Blaine v The Owners of Duesburys House Strata Plan 7239 - [2010] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BLAINE -v- THE OWNERS OF DUESBURYS HOUSE STRATA PLAN 7239 [2010] WADC 81

CORAM: DAVIS DCJ

HEARD: 27-29 JANUARY & 1 FEBRUARY 2010

DELIVERED : 28 MAY 2010

FILE NO/S: CIV 1319 of 2006

BETWEEN: DAWN LORRAINE BLAINE
Plaintiff
AND
THE OWNERS OF DUESBURYS HOUSE STRATA PLAN 7239
Defendant

Catchwords:

Negligence - Occupiers' liability - Personal injury - Duty of care - Damages

Legislation:

Civil Liability Act 2002, s 5B s 5D, s 5K, s 9
Occupiers' Liability Act 1985
Strata Titles Act 1985, s 33(1)
Workers' Compensation and Injury Management Act 1981, s 92, s 93

Result:

Judgment for plaintiff
Damages assessed at $184,680.00

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr J R Criddle

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Spark Helmore Lawyers

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

Shire of Leonora v Cooper (2008) 51 MVR 397
Adeels Palace Pty Ltd v Bou Najem (2009) 260 ALR 628; [2009] HCA 48
Betts v Whittingslowe (1945) 71 CLR 637
Bowen v Tutte (1990) Aust Torts Reports 81 – 043 at 68,086
Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134
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
Drotem Pty Ltd v Manning [2000] NSWCA 320
EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998
Flounders v Millar [2007] NSWCA 238
Fox v Wood (1981) 148 CLR 438
Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hamilton v. Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Hi-tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342
Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, [2003] HCA 61
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Jackson v Lithgow City Council [2008] NSWCA 312
Jones v Bartlett (2000) 205 CLR 166
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWSCA 246
ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235
Ridis v Proprietors of Strata Plan 10308 (2005) 63 NSWLR 449
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Ruddock v Taylor (2003) 58 NSWLR 269
Shire of Leonora v Cooper (2008) 51 MVR 397; [2008] WASCA 247
Swain v Waverley Municipal Council (2005) 220 CLR 517
Vairy v Wyong Shire Council (2005) 223 CLR 422
Vanguard Press Pty Ltd v Baxter (1995) 14 SR (WA) 190
Waverley Council v Ferreira (2005) Aust Torts Reports 81‑818; [2005] NSWCA 418
Wyong Shire Council v Shirt (1980) 146 CLR 40

DAVIS DCJ: In mid‑March 2005 Mrs Blaine, an administration assistant employed by an employment agency, was assigned to work for the Taxation Institute for a period of eight weeks. She was undertaking clerical work - general office work, updating a database, doing the mail and answering the phones.
The Taxation Institute had its office on the first floor of Duesburys House, a two storey office building in West Perth. This building had two sets of stairs going up from the ground to the first floor, one set of stairs on each side of the building. The stairs were carpeted, with treads or nosings fixed to the carpet at the front of each stair. The stairs were also steep, comprising 18 steps or risers without a landing. There was a hand rail on one side of the stairs and a wall without a hand rail on the other side. There was no lift or other way of getting to or from the first floor, other than by the stairs.
At the end of her second day working for the Taxation Institute, 15 March 2005, Mrs Blaine left the office, taking the left hand set of stairs down to the ground floor. On her way down she tripped and fell to the bottom of the stairs. She lost consciousness and was taken by ambulance to Royal Perth Hospital.
Mrs Blaine sued the Owners of Duesburys House Strata Plan 7239, the Strata Company responsible for the common areas of the building, claiming damages for the injuries she suffered in her fall. She alleged that she fell because the front of the right sandal which she was wearing became caught between the rubber strip running across the front of one of the stairs and the surface of the stair. Mrs Blaine alleged that her sandal became so caught because the rubber strip "protruded", either because it had become detached from the stair or because the carpet on the stair had become worn.
The Strata Company (which represents the Owners of the building in litigation: see s 33(1) of the Strata Titles Act 1985) denied the claim and alleged contributory negligence on Mrs Blaine's part.
At issue in this matter are both liability and quantum.

Liability

The Strata Company has admitted that it occupied the common areas of the building. There is no issue that the stairs were part of the common property. It was not in dispute that the Strata Company as occupier owed Mrs Blaine a duty of care.

Legal principles relevant to liability

The duty of care of an occupier is to exercise reasonable care to avoid risks of physical injury to the plaintiff by reason of any danger due to the state of the premises or to anything done or omitted to be done on them: see s 5(1) of the Occupiers' Liability Act 1985.
In determining whether an occupier has discharged that duty of care, s 5(4) of the Occupiers' Liability Act sets out a number of matters to which consideration shall be given.
The "harm" in this case, namely personal injury, was suffered by Mrs Blaine after 1 January 2003. As a result the Civil Liability Act 2002 also applies to her claim.
The Civil Liability Act also sets out, in s 5B(2), factors to be considered when determining liability. These are different from those set out in s 5(4) of the Occupiers' Liability Act.
There is an issue as to the interrelationship between these two provisions, s 5(4) of the Occupiers' Liability Act and s 5B(2) of the Civil Liability Act, as they apply to a claim against an occupier, which is yet to be resolved by the Court of Appeal in this State: see Department of Housing and Works v Smith (No 2) [2010] WASCA 25 per Pullin JA at [19] and per Buss JA at [63]. Both of these provisions do, however, reflect matters to which the common law has regard when determining breach of duty of care under general common law principles of negligence. I consider that no different result would be reached whether the common law, s 5(4) of the Occupiers' Liability Act or s 5B(2) of the Civil Liability Act was applied: see Department of Housing and Works v Smith (No 2) (supra) per Pullin JA at [20] (with whom Newnes JA agreed) and Buss JA at [85] to [88]. 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 as 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 at 47–8.
The duty of care owed by an occupier of premises is a duty of reasonable care: see s 5(1) of the Occupiers' Liability Act;Romeov Conservation Commission of the Northern Territory (1998) 192 CLR 431 per Kirby J at 480; Jones v Bartlett (2000) 205 CLR 166. 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 at [192]. That is also what the court must do pursuant to s 5B(1) of the Civil Liability Act: Waverley Council v Ferreira (supra) at [27]; Department of Housing and Works v Smith(No 2) per Buss JA at [87] and [88].
Reasonable care is assessed prospectively, and not by applying the benefit of hindsight: Jones v Barlett (supra) at [20]; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [18], [65] and [66]. That general principle of common law applies to claims pursuant to the Civil Liability Act: see Adeels Palace Pty Ltd v Bou Najem (2009) 260 ALR 628; [2009] HCA 48 at [31] (discussing the application of the Civil Liability Act 2002 (NSW), applying Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] to [129]); Department of Housing and Works v Smith (No 2) per Pullin JA at [34]; per Buss JA at [87] and [88].

The issues in this case

The pleadings were unfortunately not helpful in determining the issues in this case. The content and scope of the duty owed by the Strata Company was not pleaded in the statement of claim. Another matter not pleaded in the statement of claim, but on which counsel for Mrs Blaine opened and evidence was led, was that before Mrs Blaine's fall the Strata Company knew that there was a problem with the stairs. As the trial proceeded, the Strata Company did not dispute that Mrs Blaine fell, but submitted that it was highly improbable that the condition of the stairs was the cause of her fall. This issue of causation was another matter which was not pleaded.
Having regard to the pleadings, the evidence and the submissions of the parties at trial, I consider that the following issues are those which I need to determine relevant to liability:
1.How did Mrs Blaine fall down the stairs?
2.The state of the premises: What was the condition of the stairs at the time of Mrs Blaine's fall? Did this constitute a "danger" within the meaning of the Occupier's Liability Act?
3.Breach of duty: What was a reasonable response by the Strata Company to the condition of the stairs?
4.Causation: Did the condition of the stairs in fact cause Mrs Blaine to fall?
5.Contributory negligence.

How did Mrs Blaine fall down the stairs?

The only evidence of the fall was from Mrs Blaine. She gave evidence that a man named "Chris", who was employed by the Asthma Foundation which had its office on the ground floor of the building, had helped her lock the door to the Taxation Institute, followed her down the stairs and may have seen her fall. Neither she nor her lawyers had been able to identify or locate that witness.
Mrs Blaine gave evidence that she had to post some mail before she left for the day. She had her handbag over her right shoulder and some letters (about six) in her right hand. While she made her way down the stairs she had her left hand on top of the banister or hand rail at the side of the stairs. She was wearing open toed sandals with a heel about 8 centimetres (3 inches) high. These sandals had straps which ran across the top of the foot below her toes ("the front straps"), and an ankle strap which slipped on and sat both at the back of and across the front of her ankle ("the ankle strap").
Mrs Blaine had taken several stairs, about four to six, when she had her fall. She had her right foot on one stair and had placed her left foot on the stair below when she felt her right foot become "stuck". It was the front of her right sandal which was stuck. She glanced down at her right foot and saw that her toes had slipped out of the front straps of her sandal, but the ankle strap was still around her ankle. She tried to pull her foot up and realised she was going to fall. She grabbed as hard as she could on the railing with her left hand to try and stop herself from falling. She did not remember anything after that until she woke up at the foot of the stairs, being looked after by a woman who told her she was a nurse. An ambulance then arrived to take her to hospital.
Mrs Blaine admitted that she could not say how the front of her sandal had become stuck, she only knew that it was stuck and that when she glanced down she saw that her toes had come out of the front straps. It was just a very quick glance because she realised she was going to fall and she then became more worried about how far she was going to fall. In cross‑examination she explained that her right foot was behind her at this stage because her other foot was already on the next step.
Having observed Mrs Blaine while she gave her evidence, I found her to be a credible and reliable witness. She impressed me as careful and conscientious and she gave her evidence in an honest and straightforward way, without exaggeration. That she does not exaggerate or embellish is supported by the evidence of the medical practitioners by whom she was reviewed. Mr Peter Bath, an experienced consultant orthopaedic surgeon, reviewed Mrs Blaine and gave evidence for the Strata Company. He stated that part of the medico‑legal process involves looking for signposts of embellishment and usually a comment was made if a medical practitioner gained an impression of embellishment by a patient. Mr Bath said that Mrs Blaine was straightforward and he could not detect any embellishment of her symptoms. Mr John Hill, another experienced orthopaedic surgeon also called by the Strata Company, commented in one of his reports that Mrs Blaine did not embellish her symptoms. At trial he explained her symptoms were consistent with any pathology or objective findings, clinical or radiological. In his most recent report dated 15 January 2010, Mr Hill also recorded there were no inconsistencies between Mrs Blaine's presentation and his objective clinical findings on examination. Dr John Ker, a specialist in rehabilitation medicine and consultant physician called by Mrs Blaine, said that he did not think he had at any time seen Mrs Blaine attempt to amplify her symptoms.
I accept Mrs Blaine's evidence that she fell from near the top of the stairs, several stairs from the landing. As a result of the fall she suffered a head injury, with a loss of consciousness and a laceration requiring sutures. She subsequently suffered vertigo for several months. She suffered a laceration to her right forearm. She suffered significant bruising, particularly on her back and right hip. Her left shoulder was injured and she subsequently suffered lower back pain. I consider these injuries are consistent with a fall from near the top of the stairs. I find that Mrs Blaine fell from near the top of the stairs.
I find also that Mrs Blaine fell because the front of her right sandal became stuck or caught in or on something on the stairs. The sandals she wore at the time were produced as an exhibit and Mrs Blaine demonstrated the fit of those sandals and how her foot came out. She gave evidence in cross‑examination that she had never had a problem with the fit of these sandals and had worn them on the day before her fall. From Mrs Blaine's description and demonstration I find that the front of that sandal became caught and that when she lifted her right foot, the toe of the sandal remained while her foot was pulled out of the two front straps. How the front of the sandal became so caught is a matter I will address after reviewing the condition of the stairs and the issue of causation.

The state of the premises: What was the condition of the stairs at the time of the fall?

There is no complaint about the height or the risers on the stairs, or the depth of the stairs. The complaint is about the condition of the stair nosing, which ran across the front of each stair, and the condition of the carpet on the stairs. The stair nosing was usually referred to in this trial as the "rubber strip", although sometimes it was referred to by counsel and witnesses as the protection strip, tread, nosing or capping. I will refer to this strip, or nosing, as "the rubber strip". The evidence was that each rubber strip was aluminium, with a black rubber inlay or strip running along the top. The black rubber inlay was fixed in some way onto the aluminium, and the whole aluminium strip was then fixed onto the carpet.
In February 2005 Mr Michael Klyne, a commercial property manager for some of the strata unit owners, was visiting Duesburys house. Mr Klyne impressed me as a careful person who gave evidence as best as he could remember. Mr Klyne gave evidence that he inspected the stairs and noticed that the carpet was lifting on both sets of stairs. He could not remember exactly on which particular stairs the carpet was lifting, but he could recall one stair towards the top of the left hand set of stairs where he saw the carpet lifting at the edge of the rubber strip, where the carpet met the rubber strip. In response to a question asked of him about whether the nosings were adequately secured to the steps, he said he felt that the whole area could have been redone and the security of the strips could have been rectified. He remembered that on the particular stair where he saw the carpet lifting, part of the lip of the rubber strip (which he described as "the black strip") was not properly secured and the carpet which was lifting was also frayed away. It was, as he put it, "worn, that worn that it actually tore away from that black strip". He saw the carpet lifting on other stairs, but could not remember on how many other stairs he saw this. He said that he found a bit of lifting on both sets of stairs, but mainly on the left hand stairs. He did not see rubber strips loose or coming away at that stage, but he saw a couple of stairs near the top of the left hand set of stairs where there was a slight "bubbling" or buckling of the rubber strip.
On returning to his office Mr Klyne sent an email to Mr Phil Langdon, of Strata Administration Services Pty Ltd, the strata management agent for the Strata Company. That email was dated 16 February 2005 and advised:
"The carpets on both stairs ... needs attention (trip hazzard)" (sic).
After receiving Mr Klyne's email, on 24 February 2005 Mr Langdon issued a work order to a maintenance company, West Coast Maintenance, with a request under a heading "Scope of Works" as follows:
"Hello Franc,
Please find attached copy of Email with regards to carpet at the complex.
Please assess and as carpet may need replacing, Margaret will need to be contacted and shown samples of commercial carpet appropriate to lay on timber stairs.
Margaret will make the decision on the carpet and authorize quote prizes.
Please attend to immediately for safety".
The reference to the "Email" was, Mr Langdon thought, a reference to Mr Klyne's email. Mr Langdon could not recall any email other than the email from Mr Klyne. "Margaret" was a reference to Margaret Seebeck of the Asthma Foundation, one of the strata owners which according to Mr Langdon owned the majority of the units in the building. Margaret Seebeck was acting as on site liaison for the Strata Company.
On the bottom of this work order there was a section entitled "Conditions of Work Order" followed by five tick boxes to indicate the level of urgency and the number of hours within which the work order was expected to be met. Underneath those boxes was a request that "If these conditions can't be met, please contact the office so alternative arrangements can be made". The box marked on this work order was "Unpleasant" which stipulated a period of 24 to 48 hours.
The carpet was not, however, replaced before Mrs Blaine's fall. There was no evidence of any inspection of the stairs having taken place before Mrs Blaine's fall.
After Strata Administration Services was notified of Mrs Blaine's fall, Mr Langdon, accompanied by another director of Strata Administration Services, Mr Warren Kiddle, and Margaret Seebeck, attended the premises and looked at the stairs, taking photographs. I will refer to this as an "inspection", although Mr Kiddle said "it's not an inspection to us. It was just simply a case of being on site because we'd been notified that somebody had hurt themselves".

After this inspection Mr Kiddle wrote to the insurers for the Strata Company to notify them of the possibility of a claim arising from the fall. Mr Kiddle's letter, dated 16 March 2005, attached a letter sent through to their offices (which was not attached to the exhibit at this trial) and advised:
"We have attended the site today and placed signs noting a possible trip hazard, we took several digital photographs.
It appears the fall has pulled off the RHS of the step tread and we have made arrangements for the tread to be screwed down. We are in the process of having the carpet through the common areas replaced. I anticipate this is scheduled for the 2 April 2005.
… It (sic) step tread in concern is the sixth going up from the bottom of the stairs ..."
There were seven photographs produced at trial (Exhibit 1) which were confirmed to be the photographs taken at the time of this inspection. There was one general long shot of the whole set of stairs, showing Margaret Seebeck standing approximately six stairs up from the bottom, and Mr Kiddle closer to the bottom of the stairs (photograph 1). There was one shot looking down on the last six stairs (photograph 3). The other photographs were closer views of the sixth stair. One of those (photograph 5) shows a woman's foot placed on the stair.
Mr Kiddle said he walked up and down the steps and although there were "little bits of fraying everywhere" he did not notice any lifting carpet in the course of walking up and down the stairs. Mr Kiddle agreed with a proposition put to him in cross‑examination that the photograph taken of the sixth stair, Exhibit 1 photograph 6, was indicative of what was the worst case of the carpet.
In relation to what he had said in his letter to the insurers dated 16 March 2005 about the "step tread" having "pulled off", Mr Kiddle said that what had in fact been pulled off, or as he later described it, "lifted away" was the right hand side (the side nearest the wall) of the entire aluminium strip, not just the rubber on top of it. He also explained that it had lifted, but then sprung back into position. The photographs show that rubber strip lying flat on the carpet on the stair. Mr Kiddle stated that "looking at it you wouldn't even know that it was lifted".
Mr Kiddle stated in his evidence that although "we weren't sure", the rubber strip (that is the entire aluminium strip with the rubber on top) was glued onto the carpet. His description of how one side of the rubber strip on the sixth stair had partly lifted indicates that this was glued onto the carpet.
Mr Langdon was also asked about what he observed about the condition of the stairs. He said that the condition didn't look any different to how it had over the previous 12 months. He was also asked about the rubber strips on the stairs and whether he noticed anything about them. Mr Langdon replied that he noticed that "it had them on the steps" and "that's it". The next day, however, 17 March 2005, Mr Langdon issued a further work order to West Coast Maintenance. Under the heading "Scope of Works" this work order stated (with the emphasis as shown in the work order):
"Hello Franc,
I have issued a Work Order as confirmation of the following (as previously discussed).
New carpet is to be supplied and laid to both set of stairs and common area on the top floor landing.
Please include nose cappings to all steps.
Margaret will confirm carpet choice to be laid.
Please attend to immediately for safety reasons."
By this work order, which Mr Langdon signed, I consider that he recognised there was a problem with the rubber strips, or as he has referred to them in this work order, the nose cappings on the stairs. At the same inspection, Mr Kiddle had noticed that the rubber strip on the sixth step had lifted. In the light of the work order of 17 March 2005 and the other evidence given during this trial, I do not accept Mr Langdon's evidence about the condition of the stairs.
An inspector from WorkSafe, Mr Keith Traynor, gave evidence that he attended the building and inspected the stairs on 17 March 2005. Mr Traynor was unable to recollect anything of his inspection and had to rely on his notes. His notes recorded "Inspected stairs. The carpet and the rubber beginning to separate". He explained that the carpet was coming apart so that it was not as fixed as it should have been. He was unable to recall on how many stairs he noticed that happening. He subsequently issued an Improvement Notice in which he recorded:
"Following an injury on 15.03.05 to an employee who fell down the stairs between the first and ground floor my inspection revealed that parts of the carpet are worn in areas close to the rubber nosing on the stairs".
From the evidence of Mr Klyne, Mr Traynor, Mr Klyne's email of 16 February 2005 and the work order dated 24 February 2005 I am satisfied that there was wear in the carpet on a number of the stairs and there was, on stairs other than the sixth stair, worn carpet which had separated or was separating from the rubber strip. I accept Mr Klyne's evidence that he saw a stair towards the top of the left hand set of stairs with carpet so worn that it had torn away from the rubber strip, leaving part of the rubber strip not properly secured. I also accept his evidence that he saw lifting carpet on other stairs, and bubbling or buckling of other rubber strips. It is true that Mr Klyne was shown Exhibit 1, and was unable to see any of the bubbling or buckling of the rubber strips about which he gave evidence, but that is understandable since Exhibit 1 contains close up photographs of only the bottom six steps.
Counsel for the Strata Company relied on Mr Kiddle's agreement with the proposition put to him in cross‑examination that the photograph of the sixth stair, photograph 6 of Exhibit 1, showed the worst of the stairs. Counsel for the Strata Company submitted that the stairs did not present any real tripping hazard. In my view there are a number of difficulties with that submission.
First, Mr Kiddle and Mr Langdon focussed on the sixth stair and on their evidence carried out no close inspection of anything other than that stair. Mr Kiddle did not consider it an inspection; they were just on site because there had been notification of an incident. He also said "there was no other step that was of any interest to us other than the one that was of concern". Mr Kiddle's and Mr Langdon's focus on the sixth stair was based on what they were told by Margaret Seebeck. Mr Langdon gave evidence that she apparently indicated to him and Mr Kibble the stair on which she thought the person had tripped, so they took photographs of around that area. Margaret Seebeck was not called and no other evidence was produced by the Strata Company in support of the contention that it was the sixth stair from which Mrs Blaine fell. I have already observed that Mrs Blaine was a credible and reliable witness and I have accepted her evidence that she fell from higher up on the stairs. I find that the sixth stair which was photographed was not the stair from which Mrs Blaine fell.
Secondly, there is evidence from two independent witnesses, Mr Klyne and Mr Traynor, which I accept, that there were other stairs with worn carpet and carpet lifting or separating from the rubber strip. In particular Mr Klyne also identified another stair, at the top, where part of the rubber strip was not properly secured.
Thirdly, it was found by Mr Kiddle on his inspection of the sixth stair that the rubber strip had in fact pulled off the right-hand side of the sixth stair, but then sprung back into position. He assumed or suspected that the lifting of the rubber strip had been caused by Mrs Blaine's fall from that stair. As I have found, that was not the stair from which she fell.
Fourthly, I do not accept that reliance can be placed on photograph 6 as evidence that the stairs did not represent any real tripping hazard. That photograph does show that the carpet is worn and fraying at the edge of the rubber strip. There are loose carpet threads of varying length. The photograph does not show a problem with the rubber strip, however, based on Mr Kiddle's evidence, the rubber strips on the stairs were glued to the carpet, the right hand side of the rubber strip on the sixth stair had in fact lifted or pulled off, but then sprung back into position, and if you looked at that stair "you wouldn't even know" that the rubber strip had lifted. From this evidence it is apparent that whether all or any of the rubber strips on the stairs were properly secured could not be judged simply by looking at the stairs, nor would it be apparent from a photograph.
Finally, the evidence of the two work orders confirm that the condition of the stairs and the rubber strips on the stairs were such that the Strata Company recognised that all of the stairs had to be immediately attended to for safety reasons.
I find that the condition of the stairs immediately before Mrs Blaine's fall on 15 March 2005 was such that the carpet was worn. On a number of stairs the carpet close to the edge of the rubber strip was so worn that it had lifted and separated or was lifting or separating from the rubber strip. On those stairs where the carpet was lifting and separating from the rubber strip, the security or stability of the rubber strip was affected, as once the carpet began to lift, the rubber strip which was attached to the carpet could come away or lift or pull from the stair. A person merely looking at or using the stairs would not know whether the rubber strip on any stair was properly secured.
I find that the condition of the stairs presented a hazard for someone using the stairs and the stairs were a "danger" due to the state of the premises, within the meaning of s 5(1) of the Occupiers' Liability Act.

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

There was a foreseeable risk that persons using the stairs might trip and fall because of the condition of the stairs. I find that the Strata Company knew or ought to have known of that risk and in fact had been alerted to that risk by Mr Klyne's email. The Strata Company recognised that the stairs posed a risk of injury, as evidenced by the work order dated 24 February 2005. That work order requested the maintenance company to undertake an assessment with a view to replacing the carpet, with a request to:
"Please attend to immediately for safety".
The maintenance company was requested to attend to the work order within 24 to 48 hours. Almost three weeks later Mrs Blaine had her fall.
The effect of submissions made on behalf of Mrs Blaine was that the sending of the work order, without further follow up, was an insufficient response to the risk that someone might trip and fall because of the condition of the stairs. It was submitted that the Strata Company ought to have done more to ensure that no-one would suffer any injury by reason of the condition of the stairs.
There were a number of other suggested precautions, pleaded in the particulars of breach in the statement of claim, which it was alleged the Strata Company ought to have taken. It is not necessary to set out all of the pleaded breaches. They fall within the following categories of precautions which it was alleged the Strata Company ought to have taken, but failed to undertake:
1.an inspection of the stairs;
2.the proper repair and maintenance of the stairs; and
3. the giving of a warning to proceed carefully down the stairs.

Follow up of the work order

Mr Langdon was unable to recall what happened after he sent the work order dated 24 February 2005. He did not remember receiving any reply. He could not remember whether "Franc" from West Coast Maintenance or Margaret Seebeck from the Asthma Foundation contacted him about that work order. He could not recall contacting Franc or Margaret Seebeck after sending that work order. He could not recall any discussions with either Franc or Margaret Seebeck about the re-carpeting of the stairs between the time he sent the work order and the time he was notified of Mrs Blaine's fall. He could only say that there was a distinct possibility that some discussions occurred with a representative from the Asthma Foundation. There was no evidence of any follow up or explanation as to what occurred between 24 February 2005 and 15 March 2005, the date of Mrs Blaine's fall.
It was only after Mrs Blaine's fall that Mr Langdon looked at the stairs, with Mr Kiddle and Margaret Seebeck. On 17 March 2005 he sent the follow up work order to West Coast Maintenance. When asked about the reference in that work order to "as previously discussed" Mr Langdon said he assumed that was referring to the previous work order, although it "could have" been phone conversations as well.
The instructions in the "Scope of Works" section in the two work orders dated 24 February 2005 and 17 March 2005 are instructive. The first work order instructed that Margaret (Seebeck) would need to be contacted and shown samples of commercial carpet appropriate to lay on the stairs, as she would make the decision on the carpet and authorize quoted prices. The second work order recorded that Margaret would confirm carpet choice to be laid. From this it is apparent that there had been no carpet samples presented to Margaret and no decision on the carpet between 24 February 2005 and the second work order. From this and the evidence from Mr Langdon as I have summarised at [53] and [54], I draw the inference that there was no follow up of the first work order of 24 February 2005 between when it was sent and Mrs Blaine's fall on 15 March 2005. That is an inference that is open to me to draw, particularly in the absence of any evidence from the Strata Company: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371; Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 247.
I therefore find that there was no follow up of the work order dated 24 February 2005 between the time it was sent and the date of Mrs Blaine's fall. It was not, in my view, a reasonable response on the Strata Company's part to the risk of someone tripping and falling on the stairs, merely to send the work order, then do nothing about it. The Strata Company had a positive duty to exercise reasonable care to ensure that the stairs were reasonably safe. The work order had stipulated an expected response time of 24 to 48 hours, with a request that "If these conditions can't be met, please contact the office so alternative arrangements can be made". A reasonable person in the Strata Company's position would have followed up the work order dated 24 February 2005 if no response had been received after 48 hours. Nothing, however, was done to follow this up until after Mrs Blaine's fall.
In my view the failure to follow up the work order dated 24 February 2005 establishes a failure to take reasonable care to keep the stairs reasonably safe.

Inspection

This was a commercial office building, with the stairs carrying all traffic between the ground and first floor. There was no lift or other means of access between the floors. In these circumstances and applying ordinary common law principles it is my view that the Strata Company ought to have had a system of periodic inspection, maintenance and repair of common areas, including the stairs: Drotem Pty Ltd v Manning [2000] NSWCA 320 at [44] to [52]; Ridis v Proprietors of Strata Plan 10308 (2005) 63 NSWLR 449 at 452.
The evidence given by Mr Langdon revealed that the Strata Company had no system of inspection. He said that Strata Administration Services was employed mainly to look after the Strata Company's administration and Strata Administration Services' only responsibility for maintenance of the building was confined to instructions from "the client" (the owners). In relation to the email which he received from Mr Klyne, Mr Langdon was unable to remember what he did but he explained that his normal procedure would be to on-forward that information to the owners. Mr Langdon advised that he would need authority from the owners to take action, unless there had been some explicit instructions given. When he was asked whether he did anything about inspecting or further investigating the matters raised in Mr Klyne's email, Mr Langdon gave evidence that "we don't necessarily do inspections because that would imply some form of qualification which we don't have", later stating that Strata Administration Services was not qualified to go and do property inspections. Strata Administration Services relied on the clients or their "site liaisons" (that is, property managers or agents) to bring matters to Strata Administration Services' attention, as Mr Klyne had done on this occasion, and to inform of any maintenance problems at the building. The owners, he said, were "quite capable" of instructing Strata Administration Services to employ a quantity surveyor or other specialist to inspect the building "to whatever level they desired".
In this case, of course, the Strata Company was notified of a problem with the stairs. The Strata Company led no evidence that, after Mr Klyne had sent his email, any inspection of the stairs was undertaken. Mr Langdon did not recall having retained anyone to inspect the stairs after receiving Mr Klyne's email. The evidence from each of Mr Kiddle and Mr Langdon was that the first time they had seen the stairs was after they were notified of Mrs Blaine's fall.
In my view a reasonable person in the position of the Strata Company, having received notice of a problem with the stairs by way of Mr Klyne's email, even if there was no system of inspection, would have at the very least inspected the stairs to ascertain for itself the condition of the stairs and what action was required in response. In my view, such an inspection did not require the services of a specialist or an expert. It could have been carried out by someone with appropriate general skills, such as an experienced managing agent: Ridis v Strata Plan 10308 (supra).
I find that the sending of the work order to West Coast Maintenance was not sufficient to discharge this duty of inspection. Although the work order did ask West Coast Maintenance to "please assess" it also anticipated that the carpet may need replacing. In that work order it was also recognised that there were safety issues relating to these stairs. Pending a response from West Coast Maintenance, a reasonable person in the Strata Company's position would have taken the precaution to arrange an inspection to ascertain what safety precautions were needed as an interim measure before the carpet was so assessed and then either repaired or replaced.
I find that the failure of the Strata Company to arrange someone to undertake an inspection of the stairs following Mr Klyne's email of 16 February 2005 was a failure to take reasonable care to keep the stairs reasonably safe.

Repair

Once it was alerted to a problem with the stairs, it was unreasonable for the Strata Company to have allowed the stairs to remain in the state that they were. If there was likely to be a delay until the carpet was either repaired or replaced, reasonable care required some interim measure to be undertaken to cover over any gaps between the carpet and the rubber strip on each stair where the carpet was worn or there was separation between the carpet and the rubber strip, and to check and fasten any rubber strips which were found to be not properly secured. That was not undertaken. In my view that was also a failure to take reasonable care to ensure that the stairs were reasonably safe.

Warning

The next issue is whether, pending repair or replacement of the carpet and rubber strips, a warning was required to be given to users of the stairs to proceed carefully down them.
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 at [16], [24], [54] and [55]; Commissioner of Main Roads v Jones (2005) 79 ALJR 1104 at [18], [22] to [25], [79] and [83]. On each of these two matters, no evidence was led by Mrs Blaine.

As to the first matter of the content of any warning, Counsel for Mrs Blaine relied on a passage from the judgment of McHugh J in Swain v Waverley Municipal Council(2005) 220 CLR 517 at [44] that evidence of what reasonable and appropriate precautions might be taken to avoid a risk is not required in all cases and often common knowledge or common sense was all that was required to prove a reasonably practicable alternative. There are cases in which a failure to take reasonable care for the safety of another may be inferred in the absence of expert evidence where as a matter of common sense and common knowledge it is possible to conclude 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.
Applying common knowledge and common sense I consider that the condition of the stairs was such that the Strata Company's obligation to take reasonable care required the presence of a warning sign, pending the repairs to or replacement of the carpet and rubber strips on the stairs. In my view, a sign advising "worn carpet and lifting treads – proceed with care" at the top and bottom of each flight of stairs in the building was an inexpensive precaution which ought to have been taken, but was not.
On the second matter of what Mrs Blaine 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. I have already observed that Mrs Blaine impressed me as a careful and conscientious person. I consider that had a warning sign been placed at the top and bottom of each flight of stairs, she would in all likelihood have taken heed of it. However, I am not satisfied on the balance of probabilities that such a warning would have caused Mrs Blaine to have proceeded down the stairs any differently. There was nothing in her evidence to suggest that she did not proceed down the steps with care, or was not keeping a proper lookout. This is a matter which I will address further when discussing the issue of contributory negligence.

Causation: Did the condition of the stairs in fact cause Mrs Blaine to trip and fall?

The question of causation is governed by the Civil Liability Act: Department of Housing and Works v Smith [No 2] (supra) per Buss JA at [91]. Section 5D of the Civil Liability Act requires that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Proof of causation as set out in the Civil Liability Act s 5C involves two inquiries. The first is whether the fault was a necessary condition of the occurrence of the harm (factual causation). The second is whether it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
Under the Civil Liability Act the test for factual causation is the "but for" test. It must be shown that it is more probable that not that, but for the negligence of the defendant, the plaintiff's injury or harm would not have occurred: Adeels Palace Pty Ltd v Bou Najem (supra) at [45], [53] – [56]; Department of Housing and Works v Smith (No 2) per Buss JA at [92] to [94]. In relation to the second inquiry as to the scope of liability, the principle in the Civil Liability Act embodies common law policy considerations: Ruddock v Taylor (2003) 58 NSWLR 269 at [89]; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWSCA 246 at [29] and [70]; Adeels Palace Pty Ltd v Bou Najem at [51] and [52].
The issue raised by the Strata Company is whether factual causation has been proved. There was no submission that if factual causation is established it would not be appropriate to extend the Strata Company's liability to the harm so caused.
The crucial issue of causation is whether Mrs Blaine has established on the balance of probabilities that her fall was caused by the Strata Company's negligence in failing to make the stairs safe. I have found, at [23] above, that Mrs Blaine fell because the front of her right sandal became stuck or caught on something on the stairs. There is no direct evidence as to how her sandal became so caught. The submissions of counsel for Mrs Blaine were to the effect that an inference could be drawn that the cause of Mrs Blaine's fall and subsequent injuries was due to the condition of the stairs, which condition was a result of the negligence or fault of the Strata Company. Mrs Blaine is therefore seeking to establish the causal connection by inference drawn from circumstantial evidence.
A plaintiff who relies on circumstantial evidence to prove causation must show that the circumstances raise the more probable inference in favour of what is alleged: Coastwide Fabrication &Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [60]; Jackson v Lithgow City Council [2008] NSWCA 312 at [9] to [12]; Flounders v Millar [2007] NSWCA 238 at [4] to [35]. It will not be sufficient if the circumstances give rise to conflicting inferences of an equal degree of probability or plausibility. Inference must be distinguished from conjecture or speculation. A possibility or conjecture that the plaintiff's harm was caused by the defendant's negligence will be insufficient: Coastwide Fabrication & Erection Pty Ltd v Honeysett (supra) at [61] to [63]; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd (supra) at [61] to [64] and [70].
The process of inference can, however, involve an intuitive element that is not susceptible to detailed explication: Coastwide Fabrication & Erection Pty Ltd v Honeysett at [64]. It may not be necessary to determine precisely how the plaintiff came to be injured in order to determine whether there is a causal connection between the defendant's breach and the plaintiff's injuries.Breach of duty coupled with an accident of the kind that might thereby be caused may be enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of duty. The inference of causation may be drawn if, on the evidence, there is no acceptable alternative inference: Betts v Whittingslowe(1945) 71 CLR 637 at 649.
The Strata Company submitted that it is highly improbable that the condition of the stairs was the cause of Mrs Blaine's fall, as it was not possible for the front of her sandal to have become caught by or on the rubber strip or between the rubber strip and the surface of the stair. The Strata Company relied on the evidence of the dimensions of the stair and the rubber strip, the size of Mrs Blaine's sandal and photographs.
It was accepted that the depth of each stair was 27 centimetres. The width of the rubber strip was approximately 3 inches, which is 7.62 centimetres. The rise of each stair was 18.4 centimetres.
One of the photographs taken by Mr Kiddle and Mr Langdon at the time of their inspection, Exhibit 1 photograph 5, shows a woman's foot wearing an open toed shoe, pointing straight forward, that is at right angles to the edge of the stair. In the photograph the heel of the women's shoe is close to the riser of the stair behind her. The front of her shoe rests on top of the rubber strip on the stair.
On the basis of this evidence the Strata Company submitted that having regard to the size of Mrs Blaine's foot and the size of the step, the distance between the back of the step and the front of the rubber strip was such that in a "normal" descent of the stairs it is highly improbable that the front of the Mrs Blaine's sandal could have been caught between the back of the rubber strip and the carpet. In the "normal" course of descending the stairs the front of Mrs Blaine's sandal would have come into contact with the front of the stair, on top of the rubber strip. It would have been extremely difficult for her to have placed her foot so that the front of her sandal went behind that rubber strip. Her foot would have had to have been at an "extreme angle" for that to have occurred.
This submission from the Strata Company assumes that a person's foot would be placed as demonstrated in photograph 5 of Exhibit 1, and that would be the "normal" way in which someone would proceed down the stairs.
There was no evidence as to what is the "normal" way of going down stairs. Using common sense and experience I do not consider that a person going down stairs would always place his or her foot on stairs in the way that has been shown in photograph 5. All people are different and how a given individual goes down a set of stairs may differ according to many variables. The way a person places his or her foot on stairs will depend on the nature of the stairs, the type of shoe being worn (and in the case of a woman wearing heels, the size of the heel), whether the person is carrying something, how quickly he or she is going down the stairs, whether that person is holding on to the hand rail and how the person is holding on to the hand rail.
The Strata Company put forward an alternative competing cause for Mrs Blaine's fall. That alternative competing cause was that she tripped because she left her foot on that stair rather than lifting it up and taking it off. The suggestion made by Counsel for the Strata Company was that she had "left her foot on the step, a non-slip part of the step, too long and that has caused her to trip". It was submitted that simply by leaving her foot there and not lifting it to go down the stairs could cause the front of her foot to be pulled out of the two front straps of her sandal. The sandal did not have to be stuck or caught by the rubber strip for that to happen.
This alternative cause put by the Strata Company, as I have already observed, was not pleaded by the Strata Company. It was also not put to Mrs Blaine in cross‑examination that she had not lifted her right foot when descending the stairs, but had left it on the stairs.
I consider upon the whole of the evidence and after considering the competing inferences put to me by the parties, that it is more probable than not that the mechanism for Mrs Blaine's fall was that the front of her sandal became caught because of the condition of the stairs, rather than the alternative cause as put by the Strata Company. I consider it is improbable that leaving her foot on the step, as was suggested, would be sufficient to cause Mrs Blaine's foot to be pulled out of the two front straps of her sandal. As I have found at [23], from Mrs Blaine's description and demonstration of how her foot came out, it did so because her sandal was caught. I find it more probable than not that the front of her sandal became caught by the rubber strip, due to the condition of the stairs.
I am satisfied on the balance of probabilities that Mrs Blaine's fall and subsequent injuries were caused by the Strata Company's negligence. Applying the "but for" test, pursuant to s 5C(1)(a) of the Civil Liability Act, but for the Strata Company's fault, Mrs Blaine's fall would not have occurred.

Contributory negligence

The issue of contributory negligence is governed by the Civil Liability Act s 5K. This provides that for the purpose of determining contributory negligence the standard of care required is that of a reasonable person in the position of that person (the plaintiff), and the matter is to be determined on the basis of what the plaintiff knew or ought to have known at the time.
Mrs Blaine's evidence, which I accept, is that she did not know there was anything wrong with the stairs. On her first day at work at the Taxation Institute, the lady she was working for said when she came up the stairs that she thought they were quite steep. Apart from that, there was no suggestion to her that there was anything wrong with the stairs. Mrs Blaine stated in cross‑examination that she had gone down the stairs about a dozen times and that she did not think there was anything extraordinary about them.
She did not know there was any problem with the stairs but, on the evidence, she could not have been expected to know that there was a problem. As I have discussed at [45] and [47], the fact that a rubber strip was not properly secured is not something which could be ascertained simply by looking at the stairs.
The Strata Company has alleged that Mrs Blaine failed to keep a proper look out as she descended the stairs. There was nothing in the evidence given by Mrs Blaine which would suggest that she was not careful and did not keep a proper lookout as she was going down the stairs immediately before her fall.
I find that there was no contributory negligence on the part of Mrs Blaine.

Findings on liability

The condition of the stairs as I have found at [47] and [48] was a "danger" due to the state of the premises, within the meaning of s 5(1) of the Occupiers' Liability Act. There was a foreseeable risk that persons using the stairs might trip and fall because of the condition of the stairs. That was a risk of which the Strata Company knew or ought to have known, having regard to the facts I have set out in [25] to [29] and my findings at [49].
Applying the factors set out in the Occupiers' Liability Act s 5(4), I further find that:
(a)There was a real likelihood of injury arising from the condition of the stairs and the injury could be serious, depending on the circumstances and where on the stairs a person might trip and fall. This was a steep set of stairs and a fall from at or near the top of the stairs was likely to produce a serious injury. The likelihood and gravity of injury was in my view such that it called for an immediate response, without delay, from the Strata Company;
(b)The circumstances of the entry onto the premises was that Mrs Blaine was working for one of the tenants of the building. She was, therefore, one of the class of people whom the Strata Company knew or ought to have known would be using the stairs;
(c)The building was a two storey office building, and the stairs were the only means of access between the ground and first floor. The commercial nature of the premises was such that it called for the stairs to be properly upkept and maintained, particularly since there was no other access between the ground and first floor and given the steepness and number of stairs;
(d)There is no issue that the Strata Company knew that the premises were being used as offices and both office workers and others visiting the premises were using the stairs each day;
(e)Mrs Blaine was then aged 58, and healthy, so that the exercise of ordinary care by the Strata Company was sufficient to protect her (in other words, there was nothing about Mrs Blaine which meant she was incapable of taking reasonable care for her own safety, so as to make the exercise of ordinary care insufficient to protect her);
(f)For the reasons I have discussed at [88] and [89] I consider that it could not be expected that Mrs Blaine, on only her second day working in the building, ought to have appreciated the danger presented by the stairs; and
(g)The burden on the Strata Company of eliminating the danger or protecting Mrs Blaine from the danger presented by the stairs was far less than the risk of the danger to her. The evidence of the work order of 24 February issued before Mrs Blaine's fall, requesting urgent attention to the stairs for safety reasons, is relevant to this issue. There was no evidence led that the cost of attending to the stairs was an expense which the Strata Company could not afford. The Strata Company ought to have taken, but failed to take the following precautions:
(i)Follow up the work order dated 24 February 2005;
(ii)Arrange an inspection of the stairs following Mr Klyne's email of 16 February 2005; and
(iii)Undertake interim repairs to cover any areas of carpet where it was worn close to the rubber strip, particularly where there were signs that the carpet was beginning to lift or separate or had already separated from the rubber strip, and check and fasten all rubber strips which were not properly secured.
Applying the factors set out in s 5B(1) and (2) of the Civil Liability Act, I find that:
(a) It was probable that the harm would occur if the precautions I have outlined I have outlined in [93] (g)(i), (ii) and (iii) were not taken;
(b)The harm which was likely to result was likely to be serious for the reasons I have discussed in [93] (a) and (c);
(c)There was no evidence that the precautions would have involved any unreasonable expenditure on the Strata Company's part, or that the burden of taking precautions outweighed the risk of harm;
(d)The social utility of the stairs was significant. As I have already observed, this was a tenanted commercial office building and the stairs were the only means of access between the ground and first floor. There was a need to ensure that the stairs were properly up‑kept and maintained, and were as safe as reasonable care could make them.
Accordingly pursuant to s 5B(1) of the Civil Liability Act, I find that:
1.There was a foreseeable risk that persons using the stairs might trip and fall because of the condition of the stairs. That was a risk of which the Strata Company knew or ought to have known, as I have found at [92].
2.The risk of harm was not insignificant.
3.In the circumstances a reasonable person in the Strata Company's position would have taken the precautions I have outlined in [93] (g)(i), (ii) and (iii).
I therefore find that the Strata Company breached its duty of care to Mrs Blaine.
For the reasons I have discussed at [74] to [86] I find that the Strata Company's breach of its duty of care was the cause of Mrs Blaine's fall, or as set out in s 5C of the Civil Liability Act, the fault of the Strata Company caused the particular harm suffered by Mrs Blaine.
I find, therefore, that the Strata Company is liable to Mrs Blaine for damages suffered by her as a result of her fall.

Quantum

As a result of her fall down the stairs, Mrs Blaine suffered injuries to her head, left shoulder and back (lumbar spine). Causation of these injuries is not disputed by the Strata Company. The main issue in relation to quantum is the extent to which Mrs Blaine's injuries have affected her capacity to work.
It is necessary, therefore to review each of these injuries and the evidence of the medical experts given at trial. Much of that evidence is contained in medical reports which were tendered at trial, with only a few medical practitioners required to attend trial to give oral evidence.

The head injury

Both when in hospital and after her discharge from hospital, Mrs Blaine suffered positional vertigo, dizziness and headaches. Her general practitioner, Dr Chris Jacklyn, referred her to the neurosurgeon, Professor Bryant Stokes.
All other specialists deferred to Professor Stokes for his opinion in relation to her head injury. Professor Stokes also reviewed Mrs Blaine's lumbar spine. He produced a number of reports and gave evidence at trial. He was not cross‑examined and I accept his evidence.
Professor Stokes first saw Mrs Blaine on 19 May 2005. On examination he found she presented her history well and found no abnormalities in her reflexes and other functions. His view was that she was recovering from a significant degree of cerebral concussion. He subsequently arranged a CT scan and EEG, both of which were normal.
At a review on 3 August 2005, Mrs Blaine reported to Professor Stokes that generally when she was doing little she was comfortable, but her dizziness increased the more active she became. Professor Stokes stated in his report dated 3 August 2005 that he thought it "will be many months before the total vertiginous symptoms disappear".
At the request of Mrs Blaine's employer's workers' compensation insurer, CGU, Professor Stokes reviewed Mrs Blaine again on 17 August 2005 and reported to CGU on the same date. He confirmed a diagnosis of post traumatic vertigo. He also noted a significant left shoulder injury, deferring to the orthopaedic surgeon concerning that. He advised that the prognosis for her head injury was good, but that she had still not fully recovered from that injury. Mrs Blaine was still suffering from minor degrees of dizziness and forgetfulness. He advised that she did not need further treatment for her head injury and he believed she would fully recover in the next three months.

For the period after 27 November 2007, Mrs Blaine has suffered a slight reduction in her earning capacity as I have found at [163] and [164]. I will make a global allowance for loss of earning capacity after 27 November 2007.
I have calculated and assessed Mrs Blaine's past loss of earning capacity up to the date of judgment at a total of $81,901, based on an incapacity to work up to 27 November 2007 and a significant retained earning capacity after that date. Details of my calculations appear in the Schedule to these reasons. In making these calculations I have accepted the claimed gross weekly wage of $492 from 15 March 2005 until 27 November 2007. I have, however, made adjustments to the net weekly wage to reflect the applicable taxation rate, according to the Australian Tax Office taxation tables, for a gross weekly amount of $492 in each financial year.
No claim has been made for past loss of superannuation and I make no allowance for it.
I will allow interest on the past loss of earnings. Interest on $81,901 at 3 per cent for 5 years and 11 weeks (5.2 years) is $12,776. The total I allow for past loss of earnings, including interest, is therefore $94,677.

Indemnity claimed for workers' compensation payments received by Mrs Blaine

Mrs Blaine has sought an "indemnity" from the Strata Company for the total gross weekly workers' compensation payments she received between 15 March 2005 and 27 November 2007, a total of $67,218.85. (The workers' compensation payments made are set out in Exhibit 5).
Mrs Blaine is not entitled to any indemnity for workers' compensation payments, having regard to the provisions of s 92 and s 93 of the Workers' Compensation Act. Under s 93(1)(a) a worker can take common law action against a defendant for an injury, while making no allegation of common law liability against his or her employer. Any judgment against that defendant in favour of the injured worker must be for the full amount of damages, without regard to the compensation paid to the worker: Hi-tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342 at [6] and [7]; EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998 per Kennedy J at 8–9.
The defendant is bound then to pay to the employer, as a first charge against the judgment pursuant to s 92(c), any compensation or expenses paid by the employer: ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235 at 242, 245; Vanguard Press Pty Ltd v Baxter (1995) 14 SR (WA) 190 at 194. There is no unfairness to the worker (in this case, Mrs Blaine) in the employer receiving payment of that charge, before the worker receives any judgment monies, since the legislative intent behind s 92 is to defeat a double recovery by a worker. A worker who is injured in a work related accident may recover workers' compensation or common law damages, but not both: EMS Holdings Pty Ltd v International Shipyards Pty Ltd (supra).

Fox v Wood damages

Mrs Blaine's employer will receive from the judgment, pursuant to s 92(c) of the Workers' Compensation Act, the gross amount of workers' compensation payments it has paid, when Ms Blaine has had the benefit of only the net amount after tax. Pursuant to the decision in Fox v Wood (1981) 148 CLR 438, Mrs Blaine is entitled to damages representing the additional loss occasioned by her having to repay the gross amount, so she ought to be reimbursed for the tax payable on the weekly worker's compensation payments she received.
I calculate Mrs Blaine's Fox v Wood (supra) component to be $9,979. Details of my calculations are set out in Sch 2 to these reasons.

Future loss of earning capacity

Mrs Blaine has claimed future loss of earning capacity based on a net weekly income of $603.48, which is the net amount Mrs Blaine earned while working full‑time at the call centre.
Taking into account the findings I have already made in relation to Ms Blaine's earning capacity, I make a global allowance for future loss of future earning capacity of $7,500.

Special damages

Part of the special damages claimed by Mrs Blaine have been agreed at $30,171.50, which represents the amount of medical, hospital and associated expenses paid by her employer's workers' compensation insurer, CGU.
Mrs Blaine has sought some additional amounts relating to the costs of physiotherapy she has undergone since she ceased receiving workers' compensation. The Strata Company opposed this and submitted there is no medical evidence that she required ongoing physiotherapy.
On my review of the medical reports there is support for physiotherapy as treatment for Mrs Blaine's lumbar spine problems. In his report of 9 August 2007 Mr Hill responded to a question about the further medical treatment that Mrs Blaine would need for her lumbar spine, saying "she may benefit from two or three sessions of physiotherapy for any exacerbation of her lumbar spine condition such as she is experiencing at present". In his report of 15 January 2010 Mr Hill observed that "Apart from an occasional helpful visit to the physiotherapist for exacerbation of her back symptoms", she was having no regular treatment. Mr Bath in his report of 6 January 2010 was asked to express his opinion on the nature and appropriateness of any current treatment Mrs Blaine was receiving and stated:
"Current treatment involves Ms Blaine occasionally attending a physiotherapist when her back symptoms flare and this would seem appropriate."
I am satisfied on this and other medical evidence as to the symptoms from which Mrs Blaine has suffered and continues to suffer in her lumbar spine, that the need for occasional physiotherapy is an accident related need. Accordingly I allow Mrs Blaine's claim for additional physiotherapy costs. As set out in the Plaintiff's Schedule of Special Damages under the headings "Medibank Private" and "Plaintiff's Out of Pocket Expenses", these total $990.75.
The total sum I allow for special damages is therefore $31,162.25. I allow interest on that amount in the sum of $4,861.31 (5.2 years at 3 per cent). The total for this head of damage is therefore $36,023.56, which I round up to $36,024.

Future medical expenses

Mrs Blaine has claimed a global amount of $5,000 for future medical expenses, for visits to her general practitioner, physiotherapy and medication.
There was evidence regarding the medication which Mrs Blaine took, but no evidence was led concerning the costs of that medication. It is apparent from her evidence that she took medication infrequently. Similarly any visits to her general practitioner are infrequent. Physiotherapy is required only occasionally if her back symptoms are exacerbated.
It is not possible to arithmetically calculate an appropriate allowance for this head of damage. I therefore allow a global amount of $2,500 for future medical expenses relating to general practitioner and physiotherapy visits and the cost of medication.

General damages (non-pecuniary loss)

Mrs Blaine has recovered from the majority of the injuries she sustained in the fall. Nevertheless they were painful and disabling to her for some time, particularly in the months following the fall, including the initial time she spent in hospital.
Her head injuries led to dizziness, headaches and associated symptoms which took almost 12 months to resolve. She has been left with the risk, although remote, of developing delayed epilepsy. That risk will remain for the next 10 years.
Her shoulder injury, while initially apparently minor, developed into a painful "frozen" shoulder or adhesive capsulitis. She required surgery on her shoulder in January 2007, enduring several months of recovery after that surgery. She has been left with ongoing symptoms in her left shoulder, although they are mild. Mrs Blaine gave evidence that her shoulder does not trouble her unless she has to lift something too heavy. She is still unable to lift any weight or have any weight resting on her shoulder and her left arm is weaker. She also experiences pain in her shoulder in colder weather, as well as pain if she rests on her shoulder or rolls on it.
Mrs Blaine described the symptoms she suffers from as a result of the injury to her lumbar spine as her worst problem, with pain in the middle to lower back which never seems to get better. She said her back was sore virtually every day when she woke up, but she walked every morning and after that walk and a few stretching exercises it was "bearable".
As a result of the residual problems with her back and shoulder, Mrs Blaine said she no longer does any heavy housework. Her husband does that. He also does the shopping because she does not attempt to carry any heavy shopping bags. She avoids anything that involves any lifting or sitting for long periods. She gave evidence that she was restricted in many things around the household and there were some activities, including gardening, that she did not do any more.
In these circumstances I consider an appropriate award for general damages for Mrs Blaine's injuries to be $50,000.
Section 9(3) of the Civil Liability Act applies to this award of general damages and restricts the amount which I can award. Section 9(3) provides that if the amount of non-pecuniary loss is assessed to be more than Amount C but less than the sum of Amount A and 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 the amount calculated as follows:
Amount A – (Amount assessed – Amount C).
Amount A is presently $16,500 and Amount C is $49,500. The sum of these amounts is $66,000. The $50,000 which I consider the appropriate award for general damages is more than Amount C but less than the sum of the two Amounts A and C. The calculation at the end of s 9(3) produces the following amount by which I must reduce the award of $50,000:
$16,500 - ($50,000 - $49,500) = $16,000
Accordingly, Mrs Blaine's general damages as allowed under s 9(3) of the Civil Liability Act will be $34,000.

Summary of damages

I assess Mrs Blaine's damages as follows:
General damages  $34,000.00
Past loss of earnings (including interest)  $94,677.00
Fox v Wood damages  $9,979.00
Future loss of earning capacity  $7,500.00
Special damages  $36,024.00
Future Medical Expenses  $ 2,500.00
TOTAL:   $184,680.00
There will be judgment for Mrs Blaine in the sum of $184,680. I will hear from the parties as to the costs orders which should be made.

SCHEDULE 1

PAST ECONOMIC LOSS CALCULATIONS

Period	Calculations	Amount
15.03.05 to 30.06.05 15 weeks	$492 - $82 tax = $410 x 15	$6,150.00
01.07.05 to 30.06.06 52 weeks	$492 - $76 tax = $416 x 52	$21,632.00
01.07.06 to 30.06.07 52 weeks	$492 - $66 tax = $426 x 52	$22,152.00
01.07.07 to 27.11.07 21 weeks	$492 - $65 tax = $427 x 21	$8,967.00
15.03.05 to 27.11.07 140 weeks	Additional global allowance for the chance that, but for her injuries, Mrs Blaine may have obtained more remunerative work or full‑time work during this period	$12,000.00
Total 15.03.05 to 27.11.07	$70,901.00
27.11.07 to 28.05.10 2.5 years (130 weeks)	Global allowance for reduced earning capacity due to restrictions on lifting and sitting for prolonged periods	$11,000.00
TOTAL		$81,901.00

SCHEDULE 2

FOX v WOOD CALCULATIONS

Period	Difference between gross and net weekly income	Amount
15.03.05 to 30.06.05 15 weeks	$82 tax x 15	$1,230.00
01.07.05 to 30.06.06 52 weeks	$76 tax x 52	$3,952.00
01.07.06 to 30.06.07 52 weeks	$66 tax x 52	$3,432.00
01.07.07 to 27.11.07 21 weeks	$65 tax x 21	$1,365.00
TOTAL		$9,979.00