Baker v Bunnings Group Limited

[2020] NSWDC 310

District Court

New South Wales

Medium Neutral Citation:	Baker v Bunnings Group Limited [2020] NSWDC 310
Hearing dates:	4-8 May 2020; 12 May 2020; 21 May 2020
Date of orders:	18 June 2020
Decision date:	18 June 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed. (3) Liberty to any party to make an application within 14 days to vary order (2) above. (4) The exhibits are to be retained for 28 days.
Catchwords:	Torts – negligence – Civil Liability Act claim – plaintiff falls on edge of kerb of raised concrete island in carpark of store operated by the defendant – whether defendant store operator breached a duty of care owed to the plaintiff – whether warning was required of kerb – whether some other delineation of kerb required – whether the passage over the island should have been prevented by ropes or barriers – degree of loss of the plaintiff – quantum of domestic assistance to be awarded to the plaintiff
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 15, 15B and 16 Civil Liability (Non-economic Loss) Amendment Order 2019 Evidence Act 1995 (NSW), s 136 Work Health & Safety Act 2011 (NSW) Work Health & Safety Regulation 2011 (NSW)
Cases Cited:	Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Burwood Council v Byrnes [2002] NSWCA 343 Council of the City of Sydney v Bishop [2019] NSWCA 157 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Miller v Galderisi [2009] NSWCA 353 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Ryde City Council v Saleh [2004] NSWCA 219 Samco Pty v Wurth [2015] NSWCA 117 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75 Whitton v Dexus Funds Management Ltd [2019] NSWDC 579
Category:	Principal judgment
Parties:	Shirley‑Ann Baker (Plaintiff) Bunnings Group Limited (Defendant)
Representation:	Counsel: E G Romaniuk SC and S J Roulstone (Plaintiff) G Jensen (Defendant)   Solicitors: LHD Lawyers (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2018/00307583

Judgment

1. In these proceedings, the plaintiff, Ms Shirley-Ann Baker, brings a claim against the defendant, Bunnings Group Ltd, the operator of a hardware store situated at the relevant time at 215 Lake Road, Port Macquarie in the State of New South Wales, for damages in relation to personal injury suffered by the plaintiff on 25 October 2017 when she fell from a kerb of a raised concrete island in the carpark of the store injuring her left ankle. The proceedings are brought under the Civil Liability Act 2002 (NSW) (“CLA”). It is not in dispute that the defendant owed the plaintiff a duty of care or that the plaintiff suffered a serious injury to her left ankle in the accident. The defendant has denied liability and submits that it did not breach any duty of care owed and also submits that the plaintiff has failed to exercise reasonable care for her own safety.

2. Accordingly, the issues to be determined by the court on the pleadings are:

1. What was the duty of care owed by the defendant to the plaintiff?

2. Did the defendant breach the duty of care which was owed to the plaintiff and, if so, in what way?

3. Did any breach of the duty of care owed cause the injuries in relation to which the plaintiff seeks damages?

4. Was there any breach of statutory duty by the defendant giving rise to a cause of action in the plaintiff? Counsel for the plaintiff conceded that no separate statutory duty giving rise to a cause of action was relied upon;

5. What was the extent of the plaintiff’s injuries caused by the accident?

6. What continuing disabilities and loss does the plaintiff have arising from the accident?

The pleadings

3. The plaintiff commenced the proceedings by a Statement of Claim dated 8 October 2018. In substance, the plaintiff pleads her cause of action as follows:

1. At all relevant times, the defendant owned and operated the premises at 215 Lake Road, Port Macquarie. The defendant admits it operated the premises at all relevant times but denied it owned the premises: Defence paragraph 3;

2. On 25 October 2017 at approximately 10am, the plaintiff was a lawful entrant at the premises when, as she was proceeding to purchase products at the timber section of the premises, she walked towards the timber section “where her left foot tripped on a raised kerb section (“the kerb”) of the car park/walkway falling forward”;

3. As a result of the plaintiff having tripped on the kerb, she suffered injury, loss and damages;

4. In paragraph 6 of the Statement of Claim, it is pleaded that the particular risk of harm was the risk of a lawful entrant taking reasonable care for their own safety, tripping on the kerb and falling forward and suffering injury as a consequence;

5. In paragraph 7 it is pleaded that the risk of harm was foreseeable, the kerb created a not insignificant risk of injury for entrants such as the plaintiff arising from tripping and falling on the kerb and the defendant was aware of the risk of harm;

6. It is pleaded that a reasonable person in the position of the defendant would have taken steps and precautions so as to prevent injury to a person such as the plaintiff from tripping and falling on the kerb within the premises. These are set out in paragraph 11 and include “delineating the presence of the kerb by way of warning, sign, painting or other method of distinction so as to warn entrants and/or attendees”;

7. A duty of care is pleaded as being owed by the defendant to the plaintiff as the operator of the premises (paragraph 12) and that there was negligence of the defendant “in failing to delineate the kerb near the timber section entrance in its car park” which was said to be “a necessary condition so as to constitute harm to the plaintiff”.

4. Paragraph 15 of the Statement of Claim sets out particulars of negligence of the defendant as follows:

“(a)  In failing to take reasonable care for the safety of the Plaintiff;

(b)  In failing to properly delineate the kerb area in the car park near the entrance to the timber section;

(c)  In failing to give any or any adequate warning to the Plaintiff of the dangerousness of the kerb being in the immediate vicinity of the entrance to the timber section;

(d)  In failing to erect ropes and/or barriers around the kerb;

(e)  In failing to erect bollards around the kerb;

(f)  In failing to warn the Plaintiff as to the dangerous nature of the kerb being in the general vicinity of the entrance to the timber section of the premises;

(g)  In failing to comply with AS/NZS 2890.1; 2004,

(h)  In failing to prevent a trip and fall hazard to the Plaintiff;

(i)  In allowing a trip hazard to remain near the entrance to the timber section of the premises.”

5. A cause of action for alleged breach of a statutory duty under the Work Health & Safety Act 2011 (NSW) and the Work Health & Safety Regulation 2011 (NSW) is also pleaded. See paragraphs 16-24. This was not relied on in final submissions. It was submitted the alleged breaches were relevant to the allegation of negligence.

6. The plaintiff filed a Statement of Particulars dated 8 October 2018 with her Statement of Claim. The particulars of injury referred to was a fracture of the left ankle and a dislocation of the left ankle. Significant continuing disabilities are set out including pain in the left ankle, pain in the left foot, poor mobility and a restricted range of motion in the left ankle. It is particularised that the plaintiff had an open reduction and internal fixation of the left ankle with the insertion of screws and metal plates to the left ankle. Detailed particulars are given in relation to the claims made by the plaintiff including for past and future out-of-pocket expenses and past and future domestic assistance.

7. No claim is made for past or future economic loss, except in relation to the cost of gardening and lawn mowing services which the plaintiff has had to arrange and pay for.

8. The defendant filed a Defence dated 20 December 2018. The defendant, as stated above, admitted that it operated the premises at all relevant times. It also admitted that the plaintiff attended the premises on 25 October 2017. The defendant also accepted that the car park area in which the plaintiff tripped and fell was part of the defendant’s workplace. Otherwise, it denied the allegations of liability and pleaded contributory negligence.

The plaintiff’s evidence

9. The plaintiff tendered a bundle of medico-legal reports and an engineering expert report. The bundle became Exhibit A in the proceedings. The various reports will be considered further below.

The plaintiff’s oral evidence

10. The plaintiff gave evidence that she was born in August 1950 and was thus 69 years of age at the time of the final trial. She was 67 years of age at the time of the accident on 25 October 2017. The plaintiff gave evidence that she was a carer of two grandchildren at the present time but was otherwise not employed.

11. The plaintiff said she came from a large family of nine children. After completing the leaving certificate, she became an apprentice tailor making clothes and suits but stopped work at 18 as she was getting married. The plaintiff married soon after and quickly had two children. She was pregnant with a third child when her husband died in 1971 whilst having major surgery. The plaintiff stated that she had three daughters from the first marriage. The plaintiff remarried a number of years thereafter and had two further daughters from her second marriage. The second marriage ended in divorce in 2002.

12. The plaintiff has had a long history of caring for some of her grandchildren. The plaintiff looked after three children of one of her daughters from her first marriage and then later three children from one of her daughters from her second marriage. The children from the first daughter referred to are now adults. At one stage, the plaintiff had five of her grandchildren living at her house under her care. In relation to the last three grandchildren, the plaintiff was a carer for the children on behalf of United Burnside. At present, the plaintiff still has two of the second set of three grandchildren living with her.

13. In relation to past medical issues, the plaintiff gave evidence in chief that she had a neck injury in 1992 from which she recovered. In 2008, she was diagnosed with Type 2 diabetes which is managed by medication under the supervision of a specialist. In 2011, the plaintiff was diagnosed with a form of cancer which was treated surgically and has been extensively monitored. The cancer is now in remission.

14. The plaintiff gave evidence that prior to the accident she was very active. As well as caring for her grandchildren, she engaged in tennis, walking and swimming particularly in the surf at the beach. Her care also involved playing with her grandchildren.

15. Following her divorce in mid-2002, the plaintiff undertook substantial work on her home including painting, an extension and the erection of a pergola. The plaintiff undertook some of the work in relation to these various projects including getting quotes, painting, staining timber and cleaning up after tradesmen.

16. Prior to the accident, the plaintiff said in chief that she was responsible for the maintenance of her garden including mowing and everything on the inside of her house. Although she had three grandchildren at the time of the accident, virtually all domestic chores prior to the accident were, according to the plaintiff, completed by the plaintiff. The plaintiff stated that cleaning was important to her as she had grandchildren there and she “ran a clean house”.

17. Having regard to the renovation work which she was undertaking, the plaintiff stated that she was a customer of a Bunnings store at Lake Road in Port Macquarie. Since the accident, the Bunnings store has moved to John Oxley Drive at Port Macquarie. The plaintiff gave evidence that there were two car parks at the Bunnings store at Lake Road which had a concrete surface as well as some garden beds and trees. She stated that there were three entrances to Bunnings: a main entrance, an entrance to a nursery and an entrance to the timber section. The main entrance was from a concrete area through red doors. In relation to the timber section, the plaintiff said that there was an entrance with the word “timber” above the door. The plaintiff stated that she had been to the timber section of Bunnings at the Lake Road store on a number of occasions. The plaintiff gave evidence that trucks and other vehicles could enter the timber section of Bunnings by being given entrance by an operator who raised a boom gate to allow the vehicle to enter. The plaintiff said that there was a pedestrian entry also to the timber section to the left of the exit boom gate which she had used. The plaintiff also stated that she could access the timber section through the main store.

18. The plaintiff gave evidence that near the timber entrance to Bunnings was a raised section of concrete. This was described by various witnesses as a concrete island or platform. Prior to the accident, the plaintiff stated that she had seen items on the raised section including items for sale on pallets and gas bottles maintained in a mesh cage. She stated that she had also seen goods for sale near the raised section of concrete. The plaintiff confirmed that prior to the accident, she had been a regular visitor to the timber section for wood for the garden or for the pergola which she was building. She also agreed that she had used the pedestrian entrance to the timber area.

19. The plaintiff gave evidence that on 25 October 2017 she was building a platform in her back garden near her stairs and she had purchased items from Bunnings including hardwood palings and nails to create the platform. The plaintiff stated that she realised that three of the palings she had were too long and she travelled to the Bunnings store in order to request one of the staff members there to cut the palings for her to the correct size. The plaintiff said that the staff member had done this for her on prior occasions. The plaintiff stated that she drove to the Bunnings store arriving between 9:30 and 9:45am. She parked in the main car park, alighted from her vehicle and walked across the car park towards the timber section at Bunnings carrying three 3 feet long palings in her hand. The plaintiff said that she was wearing jogging shoes at the time which she wore frequently. She described the condition of the shoes as worn but not worn out: T64.22. She said she had no difficulties at the time walking in joggers.

20. The plaintiff said that as she approached the timber section she saw the gas bottles to the left and then noticed that a truck appeared to be about to come out of the timber section of the store. The plaintiff said that she turned about face and then walked past the gas bottles now to her right. She said she did this as she thought that her approach may hinder the truck exiting the timber area. The plaintiff said that she formed the view that she would walk across the car park and cut through to the pedestrian entrance to the timber area of Bunnings. The plaintiff said that she proposed walking across what she described as the “little raised section”: T64.37. She later called it the “little raised platform”: T65.22. To do this, she walked across the car park immediately before the raised concrete platform or island in the car place which was marked with a sky-blue disabled person marking.

21. The plaintiff said that she stepped up from the gutter and was looking where she was walking: T65.24. She described the gutter as being square in shape. At the time, she said the only items on the raised platform were the gas bottles. She said there were no pallets of goods on the raised platform or in its vicinity or any items: T66.7. That is contrary to later evidence given by a number of Bunnings’ witnesses. The plaintiff stated that as she stepped on to the raised platform she continued to walk, looking normally where she was going: T66.12.

22. It is important to set out what the plaintiff said then occurred from her oral evidence. She stated as follows:

“Q. When you were on that raised section you continued to walk?

A. Yes.

Q. As you were walking, what were you doing by way of keeping a lookout?

A. Just walking normally and yeah, fixated on where I was going.

Q. Were you watching where you were walking?

A. Absolutely.

Q. At some stage something happened to you. Can you tell the judge how you were walking and then what happened?

A. I was walking across the, the - this little raised platform and I wasn’t aware that there was another step down, so I just thought I had to go straight ahead, my foot tipped forward and then snapped to the side and I ended up face forward on the concrete.

Q. You said you weren’t aware that there was another step down. As you were crossing the raised section, what did it look like to you when you were crossing it?

A. That it just continued to, to the entrance.

Q. As you were crossing, did you see any change in height?

A. No, not visually. From the way that I was walking across, it had, it had angled down, so you couldn’t see anything raised up from that.” (emphasis added) T66.9-.32

23. It seems clear from the evidence that the plaintiff was not aware that the raised platform or island had a step down before the pedestrian entrance to the timber area of Bunnings.

24. The plaintiff described her foot as going forward and she heard a loud crack. The plaintiff said she fell forward facedown and was in excruciating pain. She said she did not look initially where she had fallen as she was in too much pain. A female staff member from Bunnings assisted her and then a male staff member came over. They helped the plaintiff to sit leaning against the gas bottle cage. The female Bunnings staff member obtained an ice pack. An ambulance was called and took 45 minutes to arrive. The plaintiff said that her foot appeared to be dislocated and was at a right angle to her leg.

25. The plaintiff stated that prior to the accident, she had not walked across the raised section to go to the timber entrance of Bunnings. The day of the accident was the first time she had crossed the area: T68.2.

26. The plaintiff was taken to a number of photographs in Exhibit A from page 131. In relation to the photograph at page 131, the plaintiff confirmed that the gas bottle cage shown was present on the day of the accident but not the pallet or sandwich board sign shown in the photograph. The plaintiff confirmed that the boom gate in the photograph at page 133 was present at the time of the accident. The plaintiff confirmed that the photographs at pages 138 and following were taken by her daughter on an iPhone on a public holiday. It was not stated when: T71.7.

27. The plaintiff gave evidence that she was taken by ambulance to Port Macquarie Base Hospital where she remained for six days. The plaintiff suffered a fractured left ankle in the accident. She confirmed that she had a procedure involving an open reduction and internal fixation with the insertion of screws and a plate into her left ankle. The plaintiff indicated that when she was discharged she was in a wheelchair with a half cast as she had an open wound. A walking frame was provided to her for toilet and shower transfers as she could not weight bear. The plaintiff said she was in a wheelchair for six weeks until her plaster was removed and then she could partially weight bear and was able to have physiotherapy and hydrotherapy. She was placed in a “moon boot” after her cast was taken off. The plaintiff indicated that she commenced a graded process of weight bearing which took eight to ten weeks from the date of the accident and then she proceeded to use a walking stick: T73.45. The plaintiff said she was not able to use crutches.

23. The plaintiff confirmed that she has seen a number of doctors for the purposes of medico-legal reports and stated that she told the truth to the various doctors to the best of her abilities. When she saw Dr Bodel in September 2018, the plaintiff confirmed that she had pain and stiffness and a limp and could not wear enclosed shoes. She wore slip on shoes at the time. She said at the time she had a sharp stabbing knife like pain on occasions when her foot was twisted or rolled. She said that she used medication for the pain but was allergic to codeine. She also rested and elevated the foot to relieve the pain and used ice packs.

24. The plaintiff said that when she walked her left foot turned slightly to the left hand side whilst limping as she found that more comfortable and it reduced the pain. The plaintiff gave evidence that she could walk satisfactorily on flat surfaces but had difficulty walking up or down hills or on uneven ground.

25. The plaintiff stated that she had the plate and screws removed from her ankle on 20 November 2018. This helped with the pain as the screws were pushing against the skin. She also has had the benefit of physiotherapy. The plaintiff stated that she could not walk on the beach and could no longer engage in many of the activities she did prior to the accident. She said she had difficulty going with her grandchildren to the park, in walking on grass and could not kick a ball. She said she was now an “observer” and needed a stick if she went on grass to provide her with stability.

26. The plaintiff said that she undertook shopping and placed her walking stick in the trolley which she leaned on. She said that she was able to undertake shopping for an hour to an hour and a half but if more time was needed she would need to rest.

27. Her physiotherapist had prepared inserts for her shoes including in special jogging shoes. The plaintiff said that she wore sandals with specialised inserts and runners sometimes. She said she was unable to wear shoes with heels and wore only flat sandals and joggers.

28. The plaintiff said she was unable to engage in any beach activities but was able to swim in a pool. She said she had difficulty sleeping.

29. The plaintiff gave evidence in relation to her domestic activities prior to and after the accident. Since the accident, the plaintiff said that she has been unable to undertake any outside or handyman activities apart from pulling out the occasional weed. She said she had retained someone to do gardening and mowing for her. She said that mowing and gardening was conducted by this gentleman once a week in summer and once a month in the cooler months at $60 per session: T78.

30. In relation to indoor activities, the plaintiff said she was unable presently to do a “deep clean” of the house but was able to undertake surface cleaning. She said that vacuuming was undertaken by her 13-year-old grand-daughter and her grandchildren were able to make their own beds. She gave evidence that her daughter Melinda was able to do a “deep clean” of the house for her. She said her daughter “whizzes through the house”: T78.47. If she had not been in the accident, she said that she believed that her 13-year-old grand-daughter would not be undertaking the vacuuming but she knew that the plaintiff needed help.

31. The plaintiff said that she could make her own bed, load and unload the dishwasher, undertake cooking using a stove top and complete general tidying up. In relation to bathrooms, showers and toilets the plaintiff said she was unable to undertake cleaning except for sinks: T79.18. The plaintiff said that her injury had had an emotional impact on her including feeling down, depressed, angry and frustrated.

32. The plaintiff said that she undertook limited social outings as she could not go to the beach or in some areas at parks and was limited to socialising with her family at houses or at barbecues. The plaintiff said that she had put on weight of about 10kg since the accident due to difficulty exercising. She later altered that evidence to say that she had put on about 5kg in weight.

33. The plaintiff described her fitness prior to the accident as “pretty good” and said that her fitness now “could be better”: T79.49. She said that she believed she had reached a stage where her ankle did not appear to want to improve. She said she was undertaking exercises as indicated to her by her physiotherapist.

34. The plaintiff gave evidence that she had suffered from pain in the hip when she was required to wear a moon boot.

35. The “deep clean” at her house was undertaken by her daughter Melinda who lived at Port Macquarie but had four children of her own. Melinda Baker later gave evidence that her four children were adults and had left home. The plaintiff said that if her daughter did not undertake the cleaning that she would have to hire a professional cleaner. She said she gave her daughter gifts and “pocket money” for the cleaning. When asked whether it was an imposition on her daughter, the plaintiff candidly stated that all her daughter’s children had left home and she did not believe it was an imposition on her daughter: T80.43.

36. On questioning from the court, the plaintiff stated that her daughter Melinda helped with cleaning once a month for between two and three hours: T81.1‑.10. She said her grand-daughter undertook the vacuuming as quickly as possible for a period of about 20 minutes per week: T81.17.

37. The plaintiff stated that she thought her daughter did a “great job”: T81.42. She said she was also able herself to maintain a reasonable standard of cleanliness in the house between her daughter undertaking the “deep cleaning”.

38. The plaintiff then gave further evidence in relation to the care she received after she was discharged from hospital after the accident. The plaintiff stated that she returned home after her injury and the procedures in hospital on 30 October 2017. At that stage, she had three grandchildren living with her who were aged 15, nine and eight. The plaintiff stated that upon discharge she used a wheelchair as she could not weight bear. She said that her daughter Michelle attended her house daily to assist the plaintiff with self-care and duties relating to her grandchildren: T88.27. The plaintiff also said she was provided with six weeks of home care by ComPacks: T88.30. Evidence was given that the daughter Michelle transported the grandchildren to school, picked them up from school and took them to activities.

39. The plaintiff stated that her daughter Melinda moved in to her house to assist her on about 8 November 2017: T89.17. Melinda stayed at the plaintiff’s house for “up to about three months, maybe a little bit more”: T89.27. She moved into the plaintiff’s house as she did not have a car and was not a driver. During this period, the plaintiff said she was a supervisor only and Melinda did all the domestic activities as well as assisting with the plaintiff’s personal care.

40. In relation to personal care, Melinda wheeled the plaintiff in her wheelchair down a ramp outside the house to a garage where there was a toilet and shower off the garage. Melinda assisted her with showering and dressing which occurred on a daily basis at around 9:30am to 10am. She also assisted the plaintiff with her bedding and medications.

41. In relation to domestic activities, Melinda completed these daily. These included general household duties such as cooking, washing and vacuuming, although ComPacks did some mopping and vacuuming. Melinda also assisted with mowing the lawn weekly and gardening.

42. In relation to her cooking, Melinda prepared the evening meal, which took about two hours daily, initially for seven days a week. The other meals did not involve cooking. The assistance with washing included the laundering of clothing on a daily basis (about one hour) and the weekly changing and washing of bedlinen. In relation to cleaning, the plaintiff gave evidence that Melinda was not happy with the cleaning provided by the ComPacks cleaners and she undertook a “deeper clean with vacuuming and mopping”. Initially this was allegedly done for four hours daily which included assisting the children with their homework. The assistance was provided over about a three month period: T89.27; T92.31.

43. The plaintiff’s granddaughter Magenta helped Melinda with cooking, dishwashing and getting the clothes off the line. This assistance was estimated to be one hour in the morning and one hour in the evening daily: T92.27.

44. The plaintiff gave evidence that her daughter Melinda left her house at about three months after the accident. She lived close by and contacted the plaintiff regularly if she needed anything. Melinda continued to assist in mowing the lawn and weeding the garden up until about September or October 2019 when the plaintiff arranged for a gardener to undertake the task: T93. In addition, Melinda assisted with a general clean of the house every three weeks while the plaintiff undertook surface cleaning. The plaintiff’s grand-daughter Magenta continued to assist her as part of chores completed as a family unit. The plaintiff’s grand-daughter Magenta moved out of the premises in 2018. Now the plaintiff’s other two grandchildren who live with her assist her by undertaking some household chores.

45. The plaintiff assessed Melinda’s assistance with mowing and weeding from October 2017 to be about two hours per week during the warmer months and about every three weeks in other periods. The plaintiff’s gardener is paid $60 a fortnight by the plaintiff for undertaking the activities now: T94.41 cf T78.24. This started in September/October 2019: T94.49. The evidence given by the plaintiff that she did the mowing and weeding before the accident was contrary to that given by Melinda. I will consider this further below.

46. In cross-examination, the plaintiff agreed that she attended Bunnings at Port Macquarie frequently prior to the accident: T97.38. She said that she started attending there from about 2002 when she commenced renovating her house. The plaintiff gave evidence that she always entered Bunnings through the main entrance. She stated that occasionally she went to the builder’s area but usually proceeded to that through the main entrance rather than the trade entrance: T98. After further cross-examination, the plaintiff confirmed that as far as she could recall, she never entered the timber or trade entrance at Bunnings shown in the photo of it at Exhibit A page 133 prior to the accident but accepted that she exited from that entrance on a number of occasions from time to time: T99.18-T100.5. In doing so, she walked through the gap between the boom gate post and the fence. The plaintiff stated that there were generally items placed on the raised concrete area when she exited. She walked alongside the concrete island and said that she did not cross the concrete island in returning to the car park. After further cross-examination, the plaintiff assessed that she did this about once or twice per year from 2002 to about 2015: T102.37. The plaintiff confirmed that when she exited there was often produce on the concrete island. She could not recall observing the island when she exited from the timber entrance with no produce on it. The plaintiff said that she did not take notice of what was on the island other than noticing that there were gas bottles stored there and other items.

47. The plaintiff gave evidence that she was not aware that the island had a kerb around it and did not take notice of that: T103.34-.39. The plaintiff stated that her only recollection of the island was that items were placed on it when she exited: T105.1. It was put to the plaintiff that as she exited the timber entrance when she used that exit prior to the accident and whilst walking away from the warehouse, she must have seen the island had a kerb through the deep and prominent “groove” near it. The plaintiff said that that was not something which she observed: T106.18-.22. The plaintiff also said that she did not observe upon exiting prior to the accident that there was an island in the sense of a raised concrete area as it was not something that she would actually look at or observe: T106.30.

48. The plaintiff was then asked numerous questions in relation to her medical history prior to the accident. She accepted that she had various prior health issues: T107.32. In relation to these:

1. The plaintiff did not recall having lower back pain in 1983;

2. The plaintiff recalled having a workplace injury in 1993 when she worked in a nursing home as a kitchen hand. The plaintiff said that she tore her rotator cuff muscle in the right shoulder and had swelling at the C4/C5 level. The plaintiff said this difficulty had since resolved, although she had problems with her right shoulder with the rotator cuff in 2001;

3. The plaintiff confirmed that in about August 2003 she had low back pain and pain to the left knee for which she had hydrotherapy. The plaintiff confirmed that she had physiotherapy also for these problems;

4. When it was put to the plaintiff that she had prior left knee pain, back pain, neck problems and shoulder problems, the plaintiff said that she did not have these at the same time but over several years. She also confirmed having problems with her sciatic nerve “in [her] lower back”;

5. The plaintiff confirmed that she had treatment for her left knee in 2003;

6. The plaintiff confirmed that in 2008 she had a frozen left shoulder for which she had physiotherapy;

7. The plaintiff confirmed that prior to the accident including in 2008 she had problems with her weight and keeping her weight under control;

8. The plaintiff confirmed that she was regarded as unemployable as a kitchen hand due to her shoulder/neck injury and was on a disability pension from 1993 to 1998. She said this ceased when she became a foster carer in 1998 to 1999;

9. In relation to the suggestion of injury in a motor vehicle accident in April 2011, the plaintiff said that a car backed into her but she was not harmed at all. She denied that she had shoulder and right wrist pain;

10. The plaintiff confirmed that she had problems with her left knee in September 2013 when she was struck by a dog. This caused a fracture to her tibial plateau in her left knee: T114.19-.37. The plaintiff confirmed that she was referred to a care assistance program but did not take it up. She also had physiotherapy and treatment in a heated pool;

11. The plaintiff confirmed that she was diagnosed with diabetes in 2014 (T115.19: she had earlier stated 2008: T57.48) and as part of the ongoing management of that condition was referred to a dietician;

12. The plaintiff confirmed that in January 2017 she was referred for aquatic physiotherapy due to lower back pain: T115.42.

54. The plaintiff was then asked a number of questions in relation to her dealings with Burnside concerning her care of her grandchildren. The plaintiff stated that she did 99% of the domestic activities in the house prior to the accident while her grandchildren assisted in making their beds, picking up their clothes and cleaning up the dishes: T116.39. There was a degree of cross-examination in relation to matters revealed in the Burnside Uniting notes suggesting that in 2018 the plaintiff was active and coping well following her accident. The plaintiff said she could get around and take her grandchildren to activities. However, she used a stick and was able to undertake only surface cleaning. The plaintiff denied that she was referred to a Sandy Gugenberger for assistance and advice in relation to her feet concerning her diabetes and said that the referral related to her ankle problems but while she was there she had a review in relation to her feet for diabetes issues: T122.17-.30.

55. The plaintiff confirmed that she had a number of holidays with her grandchildren at Forster at a resort after the accident. It took her about an hour and 15 minutes to drive to Forster: T122.49.

56. The plaintiff confirmed her evidence that her daughter Melinda assisted her with a “deep clean” of her house once a month: T130.15. The plaintiff also confirmed that she gave Melinda little gifts or some “pocket money” for assisting her: T130.20. These included sums of $20 or $50 if Melinda needed money. The plaintiff said it was not given to Melinda for each time she performed a “deep clean”: T130.46. The plaintiff could not recall how frequently she gave money to Melinda for assisting her: T131.7.

57. The plaintiff was cross-examined in relation to any suggestion that she had a weight gain due to her injury. The plaintiff agreed that she believed she put on 10kg following her injury due to inactivity: T131.13. On further cross-examination, the plaintiff agreed that her weight fluctuated before the accident including at weights similar to that which she had in October 2018 after the accident: T131.44. The plaintiff then clarified her evidence in saying that she thought she put on around 5kg in weight: T131.48. The plaintiff rejected the proposition that she exaggerated the weight she put on so as to make out that she was disabled and could not exercise: T132.7. When it was put to the plaintiff that she did not refer to any problems with her left ankle to a care worker on 8 February 2019 because she had no longer any problems with her left ankle, the plaintiff denied this and said that she had problems which had persisted with her left ankle: T134.16. The plaintiff denied that her evidence that her daughter helped her with a “deep clean once a month” was inaccurate and said it was as accurate as she could be: T135.30.

58. It was put to the plaintiff that she saw Sandy Gugenberger, physiotherapist, because of podiatry issues relating to her Type 2 diabetes. The plaintiff rejected this and said that the consultation was about her foot and gait as her left foot angled out. While she was there she also discussed her diabetes: T137.9-.16.

59. The plaintiff confirmed that she saw a Mr Jackson Tisdell, a sports injury physiotherapist, for treatment and stated to him that she found pool exercises and physiotherapy as not beneficial to her as it tended to “irritate the injury” in her foot: T137.40. This is relevant to the claim made by the plaintiff for future membership of a pool for hydrotherapy purposes.

60. The plaintiff was then asked a large number of questions about the day of the accident and what she saw and perceived at the time. The plaintiff said that she believed the accident occurred between 9:30am and 9:45am but was unable to be specific. She confirmed that the weather was sunny and fine and she had good vision as she was wearing prescription glasses. When it was suggested to her that the raised concrete island was well illuminated by the sunny day, the plaintiff said it was shaded in the morning and confirmed this when she was challenged on the issue: T138.27-.35. In the end, after further cross-examination, the plaintiff said that she did not recall: T138.35.

61. The plaintiff confirmed that because she saw a truck in the trade entrance she back tracked her steps and went around the island to go diagonally across it: T138.48. The plaintiff was taken to photograph five at Exhibit A page 119. She rejected that the red arrow in the photograph depicted her path across the island to the boom gate and said that the path was more angled towards the side of the building: T139.20-.24 and T140.1-.15.

62. The plaintiff confirmed that the photographs at Exhibit A pages 131-2 depicted the kerb which she had to step up onto to cross the island: T140.40. The plaintiff said that as she approached the concrete island and the kerb which she intended stepping up onto she was paying attention as to where she was walking: T140.50. She also confirmed that as she stepped up onto the island she saw the kerb edge that she had to step up onto: T141.3.

63. It was put to the plaintiff that she also saw the kerb edge had a “deep and prominent groove running parallel with the kerb edge, four inches inside the kerb edge”. The plaintiff described it as a normal joint put through concrete to deal with problems with cracking and expansion and was part of the kerb: T141.25-.41.

54. When taken to the photograph at Exhibit A page 132, the plaintiff confirmed that the approximate area where she fell on the day of the accident was where the salt bags on a pallet are depicted in the photograph: T142.6. When she was further directed to the yellow triangle on the corner of the salt pallet in the photograph at page 132 the plaintiff could not say that was the area where she fell and stated that she could not “be absolutely specific. I was just walking across” but confirmed the fall was in “that area”: T142.8-.16. The plaintiff said that she did not have “total recall”: T142.27. When it was put to the plaintiff that the longitudinal groove near the kerb where the plaintiff fell could readily be seen in photographs 132 and 131, the plaintiff confirmed that she could see the longitudinal groove in photograph 131. When she was asked about photograph 132 the plaintiff said she did not see any groove: T144.6 and .24. In the end, the plaintiff said that she was not sure where she fell and particularly could not say that it was exactly where she fell where the little yellow marker was indicated in photograph 132: T144.40. However the plaintiff acknowledged that she could see an expansion joint in close proximity to the edge of the kerb where she fell: T144.48.

55. When taken to photograph four at page 119 of Exhibit A the plaintiff confirmed that the area circled was “an approximation” of where she fell: T145.8. The plaintiff then accepted that in the area where she fell, the kerb had an expansion groove which was part of the kerb similar to the expansion groove or joint where she stepped up before the accident: T148.41-T149.29. The plaintiff also accepted that the further away from the kerb the less distinct the expansion groove would be which was part of the kerb: T149.45. The plaintiff gave evidence that recognising an expansion joint would not have let her see that there was a drop present at a kerb: T150.23. The plaintiff stated that on the day of the accident she would not have been paying a great deal of attention to expansion joints. From her perception and the way she walked through, it appeared to her as if the island just continued through with an expansion joint for the concrete: T151.44: “From my perception and the way I walked through that looked like it just continued through with an expansion joint for the concrete.”

56. The plaintiff was then cross-examined in relation to the history set out in Dr Bodel's first report. She confirmed again that she did not have a total recall as to what happened on the day of the accident but then stated: “As far as I, I perceive from afar it was on the one level … It just all happened so very quickly. I was walking in that direction and bang, I was flat on my face”: T154.14-.22. When it was suggested to the plaintiff that she failed to pay attention to where she was walking for her own safety, the plaintiff said she was always aware of and fairly precise where she walked: T154.31.

57. The plaintiff was then asked questions about the domestic jobs completed by her grandchildren after the accident. The plaintiff stated that the eldest grand-daughter living with her, Magenta, left her house at probably the beginning of 2018 when she was 17 years old. She was with the plaintiff for about two and a half years. During that time, Magenta assisted in tidying up after meals, peeling potatoes, making her bed and vacuuming the bedrooms at the weekend which the plaintiff had previously stated took her about 20 minutes. Prior to the accident in October 2017, the other two grandchildren living with the plaintiff undertook minimal tasks such as stacking or rinsing dishes for the dishwasher or emptying the inside bins and bringing the garbage bins back in after they were emptied. After Magenta left the plaintiff's house, the younger grand-daughter helped the plaintiff with vacuuming the bedrooms.

58. The plaintiff confirmed that even before the accident she had aches and pains after finishing domestic duties including after doing heavy work such as mowing. However, she denied that her daughter helped her undertake a “deep clean” prior to the accident. She also denied that she found mowing and gardening difficult prior to the accident as she had a self-propelled key start mower.

59. In re-examination, the plaintiff was asked in relation to the day of the accident, after she had stepped up onto the raised section from the disabled car parking spot, whether she recalled seeing the expansion joint in the area where the accident happened. The plaintiff replied: “On the day it would have been just in passing, I wasn't fixated on it or anything”: T159.24. The plaintiff said that there was nothing about the expansion joint on the day that indicated to her there was a change in level of the surface that she was walking across: T159.30. The plaintiff confirmed that there were various concrete slabs in the car park with other expansion joints: T160.3.

Oral evidence of Melinda Baker

70. Oral evidence was given by the plaintiff's eldest daughter, Ms Melinda Baker, who stated that she was born in April 1969 and lived in Port Macquarie. Ms Baker said that she had four grown-up children who had left home with the last one leaving in October or November 2019. She said she was not employed at the time she gave evidence.

71. Ms Baker gave evidence that when the plaintiff returned home after the accident and her discharge from hospital, she became the plaintiff's carer for the next three to four months. She said she moved into the plaintiff's house to assist her: T163.31-.37. Ms Baker confirmed that she did everything for the plaintiff in this period including assisting her with showering, looking after the grandchildren residing in the plaintiff's house, cooking, cleaning and other duties: T164.3-.7. These duties included cleaning the bathroom, cleaning the floors, vacuuming, washing, preparing dinner and helping the children with their homework. When asked to assess the number of hours that this involved, Ms Baker said that she could not do this as every day was different: T164.37. In the end, when she was pressed, she said it was “all day”: T164.41. Ms Baker said that she “never stopped”: T165.1.

72. After the three to four month period, Ms Baker said she returned to her own house and came to her mother's residence if her mother needed her. When she came over she said she often did a “general clean which took all day or sometimes more than one day”: T165.14; see also T166.43. On other occasions when she went to see the plaintiff, she assisted her which could have been “anywhere between an hour and three or four hours”: T165.21. When asked whether the assistance she had described continued up until the present day, Ms Baker frankly stated that there was one time when she was sick and she could not assist. She also said she had moved to Mackay for six months to stay with her son and she did not see her mother from the commencement of the coronavirus pandemic: T165.44-166.17. However, Ms Baker confirmed that prior to the coronavirus pandemic in 2020, she had continued to do the “general clean” for her mother: T166.35-.46.

73. Ms Baker stated that when her mother first came out of hospital, the grand-daughter Magenta was there but had to be prompted to provide any help and wished to complete her tasks in the quickest time possible. Magenta assisted in relation to the dishwasher and hanging out the towels. This occurred for about one hour per day: T167.21. The plaintiff had assessed Magenta’s post- accident help as being for two hours per day: T92.27.

74. In cross-examination, Ms Baker confirmed that she assisted her mother when needed and this included undertaking lawn mowing and gardening: T168.2-.6. Ms Baker confirmed that she did the lawn mowing for her mother before the accident and her mother paid her for doing it in the sum of about $50: T168.33-.37. Ms Baker also confirmed that she assisted her mother with the gardening duties before the accident: T169.18. This was contrary to the plaintiff’s evidence. Ms Baker also confirmed that the plaintiff now had someone come in to do the mowing and the hedges: T169.22-.30.

75. Ms Baker stated that prior to the accident, the grandchild Magenta did some limited tasks around the house but did not like doing them. She said that she did not observe the various tasks that the other grandchildren did when she came to visit her mother before the accident.

76. Ms Baker was then asked questions about the period after she had moved back to her own house in about February 2018. Ms Baker denied that from about February 2018 onwards what she did on average was once a month undertake a thorough or deep clean of the house to help her mother and that the deep clean or thorough clean was for about two or three hours every month: T172.38-.45. Ms Baker denied being paid for this assistance but said that her mother would help her if she needed it: T173.5. Ms Baker then gave evidence that she was absent from Port Macquarie for various periods in 2018 and 2019. Her evidence was that she left Port Macquarie in about April 2018 at the time of her son’s wedding and was absent for 12 weeks: T174.1. She then stated that after she left her job she stayed in Mackay with her son for six months in 2019: T174.2-.6. Ms Baker stated that when she came back from Mackay in 2019 after her six-month absence, she assisted the plaintiff on average with a “deep clean” once every month for three to four hours: T174.18. This was a lesser period than she had previously indicated.

77. Ms Baker’s evidence is significant in relation to the claim for past and future attendant care services and the claim for past lawn mowing and gardening services.

The plaintiff’s medical evidence

Reports of Dr Bodel

78. The plaintiff tendered a number of reports of Dr James Bodel, Orthopaedic Surgeon.

79. In his first report dated 11 September 2018 following an assessment on the same day, Dr Bodel reported the history provided by the plaintiff to him of the accident as follows:

“She was walking through this area with her paling to seek advice about the other two palings when she inadvertently tripped off the edge of an unseen step in the concrete paving. She indicates that the edge of it was “broken” but not marked with yellow or white paint and she was unaware that the step was there. It was a single step down onto the next level but as she perceived it from afar, it appeared to be one level only. As her foot slipped off the edge of this unseen step she suffered a forced plantar flexion injury and inversion injury to the left foot and ankle. She then lost balance and fell forward.”

80. Dr Bodel stated that the x-rays of the plaintiff’s left foot and ankle revealed a bi-malleolar fracture involving the medial and lateral malleolus and a dislocation of the ankle. He recorded that the plaintiff underwent a closed reduction to reduce the dislocation of the ankle which was performed in the Accident and Emergency Centre of the local hospital and the next day there was an open reduction and internal fixation with two screws in the medial malleolus and a plate and six screws laterally, with one additional screw which did not pass through the plate. Dr Bodel recorded the plaintiff’s stay in hospital and her post-accident medical treatment. At the time of the assessment the plaintiff’s plate and screws in her ankle had not been removed. He recorded that the plaintiff stated she had no prior problems with her left foot or ankle but suffered from Type 2 diabetes. A previous neck injury had settled long ago.

81. The plaintiff complained of still having pain, stiffness and a limp associated with the ankle injury which meant that she could not wear enclosed shoes and had a sharp, stabbing pain in her ankle when she twisted the foot and ankle. She reported as always walking with a limp and needing to take pain medication.

82. Dr Bodel reported the plaintiff at that time as struggling with household maintenance and cleaning activities.

83. On examination, Dr Bodel noted a wasting in the left calf and a very restricted range of ankle dorsiflexion and plantar flexion. He also noted weakness in the ankle movement. Dr Bodel had access to a number of x-rays of the plaintiff’s ankle. One x-ray dated 8 December 2017 showed the fractures in the plaintiff’s ankle to be healing in a satisfactory position. This was confirmed in an x-ray dated 11 August 2018.

84. Dr Bodel expressed the opinion that the plaintiff suffered a fracture dislocation of her left foot and ankle in the accident on 25 October 2017. He regarded the plaintiff’s treatment as appropriate. He expressed the opinion that the plaintiff was left with ongoing pain and stiffness and an altered walk pattern because of the injuries. He regarded the plaintiff’s prognosis as guarded. He expressed the opinion that although the fractures were well aligned and were healing in a satisfactory position, there was an increased risk of post traumatic osteoarthritis which may complicate the plaintiff’s long-term outcome. He recorded the plaintiff as having ongoing pain, stiffness and weakness in the region of the left ankle. Dr Bodel expressed the opinion that the plaintiff required ongoing physiotherapy and hydrotherapy on an as needs basis. He stated that at the time of his report there was no indication for any other interventional treatment other than having the plate and screws removed.

85. In his second report dated 25 November 2018, Dr Bodel stated that there was no significant sign of arthritic change of any significance although there was an increased risk of post-traumatic osteoarthritis which he regarded as minimal. He expressed the opinion that it was unlikely that any major surgical intervention would be required. However, he expressed the opinion that the plaintiff may require anti-inflammatory medication and some physiotherapy on an as needs basis. He regarded the likely cost of that being in the order of $500 per year indefinitely: Exhibit A page 8.

86. In his third report dated 3 April 2020, following an assessment on 6 January 2020, Dr Bodel considered the plaintiff’s position following an MRI scan of the left ankle dated 3 September 2019. By this time, the plaintiff had arranged for the plate and screws in her ankle to be removed which occurred in November 2018. The plaintiff reported to Dr Bodel that the removal of the plate and screws did not make a great deal of difference to her condition. She stated that she continued self-directed home based exercises and did some hydrotherapy exercises. She reported as still having pain both medially and laterally in the region of the left ankle with the most trouble with inversion and eversion when walking on uneven ground or on the sand at the beach. At the time, the plaintiff was still taking pain relief. An x-ray following the removal of the screws and plate showed that the fractures were healed in a satisfactory position.

87. Dr Bodel expressed the opinion that the plaintiff was quite incapacitated for day-to-day activities because of her injury. The MRI scan which the plaintiff had, showed to Dr Bodel that there was now some mild secondary osteoarthritis with some bone bruising. He said that post-traumatic osteoarthritis was inevitable with the type of injury involved with the plaintiff’s age group. He expressed the opinion that the plaintiff was left with ongoing pain and stiffness in the injury to the ankle with an increased risk of post-traumatic osteoarthritis which may make things worse over time. He noted that the plaintiff had to walk with her foot externally rotated to some degree.

88. In relation to the future, Dr Bodel expressed the opinion that the plaintiff would require some intermittent physiotherapy on an as needs basis with a need to see her general practitioner every three months to monitor her progress. However, he expressed the opinion that there was no indication clinically for any other interventional treatment and particularly no definite need for surgery (Exhibit A page 14).

89. In his fourth report dated 9 April 2020, Dr Bodel emphasised the importance of the MRI scan dated 3 September 2019 as showing mild secondary osteoarthritis being post-traumatic osteoarthritis. He expressed the view that the natural history of osteoarthritic change was for progression over time with the rate of progression being difficult to predict. He regarded the development of osteoarthritis in the left ankle of the plaintiff as being due to the accident. He said that the osteoarthritic change was “slowly progressing” (Exhibit A page 17).

Report of Mr Anning

90. The plaintiff tendered a report of Mr G Anning, consultant psychologist, dated 16 November 2018.

91. Mr Anning recorded the history of the accident provided to him by the plaintiff as follows:

“Ms Baker reported that she stepped down a gutter which had been chipped away she believes by trucks going over it. She also reported that it was not marked with any yellow paint. She informed that part of her foot went down at an angle and then snapped to the side resulting in her dislocating her heel and fracturing two bones in her foot” (Exhibit A page 20).

92. In his mental state examination, Mr Anning stated that the plaintiff impressed as being quite resilient without exhibiting any agitation or distress. The plaintiff recorded her limitations in domestic activities as being unable to do some household tasks, particularly vacuuming and making beds, and she was unable to mow her lawns or go up a ladder. She described herself as having “good and bad days”. The plaintiff said her injury was still very painful at the time of assessment and that the pain disturbed her sleep.

93. Mr Anning expressed the opinion that the plaintiff’s clinical presentation and reported psychological symptoms were not sufficient enough to qualify for a psychological diagnosis. However, he expressed the opinion that the plaintiff suffered some psychological symptoms that were secondary to pain and disability and that it was possible that the plaintiff may obtain a diagnosis of adjustment disorder if she was assessed at another time. He described the plaintiff as having a “mild incapacity” in relation to her psychological symptoms (Exhibit A page 28).

Reports of Dr Porteous

94. The plaintiff tendered a number of reports of Dr Andrew Porteous, occupational physician.

95. In his first report dated 11 September 2018, following a consultation on the same day, Dr Porteous recorded the accident as follows as reported to him by the plaintiff:

“Ms Baker was walking through the entrance in the timber area in Bunnings in Port Macquarie when she tripped on some uneven ground and fell forward resulting in significant left ankle pain” (Exhibit A page 30).

96. Dr Porteous recorded that the plaintiff told him that for almost three months after the accident her daughter came and stayed to help with looking after the three foster grandchildren and was doing everything for the plaintiff including helping her with self-care and domestic care for three to four hours a day. The plaintiff stated that she then started progressing to being independent and now had help from her foster grandchildren and also paid a gardener and a lawnmower person.

97. The plaintiff reported almost constant moderate to significant pain with the left ankle restricting activities. She had a constant limp on the left side from her ankle. Sharp pain in the ankle was reported. On examination, the plaintiff had significant restricted left ankle range of motion and was walking with a limp favouring the left ankle but without a walking stick.

98. Dr Porteous diagnosed a soft tissue musculoligamentous sprain of the left ankle with a fracture dislocation and then open reduction internal fixation with ongoing considerable pain and restriction. He expressed the opinion that the plaintiff was restricted to occasional walking and standing and was restricted from walking on rough or uneven ground or from moderate or heavy lifting, pushing, pulling or carrying.

96. On page 5 of his report (Exhibit A page 33), Dr Porteous recommends a range of future treatment and pain relief needs. He expresses the opinion that the plaintiff was likely to require an arthroscopy or other surgery including eventually possibly a joint replacement or fusion either initially or at a later date. No such opinion was expressed by Dr Bodel in the reports in evidence. Dr Porteous expressed the opinion that the plaintiff would reasonably require future professional domestic and home care support for activities that she was restricted from and which would aggravate the injury symptoms, if she did not have gratuitous support (Exhibit A page 34).

97. In his second report dated 9 November 2019, Dr Porteous noted that the plaintiff had the plate and screws in her ankle removed on 20 November 2018 which was followed up with physiotherapy with a Mr Tisdell, a sports physiotherapist. The plaintiff said she had been completing exercises given to her by him. The plaintiff noted that she had been given orthotics which she said were assisting her considerably. She continued to report significant ongoing left ankle pain from her injuries. She attended walking with a walking stick and limping on the left ankle. She noted that she continued to be a foster grandmother for two grandchildren but one had moved out.

98. Dr Porteous examined the MRI scan and expressed the opinion that it was consistent with ligament strains with some ongoing joint inflammation with synovitis consistent with ongoing symptoms.

99. On page 6 of his report (Exhibit A page 40), Dr Porteous repeated his recommendations for future treatment including an occupational therapist assessment. He recommended the plaintiff continuing to have orthotics long-term.

100. In relation to domestic activities, he noted that the plaintiff could undertake self-care and was able to do most domestic activities, although she obtained assistance from one of her grandchildren with vacuuming. She still continued to have lawn mowing and garden assistance. Dr Porteous expressed the opinion that the plaintiff’s current restrictions would result in some domestic work which the plaintiff could not do without aggravating her conditions and therefore he was of the view that she would reasonably require professional domestic and home care support for activities in the future if she did not have gratuitous support. A guarded prognosis was given.

101. In his third report dated 23 April 2020, similar views were expressed as in earlier reports. Dr Porteous was of the view that the plaintiff’s condition had stabilised. He referred to and commented on a report of Ms Skibby, an occupational therapist. A limiting order was made under s 136 of the Evidence Act 1995 (NSW) such that the opinion part of Dr Porteous’ third report was limited to expressing agreement with Ms Skibby’s recommendations as to treatment and gratuitous assistance.

Report of Ms Skibby

105. The plaintiff tendered, as part of Exhibit A, a detailed and lengthy report of Ms Erika Skibby, occupational therapist, dated 12 January 2020. This followed an assessment at the plaintiff’s residence on 21 November 2019.

106. In her report, Ms Skibby records the plaintiff’s description of the accident as follows:

“She said she was walking towards the timber yard and said she did not notice the concrete slab on which she was walking had deteriorated. She said, “My foot went over the edge and next thing I was on my face … I don’t think I have ever felt that kind of pain” (Exhibit A page 50).

107. In her executive summary which commences at Exhibit A page 50, Ms Skibby sets out a summary of the limitations and problems of the plaintiff. She recorded the plaintiff as stating that her main ongoing issues were pain and reduced mobility with ongoing significant functional limitations associated with loss of movement and pain affecting the left ankle. At page 6 of her report, Ms Skibby recorded the considerable amount of gratuitous care provided by the plaintiff’s daughter, following the injury. Ms Skibby expressed the opinion that the plaintiff had an ongoing requirement for assistance with domestic tasks and home and yard maintenance tasks.

108. A summary of recommendations and costs by Ms Skibby for past and future care and treatment including for recommended equipment is set out in paragraph 1.4 at pages 7-10 of her report (Exhibit A pages 53-56).

109. This summary should be contrasted with the opinion of the defendant’s retained occupational therapist Ms Hammond. The current and future care costs and recommendations, particularly in relation to the need for domestic care, are to some degree inconsistent with the plaintiff’s oral evidence in relation to her current capacities and the assistance which she obtains from her adult daughter and grandchild. In paragraph 1.4.4 of Ms Skibby’s report rehabilitation equipment costs and adaptive technology recommendations are set out. A bathroom modification is recommended. However, the report of Ms Hammond states that the plaintiff has a second shower which she used soon after her injury. There is no reason apparent why the plaintiff could not continue to use this shower when needed in the future.

110. Ms Skibby’s report includes a number of photographs of the plaintiff’s house including of the main bathroom. There are also photographs included of the plaintiff’s left foot and ankle including of the scars as a result of the operations. At paragraph 7.3.3 recommendations are set out in relation to podiatry treatment and the replacement of orthotic devices and footwear.

Joint opinion

111. At page 104 of Exhibit A is a transcript of a teleconference between Ms Skibby and Ms Deborah Hammond, the occupational therapist retained on behalf of the defendant.

112. The result of the telephone conference was as follows:

1. Recommendation to purchase a beach wheelchair: in her report Ms Skibby recommended the provision of a beach wheelchair to the plaintiff to enable the plaintiff to cross soft sand. Following discussion between the experts in the conclave, the occupational therapists accepted that the purchase of a beach wheelchair was not necessary;

2. Orthotics and shoes: both experts agreed with the medical opinion of the defendant’s expert, Dr Powell. Both occupational therapists appeared to accept Ms Skibby’s recommendations in the light of the opinion of Dr Powell of the need for orthotics and footwear recommended and supplied by a podiatrist. Ms Skibby recommended annual replacement of orthotics and footwear. Ms Hammond deferred to medical opinion and podiatry opinion as to the frequency of replacement of orthotics;

3. Bathroom modification: Ms Skibby stood by her recommendations for the need for bathroom modifications to the plaintiff’s main bathroom. This was put on the basis that the plaintiff’s present bathroom presented a higher risk of falls due to her injury related limitations. Ms Hammond did not agree that any bathroom modification was necessary and that the plaintiff was able to transfer in and out of the shower over the bath. Ms Hammond noted that there could be minor modifications to the current bathroom to install a vertical grab rail on the bathroom wall. An allowance of $700 was given for this amendment;

4. Dietician: Ms Skibby recommended that the plaintiff would benefit from a dietician. Ms Hammond disagreed and noted that the plaintiff was previously seeing a dietician as part of diabetes management and it was reasonable for the dietician to address weight management in this consultation. In my view, there is considerable force in Ms Hammond’s comments. Any advice could be seen as part of the plaintiff’s previous dietician assistance. I consider this issue further below;

5. Podiatrist: Ms Skibby expressed the opinion that the plaintiff would require ongoing podiatry reviews to assess and fabricate orthotics. Ms Hammond deferred to the podiatrist but noted the plaintiff was seeing a podiatrist prior to the accident as part of her diabetes management;

6. Pool membership: Ms Skibby recommended that the plaintiff have a pool membership because of the assistance of non-weight bearing pool based exercise. Ms Hammond agreed with this recommendation.

113. Otherwise, both occupational therapist experts stood by the recommendations in their written reports.

Plaintiff’s liability expert

114. The plaintiff tendered a report of Mr John Dimopoulos, an engineer with experience in occupational health and safety matters and particular extensive experience in the investigation of trips, slips and falls. His report was dated 28 February 2019. In paragraph 4 of his report, Mr Dimopoulos sets out assumed facts which he states were provided by the plaintiff at interview. Paragraphs 4.8 to 4.10 of his report (Exhibit A page 115) are as follows:

“4.8  As she descended off the traffic island, she placed her left foot on the kerb (which she later realised was damaged), in preparation to step down, but her left foot gave way causing her to fall.

4.9  Thus, she suffered the injuries which form the basis of this claim.

4.10  Ms Baker said that she realised there was a kerb present however she was not expecting that the surface was damaged and uneven.”

115. These details are to some degree inconsistent with the plaintiff’s oral evidence particularly that she realised there was a kerb present to exit the raised concrete area. This must be taken into account in considering the report.

116. Mr Dimopoulos sets out the Bunnings Incident Report printed 5 March 2018 in relation to the accident. This included the following: “Weather was dry. There is some wear on the edge of the island where the fall occurred however we believe this sloping design was purposely built this way as it is the same as other islands located at the store.”

117. Mr Dimopoulos noted that he travelled to Port Macquarie to make an inspection of the site and took measurements and photographs. A number of photographs are included in his report (see Exhibit A pages 117-122). The altered height of the kerb which Mr Dimopoulos describes as being “significant damage” is shown in photographs in Exhibit A pages 120-122. It is unclear as to the relevance of the alleged damaged part of the kerb where the plaintiff’s evidence is that she simply did not see that the raised area finished and there was a drop from the kerb closer to the entrance to the timber part of Bunnings. Photographs at pages 119-121 of Mr Dimopoulos’ report show a dark line which appears to be an expansion joint delineating the concrete part of the raised concrete area and the kerb part.

118. After setting out the Standards and guidance material in his report, Mr Dimopoulos includes some discussion about the method by which people look at the area in front of them as they walk in paragraphs 6.5-6.7. A diagram showing the basic visual data of a person is shown at page 125 of Exhibit A.

119. In paragraph 7.2 of his report in the discussion and analysis section, Mr Dimopoulos notes that the assumed facts describe a scenario in which the plaintiff was entering a Bunnings store via the trade entrance “when she stepped onto a damaged and uneven section of the kerb causing her to misstep and fall. She did not see in advance that she was about to place her foot across an uneven surface”. This is somewhat inconsistent with the plaintiff’s oral evidence when she stated that she did not see that the raised concrete area had an exit kerb. Mr Dimopoulos’ report seems to place emphasis on the “missing” part of the concrete where he expresses the opinion it was damaged: paragraph 7.4. He states:

“The defect observed to the leading edge of the kerb is significant enough, in my opinion, to cause an interruption to one’s gait in the manner described. The ability of Ms Baker to see the missing section of the kerb would have been limited, as the broken section does not provide a helpful contrast to the surrounding area”: paragraph 7.4-7.5.

120. He recommended that hazards such as the broken and missing section of the kerb should be identified prior to reaching them as a person does not usually looked down at their feet when walking. At paragraph 7.8, Mr Dimopoulos expresses the opinion that the plaintiff would have had difficulty in seeing and identifying the damage to the kerb unless she was looking down at her feet just before she stepped onto it, which he regarded as being unusual for someone just about to step onto a road: paragraph 7.8.

121. In paragraph 7.3, Mr Dimopoulos expresses the opinion that Ms Baker was placed at risk of injury by the defendant in the circumstances. He states that a pedestrian hazard was created by the damaged kerb in an area where pedestrians would be expected to go, with insufficient means of warning. Measures which the defendant could have taken to prevent exposing the plaintiff to a risk of injury are set out in paragraph 7.4 which include carrying out a risk audit and repairing the kerb or barricading it off or by providing a person in the position of the plaintiff with a warning or advice about the “parlous” state of the kerb.

Photographs

122. At pages 131 to 155 of Exhibit A are a number of photographs some of which the plaintiff stated were taken by one of her daughters. In relation to the photograph at Exhibit A page 131, the plaintiff stated that the pallet of goods to the left and the sign were not present on the day of the accident but the caged area with the gas bottles to the right of the photograph were present. The raised concrete area is clearly shown in the photographs. Darker lines apparent on the photographs show the expansion joints of the kerb on each side of the raised concrete area. The photograph at page 133 of Exhibit A shows the normal direction in which the plaintiff would usually go to leave the pedestrian entrance to the timber area of the Bunnings store. The photograph at page 138 of Exhibit A shows the altered area of the exit kerb of the raised concrete area closer to the pedestrian entrance to the timber section. This is also shown in other photographs. A closer look at the area of the kerb which is altered is shown in the photograph at page 148 of Exhibit A. The darker line which is an expansion joint near the kerb closer to the timber entrance is clearly apparent in the photograph at page 148. Caution, however, must be exercised in assessing photographs, “particularly as to perspective and distance”: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54].

Evidence for the defendant

123. The defendant tendered a number of reports and medical records which became Exhibit 1 in the proceedings. It also called four witnesses to give evidence on its behalf.

Oral evidence for the defendant

Evidence of Matthew Hines

124. Oral evidence was given on behalf of the defendant by Mr Matthew Hines who was an employee of the defendant. Mr Hines stated that he was employed at the Port Macquarie store of Bunnings, having commenced there in 2012. He stated that in 2019 the Bunnings store in Port Macquarie moved from the Lake Road store where the accident, the subject of the proceedings, occurred. Mr Hines stated that he worked at the Lake Road store for seven years. In that period, he worked in various areas and positions for the defendant, including the building/timber yard near where the accident occurred. Mr Hines stated that he commenced working in the building/timber yard in 2016 and stopped working there when the store closed in February 2019, when the defendant moved to a larger store at Port Macquarie. Mr Hines said that whilst working in the building/timber yard between 2016 and 2019 he had a supervisory role which included assisting customers, rotating stock and assisting Bunnings team members.

125. Mr Hines gave evidence that he commenced work at the Lake Road Bunnings store of the defendant at 6am on the day of the accident in the building/timber yard. This was the normal start time for the yard. He recalled that an incident occurred at around 10am at the front of the timber yard. At the time of the accident, he was facing into the warehouse with his back towards the front gate to the timber yard.

126. Mr Hines said he heard a “large thud” behind his left shoulder and turned around to the left to see what it was. He noticed outside the gates a customer on the ground at the front of the store. Mr Hines said that he saw the customer approximately in line with the front wheel and driver's side door of the vehicle depicted to the right in the first photograph behind guide card D2.1 in Exhibit 1 being the photograph behind the Incident Investigation Report: T185.30-.34; T186.11. The person he saw was also approximately in line with the pallet indicated on the left of the photo. He described the customer as being on the road adjacent to the kerb and she was lying down: T186.16-.33. He could not recall how close she was to the kerb: T186.30. Mr Hines said it was a sunny day and bright. He said the plaintiff was lying in the sun when he first saw her: T187.2. In cross-examination, Mr Hines later said that he could not recall whether the island was in the shade or in the sun when he first saw the plaintiff. Mr Hines stated that he was within four to five metres of her; T187.10. He heard the plaintiff emit a scream of pain. Mr Hines confirmed, contrary to the plaintiff's evidence, that at the time he attended the plaintiff the pallet of pool salt indicated in the left of the photograph was there as was the cage with gas bottles. Mr Hines could not recall any other stock being placed on the island at this time. As far as he could recall, the photograph immediately behind the Incident Report gave a good representation of the island when he attended the plaintiff in terms of the stock on it: T188.12. He confirmed that the photograph at page 131 of Exhibit A showed the same island as in the photo immediately behind the Bunnings Incident Report.

127. Mr Hines gave evidence that when he commenced at the Lake Road Port Macquarie store the presentation of the island was the same as that shown in the various photographs in Exhibit A: T189.39.

128. Mr Hines said that he had seen customers whilst working at Bunnings coming by foot to the timber section. The routes used included crossing the island towards the entrance or coming up the roadway and walking adjacent to the right of the island as facing the timber yard entrance. He confirmed the plaintiff's evidence that access to the timber yard for pedestrians was between the mesh gate and the boom gate. The former method involved a customer stepping from the disabled carpark up onto the island, walking across the island and then stepping off the island to the entrance.

129. Mr Hines said he approached the plaintiff and offered her assistance. A team member went to get some ice packs for the plaintiff and the plaintiff manoeuvred herself to a seated position leaning against the pool salt goods to the left of the photograph in Exhibit 1 Part D2.1. Mr Hines said that he contacted Ms Charlie Inskip, a Co-Ordinator Senior Leader at Bunnings, to inform her of the accident. He then contacted an ambulance as he noticed the plaintiff's ankle was swollen and treatment was needed. He said he took brief notes relating to the incident at this time as he knew there would be a need to prepare an incident report. Ms Inskip arrived at the location prior to the ambulance arriving. Sometime later, Mr Peter Ragno, the Acting Complex Manager, arrived at the scene. After the ambulance left, Ms Inskip, Mr Ragno and Mr Hines went to the manager's office and commenced the process of completing the Incident Report. Mr Hines said Ms Inskip logged into the computer system and asked him what he recalled of the incident. He said he gave Mr Ragno and Ms Inskip the information he had recorded in his notes. In relation to the third page of the Incident Report at Part D2.1 of Exhibit 1, Mr Hines said that the description in the first five sentences was included by him:

“Immediate area check to make sure there were no trip or slip hazards. There was a cage of gas bottles on the island but not close enough to the incident to create an obstruction. Pallet of salt was not on the island. Some cars were parked in allocated parking spots as usual. Weather was dry”.

In my view, the allowance recommended by Dr Porteous is fairly modest in the light of the plaintiff’s reported ongoing pain and I accept it. This totals $4,484.40 for the remainder of the plaintiff's life ($35 per month x 12 months = $420 ÷ 52 = $8.08 per week. Multiplier 555 × $8.08 = $4,484.40).

10. Occupational therapist assessment: Dr Porteous recommends the plaintiff needing an occupational therapist assessment of her function and the ergonomic requirements at home. This has been provided in the two occupational therapy reports. I would allow nothing under this head;

11. General practitioner visits: Dr Porteous would allow general practitioner visits two to four times a year in the long term: Exhibit A page 40. Dr Bodel recommends the plaintiff seeing her general practitioner every three months to monitor her progress: Exhibit A page 14. Dr Powell seems to contemplate general management of the plaintiff's condition.

In my view, two annual visits at $110 per visit (Dr Porteous Exhibit A page 40) to the plaintiff’s general practitioner are warranted for the remainder of the plaintiff’s life to assess and manage her position. The plaintiff also requires regular management and review for her diabetes by her general practitioner. There would accordingly be some visits for this purpose where ankle problems could also be discussed. This amounts to $2,347.65 (2 × $110 annually = $220 ÷ by 52 = $4.23 weekly. Multiplied by a multiplier of 555 for the plaintiff’s life expectancy of 15 years = $2,347.65).

278. Accordingly, in total I would allow an amount for future out-of-pocket expenses excluding gardening and lawn mowing in the sum of $19,267.25.

Past domestic assistance

279. The plaintiff makes a considerable claim for past gratuitous attendant care services and damages for the loss of the capacity to provide domestic services to her grandchildren. Sections 15 and 15B of the CLA provide as follows:

“15   Damages for gratuitous attendant care services: general

(1)  In this section—

attendant care services means any of the following—

(a)  services of a domestic nature,

(b)  services relating to nursing,

(c)  services that aim to alleviate the consequences of an injury.

gratuitous attendant care services means attendant care services—

(a)  that have been or are to be provided by another person to a claimant, and

(b)  for which the claimant has not paid or is not liable to pay.

(2)  No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—

(a)  there is (or was) a reasonable need for the services to be provided, and

(b)  the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c)  the services would not be (or would not have been) provided to the claimant but for the injury.

(3)  Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)—

(a)  for at least 6 hours per week, and

(b)  for a period of at least 6 consecutive months.

(4)  If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed—

(a)  the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for—

(i)  in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or

(ii)  in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b)  if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5)  If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires.

(6)  Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

15B   Damages for loss of capacity to provide domestic services

(1) Definitions In this section—

assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously)—

(a)  any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements),

(b)  if the dependant is a minor (but without limiting paragraph (a))—any care that is provided to the dependant by a person other than the claimant where—

(i)  the person is a parent of the dependant (whether derived through paragraph (a)(i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and

(ii)  the care includes the provision of accommodation to the dependant.

dependants, in relation to a claimant, means—

(a)  such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises—

(i)  the person to whom the claimant is legally married (including a husband or wife of the claimant),

(ii)  a de facto partner of the claimant,

Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

(iii)  a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

(iv)  any other person who is a member of the claimant’s household, and

(b)  any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time.

gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.

(2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that—

(a)  in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b)  the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c)  there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants—

(i)  for at least 6 hours per week, and

(ii)  for a period of at least 6 consecutive months, and

(d)  there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants.

(3)  If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2)(c)(ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may—

(a)  in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2)(c)(i), disregard the week if assisted care was (or will be) provided during that week, and

(b)  in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2)(c)(ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period,

but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total.

(4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved.

(5)  In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, a court—

(a)  may only award damages for that loss in accordance with the provisions of this section, and

(b)  must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity.

(6) Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

(7)  A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant’s loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.

(8)  If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants while the claimant is a participant in the Scheme if (and to the extent that)—

(a)  the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and

(b)  the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant’s dependants.

(9)  Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that)—

(a)  the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and

(b)  an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act.

(10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that)—

(a)  the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and

(b)  the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant’s dependants being provided with the domestic services that the claimant has lost the capacity to provide.

(11) Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account—

(a)  the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and

(b)  the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and

(c)  the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.”

280. Under s 15 of the CLA, gratuitous attendant care services damages are limited. No damages may be awarded to a plaintiff for gratuitous attendant care services unless the court is satisfied that there was a reasonable need for the services to be provided, the need has arisen solely because of the injury to which the damages relate, the services would not be provided to the plaintiff but for the injury and the services are provided for at least six hours per week and for a period of at least six consecutive months: s 15(2) and (3) of the CLA.

281. See also s 15B(2)(c) of the CLA. Section 15B also requires services in relation to children or grandchildren to be provided for at least six hours per week for at least six consecutive months. As stated above, White v Benjamin [2015] NSWCA 75 seems to hold that s 15(3) and s 15B(3) are separate requirements for the two different types of care.

282. As held by the Court of Appeal in Samco Pty v Wurth [2015] NSWCA 117 at [91] an assessment of past domestic services is to be made on a weekly basis and not an average over many weeks. Looking at a plaintiff's damages in terms of periods having regard to her medical condition is however permissible.

283. The two occupational therapists in their reports looked at past domestic services in terms of periods: see paragraph 1.4.1 of Ms Skibby's report and paragraph 2.2.1 of Ms Hammond's report. There are substantial differences of opinion in relation to these periods. The opinions have to be seen in the light of the plaintiff's evidence that she was in hospital for about six days (T72.37), was totally non-weight weight bearing for about six weeks (T73.21), and then was only partially weight bearing for a considerable period. The plaintiff stated that she had an arrangement with an entity called ComPacks who provided homecare for about six weeks (T88.30) and that her daughter Melinda moved into her house and stayed for about three months: T89.27. In the week after the plaintiff was in hospital, her daughter Michelle came to look after the grandchildren (T88.28).

284. The plaintiff gave evidence that after Melinda moved out, the plaintiff undertook more duties and Melinda came about once a month for a thorough clean where she stayed about two to three hours: T81.1-.10. A grand-daughter also helped for about 20 minutes doing vacuuming per week: T81.14; T157.1. This grand-daughter also provided other domestic services for a period of about two hours per day: T92.27. The granddaughter also provided domestic household services, however, prior to the accident: T156.27-.34 and T171.9-.27. As is discussed further below, the plaintiff's daughter Melinda suggested that the thorough clean she conducted after the accident took longer and was about one day or even possibly two days every month with other intermittent assistance from between an hour to three to four hours as required: T165.14 cf T174.18.

285. The issue for the court is whether the plaintiff has satisfied the requirements for intensity and duration set out in ss 15 and 15B of the CLA. That is, that gratuitous attendant care services or services to third parties who are dependents within s 15B were provided for at least six hours per week and for a period of at least six consecutive months.

286. The evidence establishes that Melinda was present in the plaintiff’s house providing assistance for about three months after the plaintiff returned from hospital. Accordingly, the court must focus on the period from the day of the accident until about three months after 8 November 2017 (when Melinda came to stay), say to 8 February 2018. It must also consider what changed after Melinda left the plaintiff’s house. It should also be noted that Ms Melinda Baker gave evidence that she was away from Port Macquarie for 12 weeks in 2018 and for six months in 2019: T174.1-.9.

287. I find, doing the best I can on the limited evidence, that:

1. The plaintiff’s grand-daughter Magenta assisted the plaintiff with domestic tasks for about an hour per day prior to the accident: T156.18-.34. After the accident, the grand-daughter assisted for about two hours per day: T92.27;

2. The plaintiff’s daughter Melinda assisted the plaintiff after she left the plaintiff’s house. I will consider the degree of assistance below;

3. The assistance provided by the daughter after the accident with domestic and personal duties would not have been provided but for the plaintiff’s injuries in the accident and it was reasonably needed;

4. The additional assistance provided by the plaintiff’s grand-daughter Magenta after the accident would not have been provided but for the accident and it was reasonably needed;

5. The grand-daughter Magenta left the plaintiff’s house at the beginning of 2018: T156.2;

6. There is no evidence whether anyone took up all of Magenta’s additional assistance after the accident. However, I find that the plaintiff’s other grand-daughter has undertaken the 20 minutes of vacuuming when Magenta left: T157.1. This was done by Magenta before the accident: T156.29.

288. I therefore consider the period from the day of the accident to 8 February 2018 and then the period after this date. The degree of assistance should be considered for the following periods:

1. 25 October 2017 – 30 October 2017: during this period the plaintiff was at Port Macquarie Hospital as an inpatient. She had three grand-children at home. There is no direct evidence as to who assisted in this period in relation to the grand-children. The plaintiff’s daughter Michelle assisted when the plaintiff came home and she probably assisted when the plaintiff was in hospital in relation to the grand-children but there is no direct evidence on the issue, including as to the time of any assistance. Ms Skibby allows nothing for this period: Exhibit A page 86. Ms Hammond allows 40 hours for a week of childcare. I accept Ms Hammond's opinion in relation to this period which is logical and can be inferred from the later help provided and the ages of the children. Forty hours of childcare is allowed. However this does not satisfy the duration requirement under s 15B(2)(c) of the CLA. Unless those services were provided for a period of at least six consecutive months no allowance can be made. This will be considered further in the later periods;

2. 30 October 2017 - 7 November 2017: The plaintiff’s daughter Michelle assisted in this period with care of the plaintiff, domestic duties and childcare assistance: T88-89 especially at T88.27. Ms Skibby’s allowance for this period was 47.25 hours per week. Ms Hammond allows a lesser amount due to the ComPacks assistance. Overall, I prefer the detailed reasoning for this period in Ms Skibby’s report, subject to an allowance for the ComPacks assistance. Taking into account the ComPacks assistance provided to the plaintiff, I would reduce the hours allowed to 40 hours per week, consisting of 10 hours of personal care, 20 hours of domestic assistance and 10 hours of childcare assistance/child transport;

1. 8 November 2017 (T89.17) – 20 December 2017: Ms Skibby allows 47.25 hours per week for this 6.29 week period. Ms Hammond allows a more limited period and amount taking into account the assistance of ComPacks, more limited domestic assistance and childcare assistance. The plaintiff gave evidence that she preferred the care of her daughter and her more thorough cleaning. I accept that evidence. I accept the evidence that Melinda was helping substantially in this period. I find that Magenta was providing about one hour per day of required additional assistance in this period. Having considered the two occupational therapy reports, I prefer the detailed opinion of Ms Skibby on this issue as being more consistent with the plaintiff’s evidence and the severity of her injury particularly as she was totally or partially not weight bearing for over three months. I allow the amount recommended by Ms Skibby reduced to 40 hours per week because of the ComPacks assistance;

2. 20 December 2017 – 8 February 2018: There are different opinions of Ms Hammond and Ms Skibby in relation to the hours. Ms Skibby allows a greater number of hours of assistance and childcare than Ms Hammond. Magenta was still assisting in this period. Having regard to the plaintiff’s evidence and the analysis of the two occupational therapists, I prefer the opinion of Ms Skibby for the period I have indicated as being more consistent with the level of the assistance required by the plaintiff due to her injuries. Thus I allow 28 hours per week for the period indicated as set out in Ms Skibby’s report: paragraph 7.1 Exhibit A page 86;

3. 9 February 2018 – 19 November 2018: By this time on the evidence, the plaintiff's daughter Melinda had left the plaintiff's residence to return to her own residence. She only came around on an intermittent basis as the plaintiff required and undertook a “deep clean” once a month with some irregular additional assistance as needed: T165.14. The plaintiff was able to drive. Her two younger grandchildren were also assisting with miscellaneous small domestic duties. Magenta had left the plaintiff’s house: T155.42-T156.2. The evidence establishes assistance by the plaintiff’s daughter for about 2 hours per week. The younger grand-daughter provided very limited assistance with vacuuming per week. There is no persuasive evidence childcare was still provided or needed by anyone. No such need was mentioned by the plaintiff in her oral evidence. Accordingly, in the light of the above analysis, I am not satisfied that the intensity and duration requirements for attendant care services or care services to the plaintiff’s grandchildren under ss 15 and 15B of the CLA are satisfied for this period. Even taking the plaintiff's daughter's evidence at its highest, an amount of at least six hours per week has not been established. I reject Ms Skibby’s recommendations to the contrary. Contrary to the plaintiff’s submissions, I prefer the evidence of the plaintiff and Ms Melinda Baker which was subject to cross-examination and was thus tested;

4. 20 November 2018 – 4 December 2018: The plaintiff had her plate and screws removed on 20 November 2018. It seems to me that the plaintiff would clearly have required additional assistance in this period and possibly childcare assistance. However, there was no evidence that the intensity or duration requirements under s 15B were satisfied or that the intensity and duration requirements under s 15 were satisfied. I would therefore allow no amount for this period. The figures set out in Ms Hammond’s report should be accepted;

5. 4 December 2018 – date of trial: Again, the evidence did not satisfy me that the intensity and duration requirements of s 15 and s 15B were satisfied. Ms Skibby's recommendations for this period do not appear to be established on the plaintiff's oral evidence or Ms Melinda Baker's oral evidence. It seems on the evidence of the plaintiff that about one hour per week of assistance was provided gratuitously by Melinda in this period. On Melinda's evidence about two to three hours of gratuitous assistance was provided by her to the plaintiff per week in the period: cf T174.18. This does not satisfy the requirements of intensity and duration in ss 15 or 15B. I reject the evidence of Ms Skibby for the period from 4 December 2018 as being inconsistent with the oral evidence of the plaintiff and Ms Melinda Baker which I prefer as it was tested in cross-examination;

6. Conclusion: Whilst the intensity requirement of both sections is satisfied until 8 February 2018, the duration requirement is not satisfied for any relevant period of at least six consecutive months. The period of 25 October 2017 to 8 February 2018 is less than 6 months. Therefore the claims for past services under ss 15 and 15B of the CLA are rejected.

Future domestic assistance

289. Very substantial sums were claimed in the occupational therapist report of Ms Skibby for future domestic assistance for the plaintiff. Very limited future assistance is recommended by Ms Hammond which does not satisfy the intensity requirement in s 15: Hammond report page 33.

290. The plaintiff gave evidence that she could undertake most aspects of domestic duties presently, apart from more demanding cleaning duties: T79.10-.18. The plaintiff's evidence was that her daughter Melinda and her grand-daughter did the inside cleaning and vacuuming which she could not do: T78.37-T79.8.

291. The domestic assistance provided by the daughter Melinda was, according to the plaintiff, provided about once a month for two to three hours: T81.1-.10. The vacuuming was provided by the plaintiff’s grand-daughter for about 20 minutes per week: T81.12-22. This was done by another grand-daughter prior to the accident. The plaintiff’s daughter gave a higher estimate of all day once a month or possibly into a second day: T165.16 cf T174.18. The plaintiff’s daughter appeared to have some difficulties providing accurate estimates of the hours of assistance: T164.37, T165.1 T165.12-.22. In my view, the plaintiff’s estimate appeared to be more reliable and I prefer it.

292. Even if the plaintiff’s daughter's estimate is accepted, in my view the gratuitous attendant care services provided by the plaintiff’s daughter and grand-daughter do not satisfy the requirements of intensity of at least six hours per week set out in s 15(3) of the CLA. No damages may be awarded to a plaintiff for gratuitous attendant care services provided to the plaintiff unless the services are provided and are to be provided for at least six hours per week. Even allowing for the plaintiff’s daughter providing say eight hours per month for a thorough or “deep clean” and occasional additional services when required (T165.20-.22) and allowing 20 minutes per week for vacuuming for the younger grand-daughter, the provision of likely future gratuitous attendant care services does not meet the intensity requirement of at least six hours per week.

293. Accordingly, in my view, no amount should be allowed for future gratuitous attendant care services as claimed by the plaintiff.

Future commercial assistance

294. It is clear that in order for a person to claim an award, whether by way of a buffer or not, for future paid commercial assistance, a need for that assistance arising from a breach of duty of care must be established by the plaintiff: Smith v Alone [2017] NSWCA 287 at [73-77].

295. I have already dealt with the plaintiff's need for future lawn mowing and gardening assistance above. In Smith v Alone, Macfarlan JA referred to asking the question whether commercial care was “necessary” (at [73]) and whether commercial care would be “needed in the future”: at [75]. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal held that there was no evidence in that case that commercial care was necessary. The Court of Appeal in Galderisi at [18] referred to “a need for commercial domestic assistance likely to arise in the future”.

296. In the present case, since a period of about three to four months after the accident, the plaintiff’s daughter has been assisting the plaintiff with a thorough, or as the plaintiff called it a “deep clean” (T78.39) about once a month (T81.5). The plaintiff estimated the time it took her to be between two and three hours: T81.9. I have preferred that estimate.

297. As to whether there is a need in the future for commercial care as opposed to the plaintiff’s daughter and grandchildren continuing with their assistance to the plaintiff, I am satisfied that it is very likely that the plaintiff’s daughter Melinda and one or other of her grandchildren will continue to provide her with domestic assistance. Even after the grandchildren eventually grow up and leave home, I think it is very likely that the plaintiff’s daughter Melinda will assist her. The plaintiff gave evidence that there was no imposition on her daughter Melinda in assisting her with the cleaning as all her children have left home and are independent and her daughter is able to assist her: T80.43 and T78.48. The evidence of the plaintiff’s daughter Melinda was to a similar effect. She appeared very keen to assist her mother in any way possible, to her credit.

298. I find that the plaintiff’s daughter, and grandchildren where necessary, will continue to provide domestic assistance as the plaintiff requests that or needs it. An exception is handyman assistance, which I have referred to above and for which I have allowed a buffer.

299. The defendant concedes, properly in my view, that Melinda’s various absences from Port Macquarie in the past to visit her son, may warrant an allowance for future commercial assistance for a thorough monthly clean. Melinda may also be sick or may suffer injury herself. The defendant allows $10,004.57 as a buffer (calculated as three hours per month for a period of 10 years ($35 x 3 hours x 12 months = $1,260 per annum or $24.23 (rounded) per week) (5% multiplier for 10 years 412.9 x $24.23 = $10,004.57). I accept that such an award is justified. Ms Skibby allows for a higher hourly rate (see page 94 of her report). I allow the assistance proposed by the defendant at $50 per hour, allowing a slight reduction for the possibility that the care may not be needed as provisioned for. This arrives at the sum of $14,294.60 ($50 x 3 hours per month = $150 x 12 divided by 52 = $34.62 per week x 5% multiplier for 10 years 412.9 = $14,294.60).

300. I reject the plaintiff’s submission that a higher sum is appropriate as recommended by Ms Skibby, in the light of the evidence from the plaintiff and Melinda Baker which I have referred to above and accept. Contrary to the plaintiff’s submissions, Ms Melinda Baker and the grand-daughter seem to provide all the domestic assistance which the plaintiff presently needs in response to her injuries in the accident.

301. In my view, no additional need arising from the accident has been established for future commercial assistance.

Summary

302. Accordingly, I would allow the following amounts as damages. The reduction of 20% for contributory negligence needs to be applied to the figures:

Non-economic loss

$92,000

Economic loss

Nil (None claimed)

Past out of pocket expenses

Past lawn mowing/gardening

$2,782.35

$1,620

Past domestic care

Nil

Future out of pocket expenses

$19,267.25

Future lawn mowing/gardening

$12,301.57

Future gratuitous attendant care services

Nil

Future childcare services

Nil

Future commercial services

$14,294.60 (buffer)

Disposition

303. For the above reasons, I make the following orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed.

3. Liberty to any party to make an application within 14 days to vary order (2) above.

4. The exhibits are to be retained for 28 days.

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Decision last updated: 18 June 2020