Bennett v Newcastle City Council (No. 2)

[2023] NSWDC 665

District Court

New South Wales

Medium Neutral Citation:	Bennett v Newcastle City Council (No. 2) [2023] NSWDC 665
Hearing dates:	26 – 27 April, 2 May 2023
Date of orders:	2 May 2023
Decision date:	02 May 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Judgment for the Plaintiff for $44,034.05.
Catchwords:	TORTS – NEGLIGENCE – Fall in the auditorium of a playhouse during a band performance when house lights were turned off – Whether stairs adequately illuminated.
Legislation Cited:	Civil Liability Act 2002, ss 5C(c) & 15(3).
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Linda Karen Bennett Defendant – Newcastle City Council
Representation:	Counsel: Plaintiff – Mr Anderson Defendant – Ms Epstein Solicitors: Plaintiff – Law Partners Personal Injury Lawyers Defendant – Moray & Agnew
File Number(s):	2022/00088033
Publication restriction:	Nil.

Judgment

Background

1. HIS HONOUR: The Plaintiff, Ms Linda Karen Bennett, of Mayfield, brings an action for damages for personal injury against the Council of the City of Newcastle for an injury which she received in 9 April 2021 when she was a patron of the Civic Playhouse in Hunter Street, Newcastle. On the evening of 9 April 2021, the Plaintiff attended the Civic Playhouse in order to listen to a band, known as the “Hot Potato Band”, perform over a period of some 75 minutes.

History of the Civic Playhouse

2. The Civic Playhouse is in a heritage building erected in 1929 fronting onto Hunter Street, Newcastle, behind the Newcastle City Council Chambers, which face in the opposite direction, that is, facing south. Immediately next to this courthouse in Hunter Street, Newcastle, is the Clarendon Hotel. Beside that there are, I believe, three commercial buildings which are probably heritage listed. There is then the Civic Plaza. Then continuing along Hunter Street is the 1929 heritage building which incorporates not only the Civic Playhouse but the Civic Theatre. Both the Civic Theatre and the Civic Playhouse are under the care, control, and management, of the Defendant, the Newcastle City Council.

3. A short history of the Civic Playhouse was given in evidence by Ms Delia O'Hara, whose formal position is the Executive Manager of Civic Services of the Newcastle City Council. Originally, the Civic Playhouse was a ballroom in the original 1929 building. In the 1970s it was turned into a small performance space. It was let out to the Hunter Valley Theatre Company, which was a quite well-known theatre company in the 1970s and 1980s. Towards the end of that period, the Playhouse fell into disrepair and the Hunter Valley Theatre Company ceased to operate.

4. The Playhouse was then renovated, and plans before me indicate that the renovation commenced toward the end of 2003. As I understand it, the Playhouse reopened under the management of the Defendant at the end of 2004. It has been operated commercially by the Defendant since that time. As I understand it, it mainly offers live entertainment of one form or another.

Seating

5. A seating plan bearing date 12 July 2004 is Exhibit D. That shows that the theatre is a section, in essence, of an amphitheatre with seats arranged in about a quarter of a circle looking towards a stage. As ought be evident from the description of an amphitheatre, the seating is tiered from the seats closest to the stage to those at the top of the amphitheatre.

6. Originally, there were six such levels of seating numbered rows A to F. However, the seats in row A were at the same level as the stage, that is on the same level as the stage and have been removed and are no longer in use. The remaining rows are still numbered B, C, D, E, and F. Behind row F on either wing of the seating is a row G, containing five seats. If one is on the stage looking out on the extreme left wing, there is an additional row of seating numbered row H containing five seats immediately below a platform which is labelled on the plan, Exhibit D, as "Control", but was generally referred to in evidence as either the bio box, the tech desk, or the mixing box. I shall hereafter endeavour to refer to it as the bio box.

7. On the right-hand side as one stands on the stage, row G on the right hand side is on a platform one step above row F. On the left-hand side, row G is on a platform two steps above the area immediately behind the major section of row F. The inference is that the platform was raised to that level so that the five seats in row H could obtain a view. The five seats in row H are slightly more towards the centre of the seating than the seats in row G on the left hand side, which are towards the left hand wall of the structure. The bio box is reached by six stairs from the aisle behind the centre of row F. That aisle is marked in Exhibit D as "Crossover". I shall refer to it as the rear aisle.

The Stairway

8. To enter the auditorium of the Playhouse, one enters from a doorway behind row G on the right hand side of auditorium if one is standing on the stage. That doorway leads into the rear aisle. When one enters the auditorium from that doorway, if one turns 90 degrees to the left, there is a row of steps descending to the stage area, that is that go down to where row A originally was. If one, after going through the entry door, continues essentially in a straight line, one traverses the rear aisle. To reach the stairway on the left-hand side down through the tiered seating, one must ascend the two stairs to the platform containing rows G and H on the left-hand side and then start descending the stairs down through the aisles to get down to the stage.

The Claim

9. The Plaintiff's cause of action is in the tort of negligence. On the evening of 9 April 2021, she was in a party of five. The other members of her party were her then close friend, and I infer her partner at the time, Mr John Vesenjak, Mr Chris Ramage, and his neighbour/girlfriend Ms Gail Holdforth, and Mr Michael Morris. On Friday 9 April 2021, the Plaintiff had finished her normal work at 2.30pm. She then had a “quick nanny nap”. She then went out to Mr John Vesenjak’s residence at Glendale. Mr Vesenjak was caring for his 93-year-old mother at that time. The Plaintiff and Mr Vesenjak, and Mr Vesenjak’s mother, took the evening meal at Mr Vesenjak’s residence at Glendale. His elderly mother then retired to bed at 7.15pm. The Plaintiff and Mr Vesenjak then travelled into the city to meet up with the rest of the party at the Clarendon Hotel. The travel time between Glendale and the city was, according to the Plaintiff, about 20 to 25 minutes.

10. The party met together at the Clarendon Hotel. Each member of the party had one alcoholic beverage at the hotel and they then walked the short distance westward along Hunter Street to reach the Civic Playhouse. The access to the Civic Playhouse has not been well described orally in evidence. If I be reading the architectural plans correctly, one enters through a doorway and then ascends a set of stairs to what is called the “upper foyer”, which acts as a foyer for the Civic Playhouse and where there is a bar for the serving of refreshments, and also, it would appear that, there are toilet facilities. One then ascends a further staircase to reach the entrance doors to the auditorium of the Playhouse.

11. When the Plaintiff was in the upper foyer, she perceived the need to visit the toilet. However, there was a queue to enter the ladies’ toilet at that time. She referred to it as being “quite a line up”. She did not stay in that line but went with the rest of her party up into the auditorium. The party, of which she was a member, had seats in row F. Based on the evidence, they were the seats numbered 30, 31, 32, 33, and 34, on Exhibit D. Seat 34 adjoins the left aisle between the rows leading down to the stage and seat 34 is immediately next to the aisle but on the right hand side of that aisle. Based on the evidence of Mr Morris, he was in seat 34 and Mr Ramage was in seat 33. Assuming usual social mores, one would expect Ms Holdforth to have been in seat 32, Mr Vesenjak was then in seat 31, and the Plaintiff herself was in seat 30.

12. It is common ground that when the Plaintiff stood up in order to visit the toilet after the performance had commenced she walked past Mr Vesenjak, Mr Ramage, and Mr Morris and, assuming Ms Holdforth sat next to Mr Ramage, she would also have passed in front of her. Furthermore, the configuration of seating to which I have referred is consistent with the seat marked by the Plaintiff on Exhibit A, photograph numbered 6. That photograph shows clearly the configuration that I have sought to describe, that is, the rear of row F, including the seats upon which the plaintiff and her party sat, the aisle with two steps down from the platform holding rows G and H, and the two steps down from that platform to the rear aisle of the auditorium. One can also see in that photograph the stairs up to the bio box, which commence near the two steps which lead up to and down from the raised platform containing rows G and H.

13. The Plaintiff and her party took their seats about five minutes before the show commenced. According to the questioning of the Plaintiff by Ms Epstein for the Defendant, the show probably started at 8.45pm. After about a quarter of an hour, the Plaintiff felt a need to visit the toilet. This was the colourful evidence given in cross examination:

“Q. You were busting?

A. Yeah. The older you get, the weaker your bladder.”

14. In later questioning, the Plaintiff agreed that she was “busting” but denied that she was walking at any greater pace than she would normally walk. In order to visit the toilet, the Plaintiff had to stand up and walk in front of the other members of her party, up the two steps onto the platform and then across the platform. She said that she was guided by light coming through the doors into the auditorium, which were partly ajar, and by the exit sign immediately above that set of doors. She did not see the two steps down and stepped out into a void. She fell. She landed on her knees and it is quite clear that, in doing that, she injured her right Achilles tendon.

15. The question is, why did the Plaintiff not see the stairs between the platform and the rear aisle, a set of two steps which she had climbed some 20 minutes earlier when she entered the auditorium in order to gain the platform, and then descend the two steps to row F and take her place in the seat to which I have referred?

16. On each side of both the two steps down from the platform at the commencement of the long aisle down to the stage, and on either side of the two steps leading from the platform to the rear aisle, there are banister railings. The Plaintiff did not remember whether she used any banister railings at the time. The Plaintiff maintained in her evidence that the guiding light was the entry doors to the auditorium that were ajar, with the exit light above them. She walked across a platform and she said that it was dark. This is her evidence in chief:

“Q. In your own words, can you inform the Court what happened next?

A. As I walked along the platform, I was heading towards the exit door, which was slightly ajar, and there was a slither of light through there and the exit sign. As I continued, I hadn’t seen the steps, and just followed, thinking it was just a platform, and just kept on walking.

Q. When you raised your arm like you just did..

A. A, a level surface, I haven’t seen the steps.

Q. What was the first point of contact with the ground?

A. Knees and, and, and just instantly hit the deck.

HIS HONOUR

Q. So I assume you fell forward, did you?

A. Yes, sir.

ANDERSON

Q. Did you feel immediate pain and discomfort anywhere in your body?

A. I tried to stand up and I couldn’t stand up.

Q. Did anyone come to your assistance?

A. A lady must have, had seen me fall and she’s come from, she was sitting the other side of the steps in front of the..mixing station. She had seen me fall, came over to me, saw if I was all right and then she went and found the usher.

Q. At some point, did the usher come over to you?

A. She did come over, yes.

Q. When you say ‘she’ it was a female usher; was she carrying anything with her at the time?

A. She did have a torch with her.

Q. Was the torch on or off?

A. The torch was on.

Q. At any point whilst you were there, did you happen to look back to see what had actually happened in terms of your fall?

A. I did.

Q. What did you observe?

A. It was two steps that I hadn’t seen at all.

Q. Was there anything illuminating the steps at that time?

A. No.

HIS HONOUR

Q. If they weren’t illuminated, how could you see them?

A. Not illuminated, they were just like a shadow. You...if it’s dark, you can still see, like..

Q. You could discern, you could still discern..

A. When I was on the floor level.

Q. You could discern that there were steps there?

A. When I was sitting on the floor, yes.”

17. There is inconsistency between what the Plaintiff said about the ministrations of the staff of the Playhouse and what those members of staff say. However, very little turns upon that. There was present in the theatre, standing in the auditorium at the entry doors, or I should say exit doors, Ms Stacey Burbridge, a casual employee of the Defendant who was working as an usher on this evening. There were two other members of council staff working at the Playhouse on that evening. There was a second usher, Nicole Guyder, and a lady whose title was front of house manager, Ms Annette Faulkner.

18. The attention of Ms Burbridge was drawn to the Plaintiff’s fall when she heard a noise coming from the direction where the Plaintiff had fell, which was unusual. She went towards the noise and she came across the Plaintiff on the floor. She did not recall any other member of the public being there at that time but conceded that there may have been a patron close by to where the Plaintiff fell who came to her assistance first. Ms Burbridge found a stool upon which the Plaintiff sat, but the stool was high and the Plaintiff found it uncomfortable.

19. One of the first things that Ms Burbridge did was to send for the front of house manager, Ms Faulkner. She conveyed the news of the Plaintiff’s fall by radio to Ms Faulkner. The assumption is that Ms Faulkner was down at the upper foyer where the bar was. Ms Guyder was, at no relevant time, present in the auditorium. She was on other duties, perhaps on a rest, or perhaps assisting in the bar. Earlier, she had taken tickets and also attended to duties relevant to the COVID-19 pandemic at that time.

20. Ms Faulkner did attend upon the Plaintiff in the auditorium. She arranged for a chair to be brought up from the bar, and eventually arranged for a wheelchair to be brought up into which the Plaintiff was placed, and in that fashion, she was taken out of the auditorium. There was an adjacent lift in which the Plaintiff could be taken to the ground level and out onto Hunter Street, where the Plaintiff was met by an ambulance.

21. Again, the issue is why did the Plaintiff fall? As I shall outline when I turn to consider damages, which I must in any event, that is, whether the Plaintiff be successful or unsuccessful in her action, the Plaintiff has had long term problems with her feet. However, there is no suggestion that the Plaintiff’s fall was caused by any problem that she had either in the left or right foot. She simply mis-stepped. She did not see that there was a step down and that is what caused her to fall.

22. The Defendant’s case is based upon a series of photographs, which became Exhibit 5. Those photographs were taken on 30 May 2022 prior to any work being done at the relevant place in the Playhouse. Photographs numbered at the top 5 and 6, or at the bottom 6 and 7, of Exhibit 5 show the area where the Plaintiff fell and are very similar to photo 6 in Exhibit A. Photo numbered 7 at the top or 8 at the bottom in Exhibit 5 is a closeup view of the steps. Photo 8 at the top or 9 at the bottom is a view of the steps leading from the platform down onto the rear aisle, as is photo numbered 9 at the top and 10 at the bottom.

23. Photo numbered 10 at the top, 11 at the bottom, is a view taken looking down the aisle leading to the stage that I have identified earlier as the left-hand aisle, the one closest to the seats occupied by the Plaintiff and her party. That photograph shows a glowing strip at each edge of each step down that aisle. On the upper left hand side of that photograph can be seen glowing edges of some of the steps of the right hand aisle.

24. Photograph numbered 11 at the top and 12 at the bottom of Exhibit 5 shows the three edges of the steps leading down from the platform to the commencement of row F. There appears, on a superficial view of that photograph, to be a gap in some of the strips, but that gap represents a photograph of the banister railing above those steps.

25. Photograph numbered 13 at the top and 13 at the bottom shows a glowing edge on each of the top of the landing and the two steps below the landing, being the steps down which the Plaintiff fell. In the same photograph there is at right angles to those three glowing lines a glowing line indicating the edge of the platform before one descends the commencement of the aisle that leads down to the stage.

26. The Defendant's case essentially is that the glowing marked edges of the platform and the two steps ought to have drawn the Plaintiff's attention to those steps, and that the Plaintiff did not observe those glowing lines because she was not watching where she was going. There is, however, a problem on this issue. This is the evidence given by the Plaintiff in cross-examination on this aspect of the case:

"Q. You say, do you, that you didn't see those strips, didn't see those glowing strips at the time you fell?

A. No.

Q. But you gave evidence earlier that when you were sitting on the floor after your fall you looked back and you could see the steps?

A. I could see the steps, I said 'Steps', not, not 'Lighting', I saw steps because you look and go what did you fall over.

Q. I suggest to you that you could see the steps because there was the glow strips on the stairs at the time that you fell?

A. I still don't recall seeing glow strips.

Q. That's because, isn't it that, rather than looking where you were putting your feet, you were looking at the band?

A. No, I was looking at the exit door, where the exit door was and the slither of light to come to that door; that was my guiding light to go to the toilet.

Q. Yes, so you weren't looking where you were putting your feet, you were looking somewhere else?

A. No, I'm presuming it was a flat as you come around a flat platform, just like a kerb that you would just normally, not expecting two steps there, I was going to the door, not, looking ahead like it's like I'm, I'm looking, it's, it's dark, you're not, I'm just following the path around, it's..

Q. But you presumed that, you said that you presumed that it was just a flat path.

A. Yeah.

Q. And that's despite the fact that you'd already come up those stairs and down the stairs to get into your seat, and up the stairs to get out of your seat?

A. Yeah, I accept, first time into the theatre, I have not been in there, I walked up with a group of people. I don't recall those two steps when I was going down, even though I might have walked..

HIS HONOUR

Q. You mean going up?

A. Well, well going up, I walked up them, yes, but I don't, I haven't seen those steps."

27. The Plaintiff then went on to say that she had been present for about five minutes before the performance started and therefore it was some 20 minutes since she walked into the auditorium. So that in that 20 minutes, she forgot of the presence of the steps up which she had climbed to get to the platform.

28. Evidence was given in the Plaintiff's case by Mr John Vesenjak, by Mr Michael Morris, and by Mr Chris Ramage. It was never suggested to Mr Vesenjak that there were these growing strips highlighting the edges of the steps. In chief, Mr Morris said that once the concert commenced, there was virtually no lighting within the theatre. It is common ground that the house lights were turned off once the performance commenced. Mr Morris did say that there were lights emanating from the stage once the performance commenced and he also noticed a light in the back corner from the bio box. He said, otherwise, there was darkness. He described the light from the bio box as being a “glow”. Mr Morris’s attention was drawn to the Plaintiff’s fall by a noise. He initially said the noise was “a scream”, but there is no suggestion that the Plaintiff actually screamed out. There may have been some form of low moan or the like but, essentially, it was the noise of her falling which drew his attention to her fall in the aisle behind row F.

27. He went on to say that when he heard the noise, he stood up and Mr Ramage, who was sitting next to him, stood up and he went out to assist the Plaintiff. Mr Morris was standing and he turned around and stayed where he was. In chief this evidence was given:

“Q. Did you make any observations of the stairs that were immediately adjacent to Linda that she had traversed at that time?

A. Only that they were dark. That’s all. There was no lighting on the stairs as such.”

30. It was never suggested to Mr Morris that the noses of the stairs were illuminated by glow strips. The next witness to give evidence was Mr Ramage. Again, Mr Ramage’s attention was drawn to the Plaintiff’s fall by a noise, which he described as an exclamation or the noise of her fall. He looked over his right shoulder. He could see the Plaintiff’s face. She was wearing dark coloured clothing. He then gave this evidence:

“Q. When you say you couldn’t [see] anything, was that because of the status of the lighting or was there something blocking your view?

A. No, no it was just dark. It was just black.

Q. Did you end up staying in your seat or did you go to where Linda was located?

A. I did get up and go to Linda. I looked to, I looked down to John first. He was further down the aisle and I, and I sort of indicated to him that I would get up and go. It was easier for me than anyone else in our group, so I was the one at the end of our group, so I got up and went to Linda’s seat, to see what, what had happened.

Q. But was there anyone with Linda once you walked around to where she was located or, was she still on her own at that point?

A. No, I, I - it’s a while ago but I’m - I feel that the woman was, the usher was there when I got there and she had a flashlight.”

He denied that he used his own mobile phone to light up the area where the Plaintiff fell. He maintained in cross-examination that the usher was using a torch. It was never suggested to Mr Ramage that the noses of each of the steps was highlighted by a glowing strip in the dark. As I have earlier mentioned, Ms Burbridge gave evidence. In chief she gave this evidence:

“Q. Do you recall looking at the stairs that she fell down at the time?

A. Not that I recall that I didn’t, no. But they were right next to us, so yes.”

A little later she gave this evidence in chief:

“Q. Other than the lighting coming from the stage which you have described, was there any other light available in the theatre at the time?

A. So, the tech desks have a series of lights on them so that they can operate their equipment and there is also reflective strips on the steps. And there’s, sorry, and there’s also aisle lights as well.”

31. There were, in fact, no aisle lights at this time. An aisle light was installed in 2022. There was no aisle light at the time of the Plaintiff’s fall. Whether the reference to the reflective strips represents a comment on the current state of the steps or the state of the steps at the time of the Plaintiff’s fall is completely unclear and one must bear in mind that Ms Burbridge herself had earlier said that she did not have regard to the steps. Furthermore, in cross-examination this evidence was given:

“Q. At any point, did you ever observe the subject stairs that the Plaintiff had fallen down while you were with her?

A. Not that I recall. Subconsciously, maybe. But I know they were next to where we were.”

32. Mr Burbridge was cross-examined about an incident report form made by other employees of the Council. In that regard this evidence was given:

“Q. And if it’s also recorded ‘The steps are dimly visible during a performance’ in the report, would you agree with that on the night in question?

A. I don’t think so for the night in question. There were more lights on the stage than any normal - like, a comedian or anyone else, the stage was lit up and they were up and down those stairs.”

33. The last clause refers to the fact that the members of the Hot Potato Band, the entertainment on this evening, were ten in number and, as part of their concert, they would go up the aisles and down and across the rear aisle and down the other aisle, performing up and down the aisle stairs. It is not a reference to there being any lighting on the stairs. Significantly, Ms Burbridge did not give evidence about glowing strips at that time. The front-of-house manager, Ms Annette Faulkner, said that she had no trouble finding the Plaintiff because she had been told by radio that she was in the “back corner of the theatre”. That is clearly a reference to the corner of the theatre where the bio box is, and beneath which was the platform from which the Plaintiff fell.

34. In cross-examination, there was reference by Ms Faulkner to the “glow strips” but that answer was not responsive to the questioning that Mr Anderson was conducting at that time. There was no further reference in Ms Faulkner’s evidence to these glow strips. Mr Delia O’Hara gave evidence but gave no evidence about the glowing strips.

35. The other person to give evidence in the Defendant’s case was Mr Jetender Kaul who was a “Cultural Venue Coordinator.” Mr Kaul regularly conducts inspections of, inter alia, the Civic Playhouse, but had never inspected the Civic Playhouse when the lights were turned off. There are a number of documents which have their genesis in Mr Kaul’s work.

36. On 7 June 2022, Mr Kaul requested that an aisle light be installed in the Civic Theatre Playhouse near the bio box stairs. On the morning of 7 June 2022, he had discussed that with “Adam”, who appears to have been another employee of the Defendant working in building trades. The aisle light above the stairs down which the Plaintiff fell was installed on the following day, 8 June 2022. There was another “work order” generated by Mr Kaul on the same day, 7 June 2022. According to the third document in Exhibit G, the narration was this:

“Civic Theatre Playhouse Auditorium stair treads need replacing. But glowing dark strips on the stair treads need to be looked at. These treads are required to glow in dark when patrons are seated in the auditorium.”

37. Although that note was dated 7 June 2022, the work order form, from which I am quoting, has a start date of 9 August 2022 and a finish date of 25 November 2022. At the bottom of that document are these notations:

“I arranged for the contractor (A1 Commercial Flooring) to attend site and meet Jetender to determine the scope of works and to discuss the repairs. Email was sent on Monday 26 September 2022.

I then received a quotation from A1 Commercial Flooring on 27 September 2022 to make repairs to the stair nosing’s [sic].

The quote was approved and the contractor completed the repairs on the stair nosing’s [sic].

I have received an Invoice(as said) for the repairs on 25 November 2022. The repairs must have taken place in early November 2022.”

38. The invoice from A1 Commercial Flooring bears the date 25 November 2022, and is for “replace stair nosings” which was for $5,115, inclusive of GST. The page numbered 218 in Exhibit G appears to be the original request by Mr Kaul for the attention to be given to the nosings of the stair treads and the glow in the dark strips, bearing the date 7 June 2022.

39. On p 222 in Exhibit G, there is another email, bearing date 7 June 2022, at 12 noon, and the priority given to it was this:

“As soon as possible - within five days.”

40. The details of the request are these:

“The Civic Theatre Playhouse Auditorium stair treads need replacing. The glow in dark strips on the stair treads need to be looked at. Then are not, then These(as said) treads are required to glow in the dark when patrons are seated in the auditorium. Could you please get these treads replaced? Thank you.

Regards,

Jetender.”

41. Page 223 of the same exhibit is an email sent on 26 September 2022 at 2.30pm by Mr Shane Wilczek, the Building Trade Services Coordinator of the Defendant. It refers to another email which he had received from Mr Kaul. The email is in bold in Mr Wilczek’s email. It is this:

“The Civic Theatre Playhouse Auditorium stair glow in dark treads are old and glow in dark strips are not wide enough to retain charge to glow for longer periods. Therefore, stairs are becoming hazardous in dark to use during the shows. We would like to request to replace these treads with wider glow in dark strips.

Thank you.

Regards,

Jetender.”

The inference to be drawn from that email is that the glow in the dark strips were old and were not retaining their ability to glow for long periods. That led to their creating a hazard. When asked in evidence as to how long they would glow for, Mr Kaul could not tell me. There was no evidence adduced that the glow in the dark strips, on the nosings of the steps in the auditorium, were glowing 15 minutes after the commencement of the performance, glowing at the time that the Plaintiff stood up in her seat and proceeded to go to the toilet. That is why she could not recall the glow in the dark strips and, clearly, no-one else present at the time refers to the glow in the dark strips actually glowing at the time of the Plaintiff’s fall. The inference to be drawn is that they did not hold their charge beyond a certain period of time.

42. Unfortunately, for the Defendant, the person who took the photographs upon which the Defendant relies, being the photographs which are Exhibit 5, was not identified, and gave no evidence as to how long the lights had been turned off, when the photographs showing the glowing strips were taken. For all I know, the glowing strips identified in photographs numbered at the top 10, 11 and 13, or at the bottom, 11, 12 and 13 in Exhibit 5, were taken immediately after the houselights were turned off and they were glowing quite satisfactorily at that time. Whether they were still glowing in that fashion some 15 minutes later has not been explained; that is, has not been the subject of any direct evidence.

43. Putting together what one gains from the various emails sent by Mr Kaul about the glowing strips, they clearly were not retaining their charge. I assume that the strips were given power by being exposed to direct lighting and that they glow for a period of time once the lights have been turned off, but for how long they were glowing on the evening of 9 April 2021 has not been adequately explained at all, which is why there is no evidence about them from either the plaintiff, Mr Vesenjak, Mr Ramage and Mr Morris, nor, indeed, from Ms Burbridge, the usher within the auditorium on the night of the Plaintiff's fall.

44. The inference to be drawn is that these old strips had not been working after a certain period of time. They clearly were old and were replaced probably in November 2022 by the Defendant.

45. Another curious aspect of this case is that the statement of claim issued out of the registry of this Court in Sydney on 28 March 2022, Messrs Moray & Agnew from their Newcastle office filed a notice of appearance in the registry on 1 April 2022 and a defence on 16 June 2022. Mr Kaul appears to have asked for the insertion of the aisle light above the stairs in question on 7 June and made his first email about the glow in the dark strips on 7 June and eventually after further emails that was attended to in November 2022. The cost was relatively modest.

46. The cost of the insertion of the aisle light above the stairs where the Plaintiff fell has not been established but the job was completed, I know, on 8 July 2022, not 8 June 2022. The job appears to have been done internally by an electrician employed by Newcastle City Council. The cost would probably not have been great.

47. The Plaintiff also relied upon what have been described as tactile tiles which were placed at the foot of the two steps up from the rear aisle onto the platform containing rows G and H. Evidence was given that that was to draw the attention to those walking who may be visually challenged that there was a hazard ahead.

48. On that reasoning, tactile tiles could have been placed on the raised platform to draw the attention of anyone traversing the platform intending to walk down the stairs that there was a hazard ahead. The cost of that was given by Mr Cauduro, the Plaintiff's expert. That, if my recollection be correct, was quite insignificant. He mentioned a figure of $500, which in view of the budget of the Council would hardly be excessive. Tactile tiles could also have been placed at the head of the staircase leading from the platform down to the stage. I am acutely aware of s 5C(c) of the Civil Liability Act 2002, which provides that:

"The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

49. The evidence adduced by the Defendant clearly established that no other person had fallen down the steps in question prior to the Plaintiff's fall, and there is no suggestion that anybody fell down the steps at any subsequent time. This was a "one-off" event.

50. If the Playhouse had been inspected when the lights were off and inspected at various times when the lights were off, the council could have ascertained when the glow strips lost their charge and ceased to operate as they were supposed to.

51. However, that does not appear to have occurred until sometime immediately prior to Mr Kaul's email that is referred to in the email of Mr Wilczek, of 26 September 2022. How Mr Kaul learnt that the strips were losing their charge early has not been adequately explained. His attention may have been drawn to it by someone else. Whoever that person is, I do not know.

52. The Defendant's internal investigation report is Exhibit F. The description of the incident contained in Exhibit F is this:

"Notes from [front of house manager, Ms Annette Faulkner] patron Linda Bennett [phone number redacted] (seated towards back at sides) fell down step when getting up to go to bathroom (auditorium was quite dark at the time). Very swollen ankle and painful. Usher Stacy [sic, scilicet]. Stacey Burbridge] advised of fall and assisted her onto a seat. Ice provided and after I assessed decided to call an ambulance.

I got bariatric wheelchair from cleaners’ room to get her from auditorium. Accident about 9.30pm. Ambulance transported her to JHH approximately 10pm. She was in great pain but very cheerful. Partner advised which hospital she was taken to (JHH), Stacey Burbridge who rendered initial help, Luke got ice, Andrew waited for ambulance on footpath.”

There is no other mention of Luke and Andrew, and I can only presume that they may have been working behind the bar at the time of the Plaintiff’s fall. Under the investigation details is a heading “Conditions at Time”, and that box contains this matter:

“Auditorium was quite dark at the time.”

53. A later entry says that the auditorium was quite dark at the time because it was during a performance. In the box headed “Investigation Summary” there is this statement:

“The steps are dimly visible during a performance.”

54. There is no mention in this incident form, which has two pages of substance, of any glow in the dark strips at all.

Was the Defendant Negligent?

55. Public auditoria admit many members of the public of many, many different descriptions. Both the very young and the very old can attend concerts or performances by dramatic companies, performances of comedies, performances by comedians, performance of plays. There can be performances directed for children, performances directed for teenagers and young adults and performances directed towards the more mature. I know nothing about the Hot Potato Band other than the five excerpts of their performance captured by the Plaintiff on her mobile phone. Those five excerpts became Exhibit B. They were certainly entertaining and clearly the audience appeared to enjoy them.

56. The Plaintiff was certainly enjoying the performance prior to her fall, as appear to have been the other people who gave evidence on the issues before me in this case. For example, not only members of the plaintiff’s party but both the evidence of Ms Burbridge and Ms Faulkner point in that direction. There had been an earlier performance which may have commenced in the late afternoon of Friday 9 April 2021.

57. Clearly, senior members of our community were attracted to attend this performance. Whether young people were also attracted, there is no direct evidence. Tendered in the Defendant’s case are attendance figures. MFI 7 is a summary of those attendance figures. Under the heading “Total Sales”, meaning, I assume, the sale of tickets, in the calendar year 2016, there were nearly 11,000 patrons. In the year 2017, there were some 13,561 patrons. In the year 2018, there were almost 12,000 patrons. In the year 2019 there were 11,530 patrons. In the year 2020 there were only 4,421 patrons. Clearly, that year was badly affected by the COVID-19 pandemic. In the year 2021 there were 11,801 patrons and last year there were, in fact, 19184 patrons.

58. That gives an average turnover of 11,916 patrons during that period, which means that approximately nearly 6,000 patrons used the staircases on the left-hand side of the auditorium as one looks from the stage. I have to bear that fact in mind and also the fact that there were no other falls recorded from those stairs. It is possible, of course, that there were falls that did not lead to any injury and were not formally reported but, again, that can only be speculation. How does one know that there were unreported falls unless they be reported? However, on the evidence available, it appears that the glow in the dark strips which were used to delineate the end of steps were not working at the time of the Plaintiff’s fall. They were old and needed to be replaced, and were replaced in November 2022.

59. They could have been replaced earlier but they were not. If they had been replaced earlier, the Plaintiff, if she fell, could not have brought the action upon which she currently relies. The cost of inspecting the interior of the Playhouse when the lights were off would have not been particularly great. Clearly, the ushers employed at the venue would be aware that, with the passage of time, the glow in the dark strips were not working throughout a performance. There is evidence in this case that the people were coming and going from the theatre whilst it was being used, that is, while the lights within the auditorium itself had been turned off and the only light was emanating from the stage, or perhaps a little light emanating from the bio box, and at times light would have entered the auditorium when the entry doors were opened to allow people to enter or when they were opened to allow people to leave.

60. The evidence suggests that there were regular comings and goings from the auditorium when it was in use. There were obviously people other than the Plaintiff who needed to visit the toilet, and there is also evidence of a fairly constant visitation by some to the bar to obtain perhaps liquid or other refreshment. That, of course, could involve the usual purchase of popcorn and choc tops; however, that is based upon an assumption. I have never visited the Civic Playhouse. I conclude that the Defendant could have inspected the auditorium of the Playhouse when the lights were off at various times to ensure that the glow strips retained their charge throughout the length of a performance, whether it was one hour, or one and a quarter hours, or one and a half hours, or two hours. However, that does not appear to have been done and, if it had been done, the failure of the glow strips could have been detected earlier than they appear to have been some time before September 2022.

61. One interesting thing, of course, is that what caused Mr Kaul to make the suggestions that he did on 7 June 2022. The only inference open from the evidence before me is it was probably the commencement of the Plaintiff’s action that caused Mr Kaul to do what he did in setting in train the steps leading to the installing of the aisle light above the steps in question and the installation of new nosings with large glow in the dark strips which were clearly new and thicker than the older ones and, therefore, more likely to retain their charge for longer.

Contributory Negligence

62. The Plaintiff is, accordingly, entitled to succeed in her action. The question then becomes whether she has been guilty of contributory negligence. On one view of it, she ought have remembered that when she entered the auditorium, she had to climb up two steps before descending two steps to get to her seat, a fact that had occurred some 20 minutes earlier. However, a lady entering a venue which she had not entered before with friends in a party could well just have followed what other members of her party were doing. I do not know who led the party into the auditorium, but the Plaintiff’s party may have been preceded by other patrons, and patrons just follow behind the leader, the proverbial bellwether, and I do not know on this occasion who the bellwether may have been.

63. However, one could understand that a lady taken with urinary urgency may have overlooked the fact that she had to climb two stairs as well as descend two stairs to reach her seat and, hence, she was unaware of the presence of the two steps which she missed seeing, leading to her fall. The proprietor of an auditorium such as this can expect the very young and the very old to be present, and they have with them a number of foibles, including the foible of being forgetful and the foible sometimes of being visually challenged, although there is no suggestion that the Plaintiff was visually challenged. I am not persuaded on the balance of probabilities that the Plaintiff was guilty of any contributory negligence.

64. Before turning to the question of damages, I should add this which I meant to say earlier when discussing liability. One of the matters that I had taken into account in determining both liability and the question of contributory negligence is this: as I earlier indicated, the auditorium of the Civic Playhouse was in the form of a sector of an amphitheatre. One, in the course of life, even if he or she be a judge, will have often attended a theatre or a cinema to take in a movie or to watch a play or to attend a concert. One is used to walking down from above into a theatre to get to a seat, or walking up from the ground floor to get to a seat higher up in the auditorium.

65. It is an unusual in an auditorium of the type that the Playhouse Theatre is where one enters at the top and walks down to one's seat, for one walking up to go to the entrance/exit door to have to walk downstairs after ascending, so that the presence of the two steps down from the platform that holds rows G and H on the left hand side of the auditorium, as one stands on the stage is somewhat unusual and is something which clearly the Plaintiff did not expect at the time she left her seat to go to the toilet.

Quantum

66. At the time of the event the Plaintiff was aged 52 years. She is now 54 years old. She was born in June 1968. A relevant fact here is that the Plaintiff was born with extreme bilateral club feet. A history recorded by Dr Richard Sekel, a consultant on occupational medicine qualified by the Defendant's solicitors says this about the Plaintiff's congenital problem:

"She was born with extreme bilateral club feet, i.e. her feet were soles up and pointing backwards.

At approximately age 12 months she had an operation on each foot, mostly correcting the posture of the feet, although some abnormalities remain (see enclosed photos). She had to wear custom made boots until age 13 (changed every three or six months because she was growing).

There are residual longitudinal surgical scars on the posterior surface of each ankle and lower leg.

Since that time she has been wearing reasonably normal shoes, which always must be enclosed and without elevated heels.

Over many years, both feet, but especially the right foot, tend to roll inwards (inversion), requiring frequent changes of shoes.

However, she is adamant that she never completely lost balance and never fell as a result of her feet."

The Plaintiff attended Graceville Primary School in Brisbane and attended secondary school at Kingaroy in Queensland. She completed what is now known as the equivalent of year 10 at the age of 16. That would have been in 1984. She spent 1985 working as a concreter. However, in 1986 she started working in the hospitality industry and has been working in that industry ever since. Dr Sekel has this employment history:

"She completed a one-year TAFE pre-vocational course primarily in food preparation (she estimates that it is equivalent to a Certificate IV in Hospitality).

She then did concreting for one year.

Since approximately age 18, she has always worked in the food industry. For the great majority of those years she has been working as a cook, but in her current employment four years ago she was elevated to the position of chef, without formal chef training.

Her employers over the past many years have included Meals on Wheels for three years, a Lutheran Aged Care facility for three years, South Burnett District Hospital for three years, and Uniting Aged Care facility in Mayfield for ten years.

Until 15 years ago she did occasional out-of-hours shifts in restaurants.

For the past eight years she has worked in the Catholic Healthcare facility in Mayfield, initially as a cook and for the past four and a half years as a full time chef for 76 hours per fortnight (6.30am to 2.30pm, five days per week).

Prior to the subject accident, she was working on rotating shifts (the facility functions seven days per week), but since returning to work after the subject accident she has been working strictly Mondays to Fridays. Initially there were 73 residents but for the past few years there have been 63 residents. She undertakes all normal kitchen work, dealing with large saucepans of food, et cetera. Since she was promoted to the position of chef four and a half years ago, she has been supervising 13 staff, on rotating shifts, generally involving three people in the mornings and four people in the afternoons."

67. The Plaintiff is the mother of four. She married Mr Garry Bennett in 1989. Their first child was born in that year; their son Matthew. Her second child was a daughter, Megan, born in 1991. A second son, Mitchell, was born in 1992. A second daughter, Melody, was born in 1993. Since 2016, Garry and the Plaintiff have been estranged but have not formally divorced. As I mentioned earlier today, the Plaintiff has been in a relationship over recent years with Mr John Vesenjak.

68. Initially, after her separation the Plaintiff was living alone but she has been living in Mayfield now for some considerable time with her elder son Matthew, who, as a result of an infection, became totally deaf. He has had a cochlear implant on one side which has partially restored his hearing, and he is booked in to have a cochlear implant on the other side when that can be made available to him. At the time of the Plaintiff's injury, she and Matthew were living together and sharing the household chores.

69. Prior to the injury now in question, the Plaintiff might work for three overtime shifts per week. If she did that, she worked from 2:30pm to 7:00pm, an overtime shift of four and a half hours. That indicates that her average overtime per month was 13 and a half hours.

70. The Plaintiff's injury occurred at approximately 9:00pm. I realise that is estimated by either Stacey Burbridge or Annette Faulkner to be at 9:30pm, but the likelihood is that it occurred at about 9:00pm, some 15 minutes after the performance commenced. I do know that the Ambulance Service of NSW received the phone call ordering the ambulance at 9:32pm. The ambulance was dispatched at 9:44pm. The Plaintiff was loaded into the ambulance from Hunter Street outside the entrance to the Civic Playhouse at 9:52pm. The ambulance arrived at the John Hunter Hospital at 10:16pm. The Plaintiff was removed from the stretcher of the ambulance at 10:48pm. According to the John Hunter Hospital records, the Plaintiff was admitted there at 10:29pm. Triage commenced at 10:32am. An X-ray was performed at 10:44pm. The x-ray is reported in this fashion:

“Marked hyperextension deformity of the foot. There was soft tissue swelling over the posterior distal leg with no clear definition of the Achilles tendon. There are several mildly dense calcific foci along the Achilles tendon. There is no fracture or dislocation. Correlation with clinical history and ultrasound are suggested in the first instance.”

71. The ultrasound was performed at 12:10pm on the following day, 10 April 2021. According to the John Hunter Hospital records, the Plaintiff was discharged at 3:40pm on that day. The diagnosis is clearly a partial tear of the right Achilles tendon. According to the discharge summary from the John Hunter Hospital, there was a small tear of the Achilles tendon. The plan developed, with the assistance of the orthopaedic registrar at the John Hunter Hospital was this:

“1. Front slab with foot in equinus position.

2. Non-weight bearing.

3. Follow up in fracture clinic in two weeks - referral made.

4. Non-operative management.

5. Enoxaparin 40 milligrams twice a day subcutaneously as DVT prophylaxis.

6. Zimmer frame support mobility (unable to mobilise with crutches). No frame available for discharge, so given spare frame from ED which patient will return on Monday.”

72. The latter did not come to pass. The Plaintiff could not manage a Zimmer Frame, and was given a small wheelchair. It was described by the Plaintiff’s son as being a child’s wheelchair, but that was suitable because it fitted through the doorways of the Plaintiff’s house, enabling the Plaintiff to be moved from her bedroom into the bathroom and from the bathroom into other rooms of the house.

73. The records produced from the John Hunter Hospital include materials from either the fracture clinic or the physiotherapy service of the Hospital. The front slab with the foot in equinus position was applied at the hospital prior to discharge. The slab was removed on 21 May 2021, a period of over five weeks. When the slab was removed, the Plaintiff was provided with a CAM boot with a 4-centimetre heel wedge. On 4 June 2021, the CAM boot wedge was reduced to being 2 centimetres only. On 18 June 2021, the Plaintiff was provided with a new CAM boot which had no wedge. By 9 July 2021, the Plaintiff had been using that CAM boot for three weeks. The practitioner noted that there was a “firm palpable band over the length of the Achilles.”

74. The plan then announced was to try to wean the Plaintiff off the CAM boot. On 15 July 2021, the physiotherapist noted mild swelling of the right ankle; however, it was the same size as the left ankle on measurement with a circumference of 32 centimetres at the ankle. There was firm feel over the whole length of the right Achilles tendon on palpation and no gap or pain. Again, there was discussion about weaning the Plaintiff out of the CAM boot.

75. The final consultation with a physiotherapist was on 10 August 2021. According to the physiotherapist, the Plaintiff was walking without any aid, it being now four months since the tear of the Achilles tendon. The notes end with this:

“Discussed ongoing management with patient - will take time to return to preinjury level. Needs to build standing tolerance for return to work. Patient happy to self manage. Will make contact if need more guidance.”

76. There was no such further contact with the physiotherapist at the John Hunter Hospital. On 15 September 2021, the Plaintiff attended upon her usual general practitioner, Dr Rita Singh, at Mayfield, and obtained a clearance to return to normal work. However, the Plaintiff could not immediately do so because she had been written out of the roster and she could only physically return to working at the aged care facility on 4 October 2021, and she did so and has worked ever since. She does her normal work. The only problem that she notices is in trying to push trolleys containing meals up ramps at the nursing home. She does not need to do so because she can get one of her staff members to do that for her.

77. The Plaintiff has never had any specialist treatment. She has not had any treatment since she saw Dr Singh for the clearance to return to work on 15 September 2021. She has seen a doctor about other problems but not about the condition of her right ankle. She has required no treatment since that time. The Plaintiff’s solicitor has qualified Dr Thomas Rosenthal, an occupational physician. Dr Rosenthal examined the Plaintiff in Sydney on 8 July 2022. Dr Rosenthal’s findings on examination are these:

“On examination, Ms Bennett had slightly deformed feet associated with clubfeet. There was partially a reduced dorsiflexion equally in both ankles which was related to her clubfeet. Scars were seen over both Achilles tendon regions from her previous surgery.

Over the right Achilles tendon there was tenderness and evidence of a small swelling bruise.

Her gait was slightly stiff when she walked. She was not springing properly off either foot and there were difficulties on heel walking and toe walking. She could squat hanging on.

There was a full range of movement and no abnormality at both knees.

Her calves measured equally at 43 centimetres on both sides, 10 centimetres below the inferior patellar pole.

There was no neurological deficits in her lower extremities.”

78. The doctor diagnosed ongoing right Achilles tendonitis, but that could only be based upon his finding of tenderness when palpating the Achilles tendon. There is no other ostensible reason for making such a diagnosis. As I earlier mentioned, the Defendant’s solicitor has qualified Dr Richard Sekel, a consultant in occupational medicine.

79. Dr Sekel’s findings on physical examination are more extensive. However, what he says needs to be carefully borne in mind:

“All movements performed in the physical examination were active, ie, performed under the voluntary control of the examinee, without physical input by the examiner.

She is a left handed 54 year old, morbidly obese woman, whose weight was 99 kilograms and her height was 158 centimetres (BMI 40). She appeared to be genuine in her responses.

She walked without a limp, but stated that she has to negotiate stairs one foot at a time (both feet on each step), and she is able to walk up mild slopes but has difficulty walking up steep slopes. She has no difficulty walking on downward slopes.

She demonstrated a normal range of crouching, walked on toes and heels alone, but she stated that each of these caused a stretching sensation in the posterior surface of the right ankle.

The enclosed photographs were taken with Ms Bennet’s permission to attach them to today’s report, indicating the following:

Multiple deformities of lower shins, ankles and feet, equal in each lower limb as follows:

Moderate diffuse soft tissue enlargement of both shins and ankles equally, and she states that the right ankle and shin has always been somewhat larger than the left, and that since childhood she’s always had to purchase one size larger shoe for the right foot than for the left.

Significant longitudinal surgical scars on the posterior surface of each lower shin/ankle from the operations at age 12 months [but she did not require an operation for the subject injury of the right Achilles tendon].

A very high arch of each foot equally, ie, in the medial part of each point.

Significant flat-footedness of the lateral (outer) part of each foot.

Each large toe is riding upwards (dorsiflexion), worse with the left foot than the right.

All ten toes have reduced range of motion approximately equally.

Both feet are moderately short (as occurs with clubfeet).

With regard to ranges of motion, she demonstrated equal ranges with each ankle today and all ranges of motion of each ankle/hind foot was mildly reduced due to her pre existing congenital and post-surgical anomalies as follows:

Dorsiflexion of each ankle was moderately reduced to -5 degrees, ie, she could not extend upwards either foot/ankle beyond 5 degrees of plantar flexion (see photograph).

Plantar flexion (toes downwards) was equal with each ankle/foot at 35 degrees.

Inversion of each ankle/foot was equal at 20 degrees.

Eversion was equal with each ankle/foot at 25 degrees.”

80. In his diagnosis, Dr Sekel confirmed that the right ankle was functioning in an identical manner to the left ankle. He ended up by saying this:

“In summary, by this stage, more than one and a half years since the subject accident, Mrs Bennet’s injury has fully resolved and she has returned to the level of physical capacity (occupational and personal) that existed prior to the subject accident.”

81. I read both medical reports closely and considered them and prefer the opinion expressed by Dr Sekel to that proposed by Dr Rosenthal. I accept that the Plaintiff is now in the same position that she was prior to the accident, and has been in that position, essentially, since she was cleared to return to work on 15 September 2021, returning to work as she did on 4 October 2021.

82. There is a complaint made by the Plaintiff about her right foot swelling more than the left, but there is no objective determination to the same effect. Furthermore, it is clear the plaintiff’s ankles swelled in the past when she was on her feet all day and that has continued throughout the period that she has been back at work, just as it was before when she was at work. The Plaintiff’s son also confirms that the Plaintiff has always been a slow walker.

83. The Plaintiff makes a claim for past economic loss. She lost her income between 10 April 2021 and 4 October 2021. The Defendant says that I should only allow economic loss during the period the Plaintiff was incapacitated; that is, only allow economic loss for the period up to 15 September 2021.

84. However, the fact that the Plaintiff could not return to work was the direct result of her being left off the roster and having to wait till a new roster was drawn, so that she could return to her workplace. I allow the amount claimed in respect to the period from 10 April 2021 to 4 October 2021, which I am told is $25,930.96. The past superannuation lost, based on that sum, is $3,111.72. I allow that sum.

85. The Plaintiff also contends that she should be awarded $58.67 net per week for the period from 5 October 2021 to the day that the hearing completed on 28 April 2023, an amount that comes in at $4,766.91. As I understand it, that is based upon a claim for loss of overtime. However, it is clear that the Plaintiff is doing all the work required of her, and I am not persuaded on the balance of probabilities that there is any discrete past further economic loss. However, I am prepared to allow a small buffer for any past and any future economic loss, although it is difficult to see how that may arise in future. I am prepared to allow a buffer of $5,000.

86. The past out-of-pocket expenses are agreed to be the princely sum of $694.26. The majority of that is for Ambulance Service of NSW, the sum of $531.16. The balance of $163.10 is a notice of charge from Medicare. Apparently, most of the plaintiff's treatment provided at the John Hunter Hospital was provided by the State of NSW gratuitously. However, clearly I allow the past out of pocket expenses of $694.26.

87. The Plaintiff also claims a sum essentially for pain relief medication for future out of pocket expenses and for some future care that Dr Rosenthal thought was necessary: further physiotherapy and a further ultrasound of the right Achilles tendon. The fact that no physiotherapy has been provided since August of 1991 indicates to me that it is not required at all, nor is there any logical reason why the Plaintiff should have a further ultrasound of her right tendo Achilles. I allow nothing for future treatment expenses. That is consistent with my accepting the evidence of Dr Sekel in that regard.

88. There is a claim for domestic assistance. Each party has qualified an occupational therapist. The Plaintiff's solicitors have qualified Emma Deighton, a consultant occupational therapist who has produced a 17 page report. Her summary is on p 3. She calculates that between 9 April 2021 and 6 May 2021 the Plaintiff required 12 hours' care per week. In stage 2 between 7 July 2021 and 30 July 2021 she required nine and a half hours per week. In stage 3 from 1 August 2021 to 1 November 2021 she required 7.5 hours per week. Since 4 October 2021, she has required four hours' care per week.

81. The Defendant has qualified Mr Mateusz Miszczuk, also a consultant occupational therapist. Mr Miszczuk generated a 35-page report. He calculated that in the period from 10 April 2021 to 3 June 2021, the Plaintiff required 10.38 hours' care per week. During the period from 4 June to 14 July 2021, she required 5.25 hours per week. In the period from 15 July 2021 to 9 October 2021, she required 2.50 hours per week care.

82. There has been a conclave of these occupational therapists that really did not change anything very much. According to an aide memoire, MFI-8, made by Ms Epstein for the Defendant, Mr Miszczuk maintained his earlier position and Ms Deighton increased the amount of continuing care required, although did reduce some of the time required in the third period, that is, from 15 July 2021 to 9 October 2021.

83. Under s 15(3) of the Civil Liability Act 2002, no damages are to be awarded for gratuitous attendant care services unless the services are provided, or are to be provided for at least six hours per week and for a period of at least six consecutive months.

84. The assessment of Mr Miszczuk both in his report and following upon the conclave do not entitle the Plaintiff to pass that threshold. According to the assessment of Ms Deighton, each assessment that she has made does permit the Plaintiff to those thresholds. I have approached the matter somewhat differently.

85. Mr Matthew Bennett gave evidence. He is currently working as a cook, obviously well trained by his mother, at two establishments: the Glendale Lone Star and at Rudy's Rotisserie, a gourmet takeaway shop. Both of those establishments are in Glendale. Mr Bennett told me that he arose at 6am. The first half hour of the day saw him showering, shaving, and dressing. He started work then at 10:45am. To get to work on time he left home at 10:15am. He was able to do things around the house for the benefit of himself and his mother between 6:30am and 10:15am, a period of three hours and 45 minutes. In the evening, he would get home at some time between 10:30pm and 11pm and he would go to bed at some time between 2:00am and 2:30am. Looking at things in rough terms, there were approximately three hours’ work he did each evening. Three hours and 3 hours and 45 minutes is six hours and 45 minutes. That was when the Plaintiff was confined to the wheelchair and unable to do very much at all.

86. The problem here is that in that six hours and 45 minutes, Mr Bennett was doing chores not only for his mother but for himself as well. He had washing to do and washing to hang out. He had meals to cook for himself and for his mother. He had to clean the house for himself and his mother. He had to put out rubbish in the bins and the bins out for collection each week for himself and for his mother. He needed to do shopping not only for his mother but also for himself. He has been a fine son to the Plaintiff, but at maximum he was spending some six hours and 45 minutes doing chores for the two of them. The only reasonable way of dividing that up is to assign roughly half of it to Mr Bennett himself. Initially it may have been more than half, but in six hours and 45 minutes, it is hard to see how he could be providing six hours solely for the benefit of his mother.

87. I am not persuaded on the balance of probabilities that any time has Mr Bennett provided to the plaintiff six hours’ continuous care daily. The requirement is care weekly, not daily. However, when one considers that the Plaintiff was confined to a wheelchair when she was in the back slab and appears to have continued to use the wheelchair for a couple of weeks after she was first placed in the CAM boot, one can see that the amount of hours, was probably greater than six hours per week, but gradually it has worn down. I am just not persuaded on the balance of probabilities that Mr Matthew Bennett has provided six hours’ care per week to his mother for at least six months. The claim for domestic assistance, accordingly, does not reach the statutory threshold and that claim must fail. The remaining claim is in respect of non-economic loss.

88. Under s 18(2) of the Civil Liability Act, the maximum amount to be awarded can only be awarded in a most extreme case. The present Plaintiff’s claim is very far from a most extreme case. There was no rupture of the tendo-Achilles which would have required surgery. There was only a partial tear of the tendo-Achilles which healed with conservative treatment. The tendo-Achilles is now in as good a position as it ever was. The Plaintiff was inconvenienced by her symptoms for a period from 9 April 2021 until she returned to work on 4 October 2021. Since that time, there may have been some intermittent symptoms. This is very far from a most extreme case.

89. I have considered the matter carefully. I bear in mind the Plaintiff’s age. She was 52 at the time of the injury. She is now 54. The symptoms were largely confined to a closed period in the past. However, I accept that the injury was relatively severely upsetting, confining her to a wheelchair for at least six weeks, if not longer, impeding her mobility for the best part of three months and taking away from her the society of everybody than her elder son. Ladies such as the Plaintiff often take comfort and social relevance from the peer group with whom they work. The plaintiff no doubt also obtained some pleasure, for example, from talking to the residents of the nursing home where she worked and with other members of the staff.

90. Doing the best I can, I believe that this is 15% of a most extreme case. That entitles the Plaintiff to damages for non-economic loss of $7,000. If my mathematics be correct, the total of the sums which I have allowed is $49,034.05. The occupational therapists have indicated agreement that the Plaintiff is entitled to a self-propelled motor mower at a cost of $1,665.02 and a kitchen stool at a price of $250. Allowing for replacement costs for the self-propelled mower, that amounts to, according to MFI 8, the sum of $7,297.11. I am prepared to allow that sum. When I add that to the other figures it comes to $49,034.05.

Orders

99. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $49,034.05.

100. I order the Defendant to pay the Plaintiff’s costs.

101. I wish to add this on that question. The cause of action arose in Newcastle in probably less than 100 metres from the Newcastle courthouse. The Plaintiff was a resident of Newcastle. The Defendant is the Newcastle City Council. All the lay witnesses but for one was a resident of Newcastle. The one lay witness who is not a resident of Newcastle was Mr Sam Wylie, a lighting technician/lighting designer, who, whilst normally a resident of Sydney, was working in Melbourne at the time he gave evidence and he gave evidence by audio visual link. The solicitors have qualified doctors in Sydney. The occupational therapists worked for businesses in Sydney, and the Plaintiff qualified an expert who lived in the Illawarra. However, the location of qualified experts is a matter purely for the solicitors who qualified them. This case ought to have been heard and determined in Newcastle. I give this judgment today in Newcastle because I am sitting today in the Coal Miners Workers Compensation list at Newcastle. But most of the cases today have all been resolved one way or another.

102. There was no reason at all for this matter to have been commenced in Sydney. The only thing that caused it to be commenced in Sydney is I suspect the fact that the Plaintiff’s solicitors would have offices in Sydney and not in Newcastle. That is not a sufficient excuse for commencement of proceedings in Sydney rather than Newcastle. The balance of convenience clearly favoured Newcastle. As a result, a lot of the evidence was given by AVL, by people who did not know how to use it properly, causing inevitable problems with the presentation of the evidence. It all ought to have been done in Newcastle. If the Plaintiff’s solicitors incurred any extra costs because evidence that should have been given in Newcastle was given in Sydney, that cost should be borne by them and not by the Defendant.

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Decision last updated: 07 April 2025