Barnes v New Zealand Holdings Pty Ltd - [2011] WADC 208

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BARNES -v- NEW ZEALAND HOLDINGS PTY LTD [2011] WADC 208

CORAM: DAVIS DCJ

HEARD: 19 - 25 MAY 2011

DELIVERED : 24 NOVEMBER 2011

FILE NO/S: CIV 3645 of 2009

BETWEEN: KATHLEEN JEANNE BARNES
Plaintiff
AND
NEW ZEALAND HOLDINGS PTY LTD
Defendant

Catchwords:

Negligence - Personal injury - Duty of care - Breach of duty - Principles of causation under the Civil Liability Act 2002 - Assessment of damages - Turns on own facts

Legislation:

Civil Liability Act 2002, s 5B, s 5C, s 5D, s 9, s 12
Social Security Act 1991 (Cth) s 23(5D), s 43
Workers' Compensation and Injury Management Act 1981, s 92

Result:

Judgment for plaintiff
Damages assessed at $85,584.59

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr S R Sirett

Solicitors:

Plaintiff: Simon Walters
Defendant: Downings Legal

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

Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Avenhouse v Council of the Shire of Hornsby (1998) 44 NSWLR 1
Baldwin v Lisicic [1993] NSWCA 18
Benic v The State of New South Wales [2010] NSWSC 1039
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Blaine v The Owners of Duesburys House Strata Plan 7239 [2010] WADC 81
Brambles Australia Ltd t/as Brambles Industrial Services v Sandy [2006] NSWCA 357
Brown v Dato Pty Ltd [2006] WASCA 170
City of Stirling v Tremeer (2006) 32 WAR 155
Cohen v Ninkovic [2000] WASCA 169
Commissioner of Main Roads v Jones (2005) 79 ALJR 1104
Department of Housing and Works v Smith (No 2) [2010] WASCA 25
Fox v Wood (1981) 148 CLR 438
Francis v Lewis [2003] NSWCA 152
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Grainger v Williams [2009] WASCA 60
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, [2003] HCA 61
Insight Vacations Pty Ltd v Young [2010] NSWCA 137
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Purkess v Crittenden (1965) 114 CLR 164
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Shire of Leonora v Cooper (2008) 51 MVR 397
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
State of New South Wales v Corby [2010] NSWCA 27
State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168
Vairy v Wyong Shire Council (2005) 223 CLR 422
Van der Velde v Halloran [2011] WASCA 252
Varga v Galea [2011] NSWCA 76
Watts v Rake (1960) 108 CLR 158
Waverley Council v Ferreira (2005) Aust Torts Reports 81‑818; [2005] NSWCA 418
Woolworths Ltd v Strong [2010] NSWCA 282
Wyong Shire Council v Shirt (1980) 146 CLR 40

DAVIS DCJ: During March 2008 the defendant, a company carrying on the business of the supply and installation of fire prevention systems, was carrying out work on the installation of a fire system at the Forrest Chase Centre, Forrest Place, Perth. Part of the work involved running cabling through the ceiling area of the Myer department store at Forrest Place from and to retail outlets on either side of the Myer store, so as to connect those retail outlets to the fire system.
At approximately 8.30 am on 25 March 2008 an employee of the defendant, an apprentice electrician Mr Christopher Williams, began work to pull cabling from a chemist store next door to Myer and then take the cabling across the ceiling space of the Myer store entrance on Wellington Street. The work which Mr Williams did and the events which followed on that morning were captured on CCTV (closed circuit television). Looking towards the Wellington Street entrance, Mr Williams was working from a ladder placed in the left hand corner of the store, very close to a set of automatic sliding glass double doors. He had placed three orange coloured cones around the feet of the ladder, and these protruded into the door space of the automatic doors. At approximately 8.37 am the plaintiff, Mrs Barnes, a receptionist employed by Myer, arrived for work. As she was walking through the automatic doors, just to the right of the cones, she was struck on the head by one of two ceiling panels which had fallen from the ceiling above her.
As a result of the injuries she received in this accident, Mrs Barnes had some time off work and received payments of workers' compensation from Myer. Mrs Barnes was unable to pursue Myer for common law damages, due to the restrictions on a worker bringing a claim at common law against his or her employer, contained in pt IV div 2 of the Workers' Compensation and Injury Management Act 1981.
Mrs Barnes did, however, pursue her claim for damages against the defendant, alleging that this accident occurred as a consequence of the work which the defendant was doing within the ceiling space in close proximity to where she was walking and that the accident was caused by the negligence of the defendant.
The defendant, while admitting that it was conducting work in the space above the ceiling of the Myer store, denied that the accident occurred as a result of any negligence on its part.
I must decide whether the defendant was negligent, and I must also assess the quantum of Mrs Barnes' claim for damages.

Liability

Legal principles relevant to liability

The Civil Liability Act 2002 applies to Mrs Barnes' claim. Section 5B(1) of the Civil Liability Act provides:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section s 5B(2) of the Civil Liability Act sets out factors to be considered when determining whether a reasonable person would have taken precautions against a risk of harm. These include the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm.
In Waverley Council v Ferreira (2005) Aust Torts Reports 81‑818; [2005] NSWCA 418, Ipp JA (with whom both Spigelman CJ and Tobias JA agreed) observed at [27] and [45] that s 5B(1) and s 5B(2) of the Civil Liability Act 2002 (NSW), which are in similar terms to s 5B(1) and s 5B(2) of the Civil Liability Act (WA), reflect common law principles and that the matters set out in s 5B(2) are, in substance, a reiteration of Mason J's remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 ‑ 48.
At common law, it is possible to conclude as a matter of common sense and common knowledge that a particular act or omission will give rise to a foreseeable risk of injury of another: see Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; applied in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 276 ALR 375 [84] ‑ [88].
The Civil Liability Act s 5B(1)(a) specifies that in relation to the issue of foreseeability, the plaintiff must establish either the defendant's actual or constructive knowledge of the risk of harm. In Benic v The State of New South Wales [2010] NSWSC 1039, [70] ‑ [105], Garling J explained, when considering the same provision in Civil Liability Act (NSW):
In my opinion, the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening when using common sense.
At common law, the court is required to identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [192]. That is also what the court must do pursuant to s 5B of the Civil Liability Act: Waverley Council v Ferreira [27] and [45]; Department of Housing and Works v Smith (No 2) [2010] WASCA 25 [87] and [88] (Buss JA). The question must be asked – what precautions would a reasonable person in the defendant's position have taken?
Liability must be determined without the benefit of hindsight and prospectively, and not retrospectively by asking whether certain actions, if taken by the defendant, could have prevented the plaintiff's injury: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [18], [65] and [66], and Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 [31] (also discussing the application of the Civil Liability Act (NSW), applying Vairy v Wyong Shire Council (2005) 223 CLR 422 [126] ‑ [129]); see also Department of Housing and Works v Smith (No 2) [34] (Pullin JA); [87] and [88] (Buss JA).

The issues in this case relating to liability

The issues were defined by the pleadings, supplemented by submissions filed by each party.
In the further amended statement of claim it was alleged that the defendant owed a duty of care to persons in the vicinity of works being performed by it, including Mrs Barnes, to take all reasonable steps to ensure that no injury was suffered by them as a consequence of the performance of those works. This duty was pleaded to include warning persons in the vicinity of the works of the fact of the work being undertaken and taking reasonable care to ensure, when work was being performed above head height, that items did not fall onto persons underneath and in the vicinity of the works.
It was pleaded that the accident occurred as a consequence of the acts of the defendant's servant or agent working within the roof space in close proximity to where Mrs Barnes was walking. The accident was caused by the negligence of the defendant. The pleaded particulars of negligence (par 7) included a plea that the defendant failed to take due care when performing the work, thereby causing the panels to fall on the head of the plaintiff, failed to move the panels onto the floor or elsewhere so as to remove the hazard before commencing work and failed to perform the work in a proper and workmanlike manner. Other pleaded particulars of negligence included failing to give a warning, failing to follow proper protocol by undergoing an induction programme and failing to restrict access below the area and in the vicinity where the work was being carried out.
In written submissions before trial it was said on Mrs Barnes' behalf that the defendant was negligent in failing to properly restrict access to the area surrounding where Mr Williams was working at the time and failing to properly ensure that he could perform the work safely. That should have included, at the very least, inspecting the means by which the ceiling panels were held in place to ensure that they would not fall. Further it was submitted that Mr Williams should have roped off a greater area beneath where he was working or asked Myer security guards to shut off the automatic doors nearest to where he was working, and open another set of doors on the other side of the Wellington Street entrance.
The pleaded defence is little more than a bare denial. It was admitted that the defendant owed a duty to take reasonable care so as to prevent injury that might arise by reason of the manner of the performance of its work. It was admitted that on 25 March 2008 an employee of the defendant was conducting work in the space above the ceiling, removed a single tile (panel) from the ceiling and that during the course of the work another panel further along in the ceiling fell. The allegations of negligence were denied. In written submissions before trial, however, the defendant conceded that the movement of the cables in the ceiling space may have factually contributed to the dislodgment of ceiling panels above Mrs Barnes (defendant's trial submissions, par4). Notwithstanding this concession it was submitted that the dislodgment only occurred because of the inadequate design of the ceiling and damage that had occurred at some earlier time to the ceiling structure by the acts of unknown persons performing maintenance on the automatic doors. Those two matters made it possible for the ceiling panels to dislodge when subjected to movement of the door. The defendant contended that it had no knowledge of these matters, had no reason to suspect that the ceiling panels might become dislodged as a result of the work it performed and did not have any basis to suspect that the ceiling panels might become dislodged as a result of that work. The defendant, it was said, undertook the work in the reasonable expectation that the ceiling panels would remain securely in place unless pressed upwards and manoeuvred by hand out of the frame. As put by counsel, the defendant's employee was entitled to rely on the ceiling to perform its job in the absence of any knowledge that the ceiling was 'defective'.
Having regard to the pleadings, the evidence, the submissions of the parties at trial and the legal principles which apply, I consider that the following issues are relevant to liability:
1.What was the structure of the ceiling?
2.What ceiling panels fell? Were they immediately adjacent to the area where Mr Williams was working?
3.How did the ceiling panels fall?
4.Was the ceiling 'defective', as alleged by the defendant?
5.Was the risk of harm from the ceiling panels falling foreseeable - that is, was it a risk of which the defendant knew or ought to have known?
6.Was the risk of harm from the ceiling panels falling not insignificant?
7.Breach of duty: What precautions would a reasonable person in the defendant's position have taken in response to that risk?
There is no issue of any contributory negligence on the part of Mrs Barnes.

What was the structure of the ceiling?

The photographs produced at trial (in particular, exhibit 16) show that the Wellington Street entrance of the Myer store was all glass with three sets of automatic sliding glass double doors.
There was some evidence about the structure of the ceiling from an expert builder called by the defendant, Mr Richard Machell. Mr Machell is a registered builder and has been for the past 22 years. Although he studied for a Diploma of Builder's Registration 21 years ago he never completed that diploma. He has worked as a manager for an architectural practice in the Kimberley for eight years delivering government and private projects.
Mr Machell was asked to investigate and report on the relevant part of the ceiling in the Myer store. He confirmed that the area of ceiling to be inspected was a number of 'plasterboard ceiling panels installed at the first floor entry level to the Myer store facing the overpass that leads to the train station and directly behind the glass sliding doors providing entry into the store'. (He was also asked specific questions concerning the ceiling, which I will deal with when I review the issue of whether the ceiling was defective).
For the purpose of Mr Machell's report he was provided with two documents, a statement of Mr Williams dated 19 January 2010 and a sketch plan. Mr Machell then attended the store on one occasion, made some observations and prepared a report dated 5 July 2010. Included in that report were some photographs taken by Mr Machell.
From the observations that Mr Machell made in his report, from his evidence at trial, as well as the photographs, these are the findings I make concerning the ceiling and how the ceiling panels were fixed.
The ceiling comprised two parts - a gypsum based sheet ceiling lining, commonly referred to as a plasterboard ceiling lining, and an area of removable panels approximately 500 mm wide.
The first part of the ceiling, which I will call the fixed ceiling, was installed on a concealed grid ceiling suspension system connected to the underside of the concrete floor slab of the level above, approximately 1,400 mm below the level of the concrete floor slab.
At the edge of the fixed ceiling, was an area of removable ceiling panels. These ceiling panels, which were also referred to during the trial as ceiling tiles and access hatches, ran along the length of the Wellington Street entrance, parallel to the glass and automatic doors.
Mr Machell said (and it was not in dispute) that this area of removable panels did not use a 'proprietory system', that is a standard system provided by a manufacturer of plasterboard. It was more likely that this was a solution provided by a person who installed the ceiling.
The ceiling panels were constructed from plasterboard 10 mm or 13 mm thick, approximately 1,200 mm long and 500 mm wide and had a metal stopping bead installed to at least two sides, the long side of each. Each ceiling panel had two 'D' handles, to facilitate its removal for the purpose of accessing the ceiling or roof space, accessing the tracks and motors which controlled the automatic doors, as well as security cameras and other services in the ceiling void. On the long side closest to the Wellington Street entrance glass and automatic doors, the ceiling panels were supported by an L-shaped aluminium or steel angle, approximately 20 mm wide, screw‑fixed to an about 90 mm thick reconstituted timber board or panel covering the door tracks inside the ceiling. In his report Mr Machell generally referred to the L-shaped angle as the 'supporting angle'. At trial the board or panel to which the supporting angle was fixed was described as the fascia (Mr Machell in his report referred to it as the fascia board). The fascia ran the length of the Wellington Street entrance and the L‑shaped supporting angle was fixed to that.
On the other side, away from the automatic doors, there was what Mr Machell described as 'P50 Rondo', a shadow angle installed to the ceiling panel which in turn overlapped the fixed ceiling. Along the edge of the fixed ceiling there was what appeared to be a stopping bead, like a metal reinforcing bead.
The ceiling panels therefore sat on the L-shaped supporting angle which was fixed to the fascia on the side which ran parallel to the glass and automatic doors on the Wellington Street entrance, and a stopping bead on the edge of the fixed ceiling area on the other side. During trial the frame or structure on which the ceiling panels sat was referred to as the frame or recess. I will refer to it as the recess.
Mr Williams gave evidence that the day after the accident, when he was walking past the area again, he noticed that there were three screws on each side of each panel through the trim, (on the fixed ceiling side) which had not been there before. These screws were also present and noted by Mr Machell in his report. In relation to the change in the way the ceiling panels were secured, I should observe that the fact that a change was made after the accident does not affect my consideration of what, if anything, the defendant in this case should have done before the accident: Kuhl v Zurich Financial Services Australia Ltd [94], [96].

What ceiling panels fell?

Mr Williams in cross‑examination stated that the ceiling panel he removed he would call number one. This was the ceiling panel in the left‑hand corner of the Myer store entrance. The ceiling panels which fell were numbers two and three. These were the two ceiling panels immediately adjacent to where Mr Williams was working. That was confirmed in evidence from two security guards from Myer, Mr Basil Scaffidi and Mr Marshall Graham, who were present at the Wellington Street entrance at the time of the accident.

How did the ceiling panels fall?

The evidence concerning how the ceiling panels fell consisted of the CCTV footage produced and played during the trial and the evidence from Mr Williams. Mrs Barnes did not see how the panels fell and had little memory of the accident. The evidence from the two Myer security officers contributed little to this issue as they also did not see how the panels fell.
Mr Williams recalled what he was doing on the morning of 25 March 2008 (ts 152):
What were you doing on that day? What was the work that you had to do on that day---Just the same as always. Getting - cos we could only get in certain shops at certain times, some days I'd go in one shop where I could get in and they'd let me in there and then I'd pull some cables across and then fit off two smoke detectors. And then I'd jump back to a shop before then, but then I saw three security guards at Myer and decided I'd try to get the cables across the front of the door there, the entrance.
Mr Williams went in and spoke to the security guards and asked if it was allright if he did some work at the front, explaining he had to get some cables across the front of the doors in the roof space. They said it was fine.
Based on the evidence of the two security guards, Mr Scaffidi and Mr Graham, only one of them, Mr Scaffidi, had a discussion with Mr Williams. Mr Scaffidi stated that the electrician approached him and a colleague who was standing at the door at the time. The electrician said there was a cable on the chemist side of the building, in the corner, which would be a two minute job. All he had to do was pull it through and it would take 2 to 3 seconds to pull through. Mr Scaffidi told the electrician it was his responsibility, he did not want to know about it and left it at that.
In cross‑examination Mr Williams was asked if he was in a hurry to get this done, to which Mr Williams responded 'I obviously wanted to get it done, yes'. He agreed that he was not really worrying about safety issues at the time, saying that he honestly thought that it was safe.
Mr Williams gave evidence that he told the security guards that he would 'bunt off' his area, so to that extent he had thought about safety. What he did to bunt off the area was to put out some orange cones, described by him as 'Hi-Vis' cones. Then he proceeded to put up his ladder, which he climbed up. He then removed one of the ceiling panels, placed it in the ceiling space of the fixed part of the ceiling and then pulled cables out from the chemist.
In cross‑examination it was put to Mr Williams that ordinarily when he got up in a ceiling he would have a look around to see how everything was held up and he responded 'A quick – yeah, a quick glance'. He suggested he did have a 'quick glance' of the ceiling space on this occasion but there was nothing to indicate to him that there was anything about this ceiling that he had not seen before.
After pulling cables out from the chemist shop next door, Mr Williams described what he did next:
Well, previously working in the chemist we would do our bit there with the wiring and fitting of the detector and then we'd drill a hole above their ceiling space and then poke a cable through, say about 100 ml of cable would be hanging out in the roof space of Myer's, and then what I'd do, when I gain access to Myer's, I pulled that cable out of the wall into the Myer's and down, had it just sitting down on the floor where my ladder was. And then what I would do, would grab a piece of conduit and then I'd carefully guide it up into the roof and then slide it across the supported piece of the ceiling to the other side and then I would go and proceed to take a tile out the other side and take the cable onto the conduit and slide it across.
He had only just started this work when the ceiling panels fell.
I have carefully reviewed the CCTV footage, both during and since trial. The footage is taken from outside the Myer store, looking at the left hand side of the Wellington Street entrance and the set of automatic sliding glass double doors where Mr Williams was working. The following table sets out my findings from a frame by frame review. It should be noted that the ceiling cannot be seen in this footage and, once on the ladder, little of Mr Williams can be seen above his upper chest. His head cannot be seen and, for the most part, his arms are lifted up and also cannot be seen. The chemist shop was identified at trial as being on the left hand side of the footage.

Time	Description
8.34:48	Mr Williams arrived with orange cones which he placed on the floor inside the Myer store, near the left hand side of the automatic sliding doors.
8.35	Mr Williams brought a ladder inside, opening it up placing it in the left hand corner. The ladder, an A framed ladder, faced the chemist shop to the left of the Myer store. Two feet of the ladder on the right hand side sat on the door mat inside the store, in front of the automatic sliding doors. Mr Williams then placed three orange cones at the base of the ladder – 2 near the two ladder feet on the mat and a third further along, inside, also on the mat. The doors were still opening automatically with people walking into and out of the Myer store. The orange cones intruded into the door opening.
8.35:41 to 8.35:51	Mr Williams climbed to the second top rung of the ladder facing towards the chemist shop i.e. sideways and facing left when looking at the Wellington Street entrance, with his back to the orange cones, and lifted his arms and hands. The doors were still opening automatically with people walking into and out of the Myer store, walking past the orange cones.
8.35:52 to 8.36:00	With the ladder in the same position, Mr Williams turned and positioned himself side on to the ladder, but facing towards the automatic sliding doors. He lifted his right foot to the top rung of the ladder, keeping his left foot on the rung below.
8.36:01 to 8.36:21	Mr Williams turned, again with the ladder in the same position, this time to face sideways to the automatic doors, looking to the right when looking at the Wellington Street entrance. He moved his left foot to the top rung of the ladder. His heels were on the top rung of the ladder with the toes of his feet facing out from the ladder into the store.

8.36:22 to 8.36:33	Mr Williams lifted his left foot to the top of the ladder (ie the top of the A frame) and turned to the left to face the inside of the store, with his back to the Wellington Street entrance, while lifting his right leg up. However, his right leg was not on top of the ladder, but balancing.
8.36:34 to 8.36:38	Mr Williams moved his right leg down and placed his right foot on the top rung of the ladder, then moved his left foot down also to the top rung, turning to face the chemist shop as he did so.
8.36:39 to 8.36:40	Mr Williams moved both feet to the top of the ladder facing towards the chemist shop, with his back to the entranceway and the orange cones. The doors were still opening automatically with people walking into and out of the Myer store, walking past the orange cones.
8.36:41 to 8.36:57	Mr Williams, still on the ladder facing the chemist shop, moved his feet down from the top of the ladder to the top rung. He pulled down a white cable (or as Mr Williams described it, conduit).
8.36:58 to 8.37:10	Mr Williams moved both his feet back on to the top of the ladder, (the top of the A frame) and turned to face the Wellington Street entrance. He balanced on the top of the ladder on one foot (his right foot). His other foot (left foot) was out to the side. He was facing outwards, that is, towards the automatic doors. The conduit was seen to be moving down onto the floor.
8.37:11 to 8.37:14	Still facing outwards towards the automatic doors, Mr Williams moved his left foot to the top rung of the ladder. The conduit was seen to be moving out into the door entrance in the vicinity of the orange cones and then back in, against the ladder.
8.37:15 to 8.37:17	Mrs Barnes arrived, and stood just outside the automatic doors, talking on her mobile phone. Mr Williams was still in the same position on the ladder, facing outwards towards the automatic doors, with his right foot on the top of the ladder and his left foot on the top rung of the ladder. The conduit was seen to be moving and more conduit was visible.
8.37:18 to 8.37:24	Mr Williams moved his right foot from the top of the ladder down to the second top rung. He then put both feet on that rung and faced the chemist shop. The conduit was then fed up from the floor into the roof space (exactly where in the roof space cannot be seen). Mrs Barnes was still outside the doors on her mobile telephone.

8.37:25 to 8.37:26	Mr Williams climbed back to the top of the ladder, but only his right foot was on the top of the ladder; his left foot was in the air. He turned to his left to face outwards again, that is, towards the automatic doors. None of the white conduit was visible at this stage.
8.37:26	Mrs Barnes started to walk towards the doors and they opened automatically.
8.37:27	Mr Williams was in the same position, facing towards the automatic doors, with his right foot still on top of the ladder and left foot still off the ladder. Mrs Barnes took another step and the automatic doors opened wider.
8.37:28	Mr Williams was still on top of the ladder with his right foot on the top of the ladder and his left foot in the air alongside. Mrs Barnes arrived at the threshold of the door.
8.37:29	Mr Williams' left foot moved out sideways, as if he was balancing. Mrs Barnes crossed the threshold of the door. Two ceiling panels can be seen in mid‑air above her head. See exhibit 2 photo 13.
8.37:29	Mr Williams' left leg by this stage was almost at right angles to his right leg, with his body leaning towards the chemist shop, indicating he was off balance and struggling to regain balance. Mrs Barnes was struck by one of the panels – the outside (third) panel. The other panel fell on top of an orange cone at the base of the ladder. See also exhibit 2 photo 14.
8.37:30	Mr Williams' left leg was back closer to the right leg on top of the ladder. Mrs Barnes fell to the floor. See exhibit 2 photo 15.

After the accident Mr Williams climbed off the ladder, picked up the two ceiling panels which had fallen and placed them near the side wall. He then placed the orange cones outside the entrance across the automatic doors, while Mrs Barnes was being attended to by Myer staff.
Based on both Mr Williams' evidence and the CCTV footage, I find that:
1.The work Mr Williams was doing in the corner of the Wellington Street entrance of Myer on that day was unplanned. It was apparent from his evidence that he made a decision, having seen the security guards inside the store, to go in and pull some cables across from the chemist while he could.
2.Mr Williams did not inspect anything about the ceiling or the ceiling panels before he commenced work.
3.The ladder which Mr Williams was using was too short. Mr Williams was unable to explain why he did not get a bigger ladder, particularly as he said he thought there were other ladders on site. Mr Williams was asked about his positioning on the ladder in cross‑examination and admitted that standing on top of the ladder was dangerous.
4.Immediately before the ceiling panels fell, Mr Williams was on the top of the ladder, standing on one leg, while facing towards the automatic doors, with his back to the fixed ceiling.
Exactly what Mr Williams was doing when the panels fell cannot be seen. In his evidence in chief Mr Williams said that his memory was that he had the conduit sitting on the ceiling, about halfway across, maybe a little further. He identified that the ceiling he was referring to was the non‑removable side or fixed ceiling. However, from the CCTV footage and photographs it is apparent that while sliding or pushing conduit just before the panels fell he was facing the automatic doors. The fixed part of the ceiling was behind him. Even when this was put to him in cross‑examination he still insisted that he was pushing the conduit on the fixed side of the ceiling. I am unable to accept his claim that he was pushing conduit in the fixed ceiling space. It is contrary to all the other objective evidence.
Mr Williams said he had no idea what might have caused the movement in the panels which fell, saying 'No idea really to this day. Nothing that I could guarantee say, like, caused it'. Notwithstanding that the CCTV footage shows him to have been off balance, Mr Williams claimed that the only way he was supporting his body weight was 'just balance'. He denied touching or holding onto the fascia, claiming he had done this a million times and that he had good balance. I am unable to accept Mr Williams' evidence on this aspect, particularly given the CCTV footage.
The difficulties I have identified with Mr Williams' evidence cause me to conclude that I am unable to rely on his evidence about what he was doing just before the panels fell.
I find that Mr Williams was pushing the conduit through and across the panel recess, over the ceiling panels numbers two and three and not, as he maintained, over the fixed ceiling. I find that immediately before and at the time the ceiling panels fell he was working on top of the ladder, on one leg, and was off balance. Given the very short period of time between when Mr Williams was seen off balance and when the ceiling panels fell, I find, on the balance of probabilities, that the way in which Mr Williams was carrying out this work caused the ceiling panels to fall. It was the act of moving or pushing the conduit which caused the ceiling panels to move. From the fact that he was off balance I also draw the inference that he also either knocked the ceiling panel to the left and immediately adjacent to him (ceiling panel number 2) or pushed the fascia. These are inferences which are open to me to draw on the facts as I have found them: see Kuhl v Zurich Financial Services Australia Ltd [86] and [87].
I find that these ceiling panels fell as a direct consequence of what Mr Williams was doing at the time.

Was the ceiling 'defective'?

Even though the defendant conceded in its written opening submissions that the movement of the cables in the ceiling space may have factually contributed to the dislodgment of ceiling panels above Mrs Barnes, the defendant's case is that it was not at fault. This, it was submitted, was because the way the ceiling panels were fixed was a 'defect' in the design of the ceiling. This defect, coupled with damage that had occurred at some earlier time to the ceiling structure by the acts of unknown persons performing maintenance on the automatic doors, was why the ceiling panels had fallen.
To establish that the ceiling was 'defective', the defendant relied principally upon the report from Mr Machell.
Mr Machell's report of 5 July 2010 set out the matters on which he was asked to provide an opinion, including:
1.Whether the method by which the ceiling tiles were (originally) attached was adequate or inadequate and why;
2.Whether the attachment arrangement was unusual; and
3.Any other observations of the (original) attachment arrangement of the ceiling tiles.
In his report, Mr Machell referred to the ceiling panels as 'access hatches'. For ease of reference I will be referring to the access hatches as the ceiling panels. Mr Machell stated the following:
1.It is apparent that the fascia board to which the support angle is fixed is subject to removal in order to access the sliding glass door heads and in several locations, the support angle is neither continuous, straight nor even, suggestive of lack of maintenance that might be required as a result of removal and re‑installation or alternatively, poor attention to the design of the initial installation (page 5).
2.It is usual for ceiling panels to be constructed slightly smaller than the recess in which they rest, to ensure that the panel may be removed without catching on the side of the supporting framework. He expected that a ceiling panel would be not more than 5 mm smaller than the recess in which it rests, to allow removal without catching on fixings and supporting framework and to provide a maximum bearing area on the supporting frame (page 7).
3.It was 'apparent' that the recess in which the ceiling panels sit is larger than the ceiling panel in a number of locations and exceeds the 5 mm clearance (page 7). Later in his report (page 8) he put this in a different way by stating that 'it is apparent that the ceiling panels are smaller than the recess in which they sit, in some cases by more than 5 mm'.
4.He assumed that the original installation included all the supporting fascia about the glass doors, and to which the supporting angle was fixed, to be installed securely and straight so that the clearance of the ceiling panels did not result in them being able to fall out if they were moved from side to side as a result of clearance space, and then stated:
I would expect that the supporting angle would not be able to be moved if the fascia to which it was fixed was removed and properly replaced during the process of maintenance of the sliding glass doors so that the effectiveness and alignment of the angle was not compromised when it was re‑installed.
It was apparent from my inspection that the angle supporting the edge of the access hatch was secured to the fascia but that the fascia was not adequately re‑fixed to the support frame over the door head. It is likely that the process of repeated removal and replacement of the fascia to which the aluminium/steel angle is fixed has resulted in some minor damage to the angle and may have also resulted in the fixing points of the fascia to be damaged, so that re‑fixing is not able to be completed. This is supported by the installation as viewed and the misalignment of the aluminium/steel angle and unfixed supporting fascia.
6.If the clearance of the ceiling panel was greater than the width of the supporting flange of the P50 mould (10 mm) it is likely that the ceiling panels would be prone to become dislodged or rely on the P50 on the short side of the panel i.e. the ceiling panel would only be supported on one long and one short side, if moved tightly to the opposite side of the recess in which it sits and may become unstable (page 8).
7.'It is clear from the installation' as viewed that the ceiling panels 'may have more than 5 mm clearance and were able to move from side to side before they were screw‑fixed' (page 8).
It was established during Mr Machell's examination and cross‑examination at trial that he based these statements and conclusions on observations he made over two years after the accident, looking at a different area from that in which Mr Williams had been working. Mr Machell's observations about the ceiling panels and what was supporting them was made from the ground and from the photographs he took. Mr Machell did not actually inspect or measure the ceiling panels but only estimated their dimensions and he admitted that this was from a distance of 1.2 m. Mr Machell did not inspect or measure the recess in which the ceiling panels sat. In fact he specifically stated in his report (page 7) that he had not been able to confirm if all ceiling panels were the same width or if the recess was a uniform width over the length of the glass doors.

For his conclusion that the recess in which the ceiling panel sat was larger than the 5 mm clearance, he relied on photographs he had taken which showed that the angles (that is, the supporting angle) where the ceiling pieces joined were not in an even line ‑ as Mr Machell described it, a 'disparate line of trim fascia'. The photographs which he took were not, however, of the area from which the ceiling panels fell at the time of the accident, which were the second and third panels, but were taken of the location of the fourth and fifth ceiling panels. There was no indication from Mr Machell as to how disparate the line of the trim fascia was. From my observations of the photographs, there appeared to be only a very small change in the line of the supporting angle at one point where there was a join. Mr Machell did not actually get up into the ceiling to measure or determine whether one part of the fascia was moving out or moving in and, of course, as he acknowledged in his report, he took no measurements to see whether all ceiling panels were the same width or if the recess was a uniform width over the length of the glass doors. He did not see or test the fascia beside the first, second or third panels.
In relation to the statement in his report 'that the fascia was not adequately re‑fixed to the support frame over the door head', Mr Machell admitted at trial that he did not test the stability of the fascia at all, let alone in the area where Mr Williams was working at the relevant time. He could only say that the angles and supports to which they were attached 'appeared' to be loose, based on his ground level observations and photographs. Mr Machell agreed that he could not see the way in which the fascia was fixed from below behind the first, second, third and fourth ceiling panels. He agreed in cross‑examination that if he had gone up a ladder that would have provided him with a better view and would have enabled him to look at the piece of timber that the L‑shaped angle (supporting angle) was fixed to and actually apply pressure to it to see if it moved. That is one thing he did not do. Nor did he measure the width of the L‑shaped angle.
Mr Machell also based his opinion in part on the statement made by Mr Williams dated 19 January 2010. Many aspects of this statement were shown, through cross‑examination of Mr Williams, to be inaccurate and unreliable. For example, in par 35 of the statement Mr Williams said he had ascertained that the tile that fell out was about 10 mm narrower than the two tiles (panels) that were beside it. That statement assumed that three panels had fallen out when, in fact only two had fallen. At trial it was apparent that Mr Williams did not himself measure the panels and his estimate of their size was very different from the evidence of Mr Machell and Mr Scaffidi. Mr Williams conceded that what was in his statement was, as he described it, his recollection of what happened two years after the fact. He also said in his statement that the cause of the panel falling was that he touched the fascia; at trial he denied having touched the fascia and the explanation for what was in his statement was that this was the only thing he could think of as to why the panels fell.
Finally, Mr Machell did not review the CCTV footage – it was not mentioned as part of the materials to which he had regard when writing his report.
In light of the matters I have set out in [56] to [60] I find that Mr Machell's opinion is based on incomplete or unproven facts and accordingly I can place little weight on it: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [69] to [85]; PownallvConlanManagement Pty Ltd (1995) 12 WAR 370 389 ‑ 390; Pollock v Wellington (1996) 15 WAR 1 , 3 ‑ 4.
I am not persuaded that there was any 'defect' in the ceiling as submitted by the defendant.
On the balance of probabilities I am satisfied that the ceiling panels fell as a result of the manner in which Mr Williams was carrying out this work, and his failure to take reasonable care when doing so.

Was the risk of harm from the ceiling panels falling foreseeable?

The defendant has submitted that the accident which occurred was so 'far fetched' and 'fanciful' as not to be foreseeable.
This submission is based on what the defendant's employee, Mr Williams, actually knew or said he did not know. Mr Williams was very young at the time, only 20 years old, and had not yet completed his apprenticeship (which, on his evidence, he completed on 30 October 2008).
The issue of foreseeability may be established by the defendant's constructive knowledge of the risk of harm by reference to other facts, matters and circumstances which the defendant ought to have known, including the common knowledge and experience of others in the similar position of the defendant.
There is, in my view, an inherent risk in a workman carrying out any overhead work. The danger of injury to a person who might be hit from anything falling from the area of that overhead work is obvious.
Mr Williams acknowledged in cross‑examination that when working up a ladder in a ceiling there was a danger to other people from falling objects.
On this issue Dr Nedved, an occupational health and safety expert, also gave evidence. Dr Nedved has a masters degree in both science and engineering and a doctorate in safety engineering, as well as experience in accident prevention and investigation. He reviewed the CCTV footage and wrote three reports which were admitted into evidence and he also gave evidence at trial. His evidence, which I accept, was that it is standard industry practice at any time when people are working overhead that the entire area from which there could be a potential fall is roped off and clearly sign posted. In relation to this case, Dr Nedved stated that the entire area under which the activity in the ceiling took place needed to be roped off and sign posted. He clarified that this included not only the area under which the electrician had his ladder, but the entire area, which would cover probably 2 m or more. Based on Dr Nedved's evidence, I find that the potential for risks of falling objects when working overhead lies not just in the immediate area underneath where a workman is working, but also the surrounding area.
In cross‑examination Dr Nedved agreed that when the automatic doors opened and closed there was movement in the fascia so that there was movement in the frame holding the ceiling panels. Dr Nedved said that was one of the contributory factors, however, that risk ought to have been ascertainable had the area been inspected before carrying out the work.
Dr Nedved's evidence was that the electrician must examine the area over which he plans to pull the cables before he carries out the work. Whether the cables being worked with by the electrician on the day were pulled or pushed it did not matter. Any movement over ceiling panels would result in force or friction and if the ceiling panels are not stable then they might fall. Ceiling panels are designed so they can be lifted off relatively easily. With a degree of movement it is foreseeable that at any time when cables were pulled or similar activity took place, there is a potential for those ceiling panels over which the cables were pulled or in the vicinity of which the cables were pulled to fall down.
Dr Nedved agreed that there had been a suggestion from Mr Machell that the steel angle holding the ceiling panels in place was narrower than would be optimum. When it was put that this was something that the electrician would not see Dr Nedved said (ts 92):
But it is not unique. The electrician should have been aware of that potential. It is pretty wide spread that over the time when hatches are used, panels are removed and so on, that all hatches would not sit in a stable manner as immediately after they had been constructed.
… [It is] … the industry experience with the exception of completely new structures that over the years wear and tear results from repeating movements of hatches, removal and re‑instalment of ceiling panels, so it is very much reasonable to expect that after some years the ceiling structure would not be stable as when it was new.
Mr Machell also expressed an opinion in his report dated 5 July 2010 as to whether it was foreseeable that if Mr Williams were to remove the ceiling panel that he did, this would cause other ceiling panels to dislodge. In Mr Machell's opinion it was entirely unforeseeable that the removal of a ceiling panel would result in the dislodgement of other ceiling panels several metres away. Apart from the fact that this deals with the ultimate issue that I am to decide, there are a number of difficulties with this conclusion by Mr Machell, some of which I have already canvassed in [56] to [63]. The other difficulty is that the removal of the first ceiling panel alone did not cause the two adjacent ceiling panels to fall. As shown by the CCTV footage, there was some period of time between the removal of the first ceiling panel and when the other two panels fell, during which time Mr Williams was working, pulling and pushing conduit in the recess, something which Mr Machell appears not to have considered when he came to the conclusion which he did. As I have already found, it was the work which Mr Williams was carrying out in the panel recess which resulted in the dislodgement of the two ceiling panels which fell.
In light of the evidence as a whole, including the evidence from Dr Nedved, I find that the risk of movement and the dislodgment of these ceiling panels as a result of the work undertaken by the defendant was real, not far fetched or fanciful, and therefore foreseeable. It was a risk about which the defendant ought have known based on the common knowledge of the dangers of injury to a person who might be hit by something falling from the area of overhead work, the industry experience that wear and tear will result from repeated movement, removal and re‑instalment of ceiling panels, and the obviousness or the likelihood of the event happening when using common sense.

Was the risk of harm from the ceiling panels falling not insignificant?

Mr Williams gave evidence that he had observed a building manager from Forest Chase measure the panels which had fallen. According to Mr Williams the panels were different sizes. He gave no evidence as to the sizes as measured, however. In fact, his estimate of the size of the panels was 600 mm by 300 mm – a panel size less than estimated by the defendant's expert Mr Machell and the security guard Mr Scaffidi. I find that Mr Williams' evidence on this aspect is unreliable.
Based on the estimates given by Mr Machell and also the security guard Mr Scaffidi, I find that each ceiling panel was about 1.2 m long and weighed 8 kg or 9 kg. I find that the risk of harm from a falling ceiling panel to a person walking nearby was not an insignificant risk. The potential for injury was considerable.

Breach of Duty: What was a reasonable response to the risk?

Before considering what precautions a reasonable person in the defendant's position would have taken, there is a further matter arising from the evidence which I need to address.
Mr Williams gave evidence that this was the only time in his experience that a ceiling panel had fallen while he had been working in a ceiling space with ceiling panels. Dr Nedved also gave evidence that he had never encountered a situation where a ceiling panel had fallen out of its frame when an electrician was doing a task similar to that undertaken by Mr Williams. While the fact that there has been no previous incident is a relevant factor, it is only one factor and does not determine the issue of breach: Francis v Lewis [2003] NSWCA 152 [57]; Brambles Australia Ltd t/as Brambles Industrial Services v Sandy [2006] NSWCA 357 [53] ‑ [55].
There were a number of suggested precautions, both pleaded and in submissions, which it was alleged the defendant ought to have taken but failed to take. They fall within the following categories:
1.Undergoing an induction programme in relation to the premises.
2.An inspection of the ceiling area before commencing work.
3.Actually removing the ceiling panels, before commencing the work.
4. The giving of a better warning (more than the placement of the orange cones)
5.Closing off the vicinity around where the defendant was carrying out the work.

Induction

Mr Williams was cross‑examined about whether he would do a safety induction for each particular site where he worked. He said he would do a safety induction not all of the time, but most of the time. He agreed that one of the reasons for a safety induction would be to learn if there was anything risky about the particular premises.
Certainly if the work had been properly planned and Myer notified in advance of the work being carried out by Mr Williams the risk of harm could have been reduced by the taking of appropriate precautions. I consider that a reasonable person in the defendant's position would not have carried out this work without adequate planning and prior notification to Myer. However, I am not satisfied that an induction, in the sense as generally understood and described by Mr Williams, was something that this defendant was required to undertake before commencing this work.

Inspection

Mr Williams' evidence was that he had a 'quick glance' at the ceiling space on this occasion, but there was nothing to indicate to him that there was anything about this ceiling that he had not seen before. His evidence, including cross‑examination, was to the effect that the ceiling looked 'dodgy' on his inspection after the accident. He agreed that this was a different setup to what he had seen before, once he looked at it afterwards 'with the tiles out' and having a 'good look'. The reason he gave for not having noticed this before was that all the tiles (panels) were in and it seemed fine from when he had a quick look.
In terms of inspection Dr Nedved said that the electrician must examine the area over which he plans to pull the cables before he carries out the work. As Dr Nedved explained, from industry experience, with the exception of completely new structures, it was reasonable to expect that after some years of wear and tear from the removal and replacement of ceiling panels, the ceiling structure would not be as stable as when it was new. Dr Nedved went further to say:
[I]f I was in the electrician's shoes on the basis of that experience that there is a potential for some hatches not sitting in the stable manner, I would have taken all precautions to make sure that nobody would be injured, …
Mr Williams, as I have found, failed to inspect the ceiling before commencing work. In fact, as I have already found, this work was unplanned.
In my view, had this work been properly planned and Mr Williams had carried out more than a 'quick glance' he should have been alerted to the fact that this was not, as Mr Machell described it, a proprietary ceiling panel system, realised that there was a potential for problems and taken precautions accordingly. I find that a reasonable person in the defendant's position would have taken the precaution of an inspection of the structure of the ceiling, the ceiling panels and the panel recess, before commencing work, which the defendant failed to do.

Removing the ceiling panels

The work which Mr Williams was carrying out was to push the conduit, and then feed cable through that conduit, right across the Myer entrance, from the left hand side where Mr Williams first placed his ladder, through to the other (right hand) side.
The removal of the ceiling panels before carrying out this work, was a simple precaution which in my view a reasonable person in the defendant's position would have taken. It was an easy step to take and one which would not have involved either undue delay to the start of the work, or expense to the defendant.

Warning

At common law if the plaintiff alleges a failure to warn, that plaintiff must adduce some evidence of both what a warning sign would say or alternatively what other form the warning should have taken and what the plaintiff would have done if a warning had been given: Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, [2003] HCA 61 [16], [24], [54] and [55]; Commissioner of Main Roads v Jones (2005) 79 ALJR 1104 [18], [22] ‑ [25], [79] and [83].
There was in this case produced, and tendered as an exhibit, a specific warning sign which was an A frame free standing sign with an oval shape coloured in red with the word 'Danger', underneath which was an arrow pointing upwards and the words 'Workers Above'. Dr Nedved gave evidence that such a sign is a standard industry sign, readily available and commonly used.
On the second matter of what Mrs Barnes would have done if such a warning had been given, pursuant to s 5C(3) of the Civil Liability Act evidence of a plaintiff as to what he or should would have done if the defendant had not been at fault is inadmissible.
The circumstances here were that the only set of doors open at the time in order to let Myer staff come and go from the building were the automatic doors next to where the work was being carried out. Mrs Barnes would still have used those doors, since they were the only access into the store. Dr Nedved's evidence was that safe practice required not only a safety sign but roping off the area. In these circumstances I am not satisfied on the balance of probabilities that Mrs Barnes, or, indeed anyone else entering the store that morning, would have done anything differently had the warning sign produced at trial been placed outside the automatic doors.

Closing off the area

Mr Williams did in fact place orange cones around the ladder, but this only marked out a small area beneath the area in which he was working.
Dr Nedved's evidence, as I have set out in [69], was that a greater area should have been marked out. This was because, as Dr Nedved explained, there is always potential that something, including a ceiling panel, might rebound from the floor, jump over and still hit somebody. Mr Williams had identified the immediate area around his ladder with the placement of the orange cones, but he did not identify and rope off the entire area where people would be at risk because of the potential for something, including a ceiling panel, to fall.
The feet of the ladder and the orange cones which Mr Williams placed next to the ladder protruded into the doorway where people were walking. This, on any view of the matter, was not a safe way to carry out work.
Further, if a greater area than that indicated by the orange cones placed by Mr Williams had been marked out, then the orange cones or whatever was used to restrict access to that area would have encroached further, across the whole of the doorway.
Both of these matters at [94] and [95] raise the issue of closing off that particular set of automatic doors.
In cross‑examination Mr Williams was asked about whether the automatic doors could have been closed and a different door opened by security guards:
There were three lots of sliding doors, weren't there---Three lots and then - so there would be two a lot, so first and second level.
Well, on this particular level, you've been shown a photograph of the outside of the building, there are three area - - ----Yes.
- - - of sliding doors---Yes.
And you were working, as you looking at the front of the building, you were working outside the - inside the left hand side one---As you're looking in, yes.
And so it wouldn't have been difficult for people to go in through the right hand side one while you were working on the left, would it, if they had simply opened a different door---I guess so.
And if you'd told them you were coming that could have been arranged, couldn't it---The security guards could have done it.
Did you ask them to---No.
Why not---Just didn't think, I guess.

There was no medical evidence in support of Mrs Barnes' claim for continuing physiotherapy or massage. When Dr Harper was asked about her treatment he recommended exercise, including swimming, and the possibility of psychological counselling because of her ongoing stress.
I therefore allow the claimed amount for special damages less physical therapy (massage and physiotherapy) expenses incurred after 27 October 2009. There are three items for physiotherapy paid for by the workers' compensation insurer after this date, totalling $137.97. From the further Schedule (exhibit 27) there are further amounts claimed for physiotherapy from Avery Jones Walters between February and May 2011 totalling $452.80 and massage from Dr Michael Ponchard between April and December 2010 totalling $588. There is one further item on this Schedule which counsel for Mrs Barnes agreed should also be deducted, relating to a Clinipath account from 10 February 2010 for $65.40. From the total of the special damages claimed of $18,344.62, I have deducted $1,244.17. The total sum I allow for special damages is therefore $17,100.45.
There is no claim for interest on the special damages claim, so I make no allowance for interest.

Future medical expenses

In the Further Amended Particulars of Damage the claim for future medical expenses is $10,000 for 'further physiotherapy, review by her treating general practitioner, referral to a psychologist, an MRI scan and the continued consumption of analgesic and anti‑inflammatory medication'.
For the reasons I have discussed when considering special damages, there should be no allowance for physiotherapy. Given the medical evidence that upon resolution of this claim Mrs Barnes is likely to improve I do not consider she will need referral to a psychologist, even though Dr Harper has suggested it. There is no evidence that she will need a future MRI scan. I will allow a modest allowance for attendances by Mrs Barnes on her general practitioner and for medication.
I allow $2,500 for future treatment costs and medical expenses.

Gratuitous services

Section 12 of the Civil Liability Act deals with the awarding of damages for 'gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance' that have been or are to be provided to a plaintiff by a member of the same household or family. There is a threshold amount of $6,000 (Amount B, as set out in s 13) which must be reached before any award of damages can be made under this head.
Mrs Barnes gave evidence that her husband drove her everywhere to begin with. He helped with shopping and still does so where there is a heavy load. Her estimation of the gratuitous services her husband provided was 15 hours a week for the first 4 or 5 weeks, then reduced to 10 hours and then 5 hours and now 2 hours a week. The 2 hours has been over the last 2 years.
Mr Barnes gave evidence and I found him to be a credible and reliable witness. He admitted that before the accident his wife probably did nearly all of the work around the house. Since the accident he has had to take over some household chores including vacuuming and hanging out big sheets. He described his wife as very independent and that she coped with showering on her own and dressing herself. However, immediately after the accident he assisted her around the house with anything and he also drove her to a lot of medical appointments. As well as taking her to doctors and specialists appointments he would drive her to the shops and lift all the shopping, something that his wife generally did before the accident. He now always helps with the shopping.
I find that Mrs Barnes required assistance from her husband in the first month following the accident, until her return to work. Since then the assistance provided by her husband has reduced, but he still provides assistance of a domestic nature by way of undertaking heavy household chores which at present Mrs Barnes is unable to manage.
The claim for gratuitous services made by Mrs Barnes is based on her estimate of hours, at a rate of $20 per hour agreed to by the defendant. Although the exact periods which she needed assistance for the average hours of 10 and 5 hours per week was not specified in her evidence, in the Further Amended Particulars of Damage these are calculated at 15 hours per week from 25 March 2008 to 26 April 2008 (4.8 weeks) $1,440, 10 hours per week from 27 April to 26 May 2008 (4.2 weeks) $840, 5 hours per week from 1 August 2008 to 10 September 2009 (6 weeks, excluding the period when she was on holiday) $600 and thereafter at 2 hours per week, $3,480. These amounts for gratuitous services are also calculated on the basis that Mr Barnes has assisted his wife with the washing and grooming of her hair, which on the evidence he has not done. (The reports from Dr Harper also recorded that Mrs Barnes reported that she was independent with dressing and showering). The total claim for past gratuitous services is $6,360 plus interest of $601.75. There is a claim for future gratuitous services of $5,000.
While I am satisfied that some appropriate allowance should be made, I am not satisfied that the assistance provided by her husband has been as much as two hours per week for the whole of the period claimed from October 2009. Other than being reviewed for the purpose of this trial, she has not required specialist treatment. There were few medical appointments which her husband would have needed to drive her to and from. No allowance should be made for her husband driving her to other appointments, such as massage or physiotherapy, after October 2009 for the same reasons I have disallowed the costs of this physical therapy from Mrs Barnes' claim for special damages. Further, some deduction needs to be made for the fact that Mrs Barnes has always been able (and determined) to groom herself and that most of the assistance provided by Mr Barnes relates to shopping and household activities which are done for his benefit, as well as Mrs Barnes' benefit. Taking into account all of these matters I consider that after October 2009 the allowance for gratuitous services should be one hour per week (half of what is claimed for this period). For future gratuitous services, the assistance which Mrs Barnes will need will diminish as she improves, and on all the medical evidence she is likely to improve.
Doing the best I can on the information before me, I therefore allow a global amount, inclusive of interest, of $5,000 for past gratuitous services and $3,000 for future gratuitous services.

General damages (non-pecuniary loss)

Mrs Barnes has suffered pain, suffering and loss of enjoyment of life as a result of her injuries. As described by Dr Harper the initial injury to her cervical spine was mild to moderate in severity. For the first month or so she suffered not only from her cervical spine injury but also the complications of an ear infection, following the washing of her head wound in hospital, for which she required specialist treatment. She has been left with a scar on her head from the laceration she received, although the scar is not visible. She still suffers from relatively constant pain in her neck and shoulders, sometimes associated with headaches. The pain she has suffered in her neck and back has not been so debilitating as to prevent her from living her every day life. She still maintains a good quality of life, even though she has been unable to undertake all of the activities she enjoyed before the accident and is frustrated by some of the limitations she has in her ability to undertake household chores. The weight of the medical evidence is that she is likely to improve, particularly after the resolution of this matter.
In the circumstances, I consider an appropriate award for general damages for Mrs Barnes' injuries to be $32,500.
Section 9(2) of the Civil Liability Act applies to this award of general damages and restricts the amount which I can award. Section 9(2) provides that if the amount of non‑pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A.
Amount A is presently $17,500 and Amount C is $53,000. The $32,500 which I consider the appropriate award for general damages is more than Amount A but less than Amount C. The excess of the amount which I have assessed over and above Amount A is $15,000 ($32,500 less $17,500).
Accordingly, Mrs Barnes' general damages as allowed under s 9(2) of the Civil Liability Act will be $15,000.

Summary of damages

I assess Mrs Barnes' damages as follows:
General damages  $15,000.00
Past loss of earnings (including interest)  $23,966.44
Past loss of superannuation (including interest)  $2,155.17
Fox v Wood damages  $1,862.53
Future loss of earning capacity (including superannuation) $15,000.00
Special damages  $17,100.45
Future Medical Expenses  $ 2,500.00
Gratuitous services (past and future)  $8,000.00
TOTAL:     $85,584.59
There will be judgment for Mrs Barnes in the sum of $85,584.59. I will hear from the parties as to the costs orders which should be made.