby had been unable to touch her forefinger and thumb.  When she was cross-examined, Ms Digby said that she did the test with her right hand or at least that she attempted to do the test.  Ms Hague nevertheless observed that Ms Digby was able to demonstrate the capacity to do that on the surveillance footage by holding a cigarette and in court by writing with a pen.  Nevertheless, Ms Hague was of the opinion that she would not be suited to one-on-one child care, even of children of school age in their home.

[179]      Ms Digby’s son, Joe, who was 16 years old at the trial, gave evidence that at present he vacuums, mops, de-cobwebs, cleans the bathroom, makes the beds, does his own clothes washing, scrubs the pots and pans, cooks three nights a week, assists his mother otherwise with cooking, cuts up her food so she can eat it, and occasionally washes the car.  His mother no longer engages in the sporting and other leisure activities she engaged in before the injury.  He said the shaking in her right arm was getting worse.  He denied for the most part having seen her do the activities she is shown doing in the surveillance DVD.  Unfortunately, I did not find his evidence at all reliable.  He appeared to be reciting what he had been told to say rather than giving honest evidence.

[186]      When describing her tremor, she says that it seems always to be there.  When asked what she could do with her right arm, she immediately referred to being able to “try to write”.  She said she can wash plates but can’t scrub a pot.  She can put washing into the washing machine but uses her left hand.  She turns her indicator on with her right arm.  She said she was unable to lift her right arm away from her body or above her head.  She agreed when cross-examined that she had a severe constant tremor in every medical examination and told many of the doctors that she had no use of her right arm.

[187]      Her counsel asked her about whether an intentional movement made the tremor better or worse, for example, if it reduced or increased the tremor when she wrote.  Unfortunately for the purposes of her credibility, she answered that trying to write increased the tremor.  This was inconsistent with the behaviour that had actually been demonstrated in court.

[188]      Her description of her complete loss of use of her right hand and arm and her presentation with a constant violent tremor was inconsistent with what was seen on the DVD of the surveillance of her.

[190]      Dr Gilpin also prepared a report dated 26 February 2015 after reviewing the DVD of the video surveillance.  In that report, he said that the use of the upper limb demonstrated by the plaintiff in the video was inconsistent with the presentation to and examination by him on the two occasions that he reviewed her in 2012 and 2014.  Specifically, there was said to be no evidence of tremor in the right upper limb or of loss of use of the hand or elbow in the activities witnessed on the surveillance footage.  However, he also stated that there was no full use of the shoulder shown.  He said there was no evidence that he could see of the applicant raising her shoulder or moving her shoulder away from the body to any significant degree.

[191]      Dr Gilpin said the effect of this footage was that he was even more firmly of the belief that there could be no impairment allowed for the loss of function in her elbow, wrist or hand.  The inconsistency in the examination implied that the assessment of impairment in the right upper limb on account of the shoulder might well significantly overstate the actual impairment suffered by the plaintiff, although there was no objective evidence to support that based upon the review of the information and the video he had seen.

[192]      Finally, Dr Gilpin said that the evidence from the DVD suggested that the presentation might not be one of a somatoform disorder and as such, it implied that there might be a more sinister element to the plaintiff’s presentation with respect to her injury.  He said that a fuller assessment of this, however, needed to be undertaken by a psychiatrist with an interest in forensic psychiatry.

[193]      During the trial, Dr Robinson gave evidence as to his conclusions after he saw the DVD of the surveillance.  He said that the surveillance evidence did not demonstrate her using her right shoulder normally but certainly demonstrated a range of motion greater than when he examined her in February 2014.  He said that her right shoulder was still not moving normally but was moving better than the two occasions when he examined her so he would adjust the impairment rating down to probably 15 to 18 per cent for the shoulder.  He said the lack of tremor shown in her hand meant that the function of that hand was obviously better than it had been when he last saw her.  He agreed there was a significant variation between what he observed in his examination and what he saw in the DVD of the surveillance, both in respect of the right hand and the tremor.  He was not aware of any orthopaedic explanation as to why it might vary so significantly.

[194]      As a result, his assessment was that she had an impairment percentage of 15 to 18 per cent for the shoulder and four to five for the wrist, giving a total of about 20 per cent upper extremity impairment.  The DVD demonstrated that her hand was functional and did not have any impairment.  A 20 per cent impairment of the upper extremity would give a 12 per cent whole person impairment.

[195]      The way in which she presented on the surveillance DVD was different in that she had told Dr Robinson that her tremor was a constant condition.  He agreed on cross-examination that there was no explanation of an orthopaedic nature for her tremor.

[196]      I conclude from all of the evidence that Ms Digby suffered from a relatively minor shoulder injury, the physical effect of which she has exaggerated.  It may have caused adhesive capsulitis for a period but that is now resolved.  I accept Dr Gilpin’s assessment of 20 per cent Impairment of Upper Extremity Function leading to 12 per cent whole person impairment.

[197]      Dr Cameron observed the DVD of the surveillance of Ms Digby and reported on that on 26 February 2015.  He said that the features present in his interview with her of a coarse tremor and inability to use her right hand or upper limb were not evident in the video surveillance.  He said there were no features of any neurological impairment when he saw her; nor were there any on the surveillance video.

[199]      Professor Whiteford produced a further report on 26 February 2015 after viewing the video surveillance taken in 2013.  He said that the video surveillance was at odds with what Ms Digby had told him when he examined her on 29 January 2014 and how she appeared in the consulting room.  She had told him that she was unable to use her right arm and, during his assessment of her, held the arm immobile with intermittent tremor noticed.  His observations of the video surveillance have led him to conclude that she does tend to favour using her left arm, however she can and does use her right arm and hand for many activities.

[200]      Further, when he examined Ms Digby on 29 January 2014 she told him that she remained socially isolated at Palmwoods, whereas the video surveillance suggested that she was able to travel alone and in company, and did not appear to be exhibiting any observable signs of panic anxiety on the surveillance.

[201]      He therefore formed the opinion that the level of impairment reported to him by Ms Digby was exaggerated.  Whilst this did not exclude a diagnosis of somatic symptom disorder contributing to her pain and disability, it reduced the likelihood that this was a significant contribution.  It also made it much more likely that there would be an improvement in her symptomology once the litigation was resolved.

[202]      Finally Professor Whiteford produced a report on 28 February 2015 with regard to the diagnosis of somatoform disorder.  He said that he had considered her to have a somatoform disorder, such disorders being characterised by symptoms suggesting physical injury or illness, but which are not explained by a physical condition.  In DSM 5 the term “somatic symptom disorder” has replaced the DSM IV term “somatoform disorder” and has somewhat different diagnostic criteria.

[205]      Dr Cantor agreed that her behaviour as shown on the surveillance footage was considerably more normal than he observed in the consulting room.  He said this could be explained by the fact that people with psychological disorders make an effort to hide their distress when they go out in public.  He said that the footage did not fundamentally alter his opinion.  He said that it did, however, make him wonder about the extent of her disability, particularly given the absence of the tremor, which had been very marked in his consulting room.  On the other hand, he observed her closing the driver’s door with her left hand which is something an ordinary person would never do.

[206]      Dr Cantor said that the information about her having been in an abusive relationship with the father of her two sons was potentially relevant to his opinion, but he did not think it fundamentally altered his opinion.  He did not think the level of abuse encountered was such as would cause post-traumatic stress disorder.  He also said it would have been relevant for him to have been told by Ms Digby about her son’s suicide attempt.  He said he could not be sure whether this would have impacted on his opinion.  It represented an additional source of stress for her, but he would also have wanted to explore how her own psychological state might have affected her son.  He agreed that family stress will increase pain perception and that, in turn, can increase family stress.

[207]      Dr Cantor said that the fact that she spent several hours a day perhaps two days a week socialising on Facebook was not consistent with the information she gave him about her social isolation.

[208]      Dr Cantor said that she should be weaned off all the medications apart from Cymbalta, Lyrica and Endep, because with those drugs there is no real risk of dependency or tolerance developing.

[209]      Dr Cantor agreed that it was reasonable to say that Ms Digby’s very different presentation in the DVD surveillance as compared with examination by him; the differences in her description of social isolation as opposed to having an active Facebook life; and the other things he was not told about her personal stressors all led to the conclusion that, for his report to be more accurate, he would need an investigation of those matters with Ms Digby.

[210]      Dr Cantor also agreed that, if her presentation on the surveillance was accurate, it would lead to a conclusion that she exaggerated the extent of her disability to him.  While he agreed her presentation on the DVD suggested she was exaggerating, that did not mean there was not substantial pain present which she had learnt to put up with to some degree.  Dr Cantor agreed, however, that a person can mislead a psychiatrist as to whether they in fact meet any of the three diagnostic criteria for somatic symptom disorder because they are matters that depend on an individual’s truthfulness in reporting that they have those symptoms.

[211]      I have formed the view that Ms Digby deliberately exaggerated her somatic symptoms probably for the financial gain which she hoped to obtain from the litigation.  The contrast between her behaviour in the surveillance video and when asked by her own counsel to mark an exhibit, and her reported and observed symptoms when she saw medical practitioners and otherwise in court, is so stark that no other explanation appears reasonable.

[212]      The plaintiff bears the onus of proof of the extent of her injury and she has failed to persuade me on the balance of probabilities that she has suffered from more than a mild shoulder injury complicated by a minor somatic symptom disorder in the immediate aftermath of her injury and a consequent addiction to painkillers which she continues to use.

Past economic loss

[216]      I am not satisfied that her past economic loss was as was submitted by the plaintiff.

[217]      The assessment of this head of damages has, as was submitted by the first defendant, been rendered problematic by reason of the plaintiff’s exaggeration of her tremor and upper limb dysfunction and non-disclosure of other significant psychological stressors.  The reasons given by the experts who provided reports as to her incapacity for employment before the disclosure of the surveillance evidence were ongoing pain and the severe tremor in her right arm.  The surveillance evidence disclosed no obvious pain responses to the activities engaged in by her and, as previously noted, it disclosed no tremor.  Without any cogent medical explanation for such a tremor – and there is none – it is doubtful whether the tremor ever existed in any involuntary form except for a brief period initially. None of the experts who reported considered Ms Digby unfit for past employment by reason of her shoulder condition alone.  The first defendant submitted that without any sensible way of testing the plaintiff’s true functional state retrospectively, the appropriate approach is to assess the past economic loss at the level of the WorkCover weekly benefits which ceased on 3 September 2010, to enable the refund to be met.  This is an amount of $50,924.19.

[218]      Thereafter Ms Digby appeared from the surveillance, combined with the assessments of Ms Hague and Dr Tadros, to be fit for employment in an administrative role.  Evidence was led that such wages at the Institute were approximately $4 per hour less than the hourly rate for carers, but carers’ hours were limited.

[219]      It appears likely that because of her shoulder injury, Ms Digby remains unfit for her pre-injury role as a carer.  The difference in income between the role of a carer and an administrative role of $4 an hour over 30 hours per week would have produced a loss of $120 gross per week.  From 3 September 2010 until the date of judgment the total loss would have been $32,280 (gross) ($120 per week x 269 weeks).  Notwithstanding this assessment is gross rather than net, its addition to the weekly benefits results in a total award of $83,204 for this head of damage.  The prospect that her hours would have increased is too speculative to be added to this head of damage.

[220]      Interest is only available on the balance of past economic loss after subtracting the weekly benefits paid to her.  Using the figure of $32,280 at five per cent per annum from the date benefits ceased (5.2 years) produces a sum of $8,393.

[221]      Past superannuation contributions at nine per cent of past economic loss would be a further $7,488 ($83,204 x nine per cent).

Future economic loss

[222]      As the first defendant submitted, the leading expert in relation to residual capacity for employment, Ms Hague, considered the plaintiff fit for administrative employment.  In such a case, the plaintiff has failed to show on the balance of probabilities that her mild physical disability or her mild somatic symptom disorder would prevent her from working, at least in an administrative role, were she motivated to do so.  In those circumstances it is impossible to use the weekly multiplicand methodology of assessing future economic loss.  The first defendant submitted, and I agree, that a figure of $40,000 as a global award is appropriate.  Employer superannuation contributions of 11.33 per cent of the amount of $40,000 would be a further $4,532.

Summary of quantum

General damages $35,000.00
Interest (50 per cent past) $2,590.00
Past economic loss $83,204.00
Interest $8,393.00
Past superannuation $7,488.00
Future economic loss $40,000.00
Future superannuation $4,532.00
Past special damages $100,562.46
Interest on special damages $936.00
Future special damages $19,397.40
Fox v Wood $3,876.00
Sub-total $305,978.86
Less WorkCover refund $147,933.71
TOTAL $158,045.15

David Cormack – Brisbane Barrister & Mediator

 

 

 

 

 

 

 

 

[1]     See ACT v Crowley (2012) 273 FLR 370 at 413, [273].

[2]     [2005] HCA 14 at [12], (2005) 79 ALJR 839 at 842-843.

[3]     Paragraph 6.9 was in the following terms: “The plaintiff moved to save Ryan Thrupp from striking the concrete stairs and took his full weight in an attempt to break the fall”.

[4]     It is also consistent with the second defendant’s defence with which the first defendant joined issue.

[5]     (1976) 50 ALJR 666 at 668.

[6]     Approved recently by the Court of Appeal in Petchell v Du Pradal; Pia Du Pradal Pty Ltd v Petchell [2015] QCA 132 at [39].

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