Bruce v Apex Software Pty Limited trading as Lark Ellen Aged Care

[2017] NSWDC 237

District Court

New South Wales

Medium Neutral Citation:	Bruce v Apex Software Pty Limited trading as Lark Ellen Aged Care [2017] NSWDC 237
Hearing dates:	7 June 2017, 9 June 2017, 19-21 June 2017
Date of orders:	30 August 2017
Decision date:	30 August 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. The Statement of Claim is dismissed. (2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. (3) Liberty to apply on two business days’ notice to vary the costs order in (2) above. (4) Exhibits are to be returned after 28 days
Catchwords:	Torts – negligence – occupier’s liability - trip by plaintiff visitor on uneven surface outside aged care facility – scope of duty of care – whether breach of duty - extent of plaintiff’s injuries – extent of gratuitous care and whether need for commercial care
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Bartolo v Owners of Strata Plan No 10535 [2005] NSWCA 256 Bathurst City Council v Cheesman [2004] NSWCA 308 Botany Bay City Council v Latham [2013] NSWCA 363 Brodie v Singleton Shire Council (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Commissioner of Railways v Ruprecht (1979) 142 CLR 593 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 Harrington Estates (NSW) Pty Ltd v Turner [2016] NSWCA 369 Hastings Council v Giese [2003] NSWCA 178 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 Neindorf v Junkovic (2005) 222 ALR 631; [2005] HCA 75 Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190 Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 RTA v Dederer (2007) 234 CLR 330 Ryde City Council v Saleh [2004] NSWCA 219 Strong v Woolworths Ltd (2012) 246 CLR 182 Varga v Galea [2011] NSWCA 76 White v Benjamin [2015] NSWCA 75
Category:	Principal judgment
Parties:	Lorraine Bruce (Plaintiff) Apex Software Pty Limited trading as Lark Ellen Aged Care (Defendant)
Representation:	Counsel: G Hickey (Plaintiff) B Hull (Defendant)   Solicitors: Slater & Gordon (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2016/00099202

Judgment

1. This is a claim by the plaintiff, Mrs Lorraine Bruce, in negligence for damages for personal injuries sustained when the plaintiff tripped on the lip of a concrete paved surface on 15 June 2015 outside the Lark Ellen Aged Care Facility (“the Facility”) operated by the defendant.

2. The plaintiff was born in January 1945 and was accordingly 70 years of age at the time of the accident.

3. The claim is made by the plaintiff under the provisions of the Civil Liability Act 2002 (NSW) (“CLA”).

4. It is not in dispute that as a result of the accident, the plaintiff sustained the following injuries:

1. A fracture of her right elbow;

2. A fracture of her left wrist;

3. An evulsion fracture of the posterior cruciate ligament in her right knee; and

4. Lacerations to her nose and lip.

5. After her accident, the plaintiff received minor treatment by a nurse at the Facility and then drove herself home. After resting, she was taken to Sutherland Hospital on the day of the accident by one of her daughters and her husband. She was reviewed at the Sutherland Hospital and x-rays were taken.

6. It is also not in dispute that the plaintiff has suffered a massive tear of the rotator cuff tendon in her right shoulder. A question to be determined in the case is whether this was caused by the accident or was a result of a pre-existing condition.

Amended Statement of Claim

7. In her Amended Statement of Claim filed on 6 June 2016 the plaintiff pleads:

1. That the defendant operated the Lark Ellen Aged Care Facility in Sutherland in New South Wales;

2. That the plaintiff was a lawful entrant upon the Facility;

3. That on 15 June 2015 the plaintiff was visiting her father in the Facility;

4. The plaintiff left the Facility on that date and tripped and fell “on an uneven driveway surface” (paragraph 4);

5. As a result of the accident the plaintiff sustained injury; and

6. The defendant was negligent in that it failed to take precautions against a risk of harm which was “foreseeable and not insignificant”.

8. The particulars of negligence relied upon by the plaintiff in the Statement of Claim are as follows:

1. Exposed the Plaintiff to a risk of injury or damage of which it knew or ought to have known;

2. Failed to take any or any adequate precautions for the safety of the Plaintiff;

3. Failed to take any or any adequate measures to prevent injury to the Plaintiff;

4. Failed to demark the presence of the alteration in the level of the driveway surface so that persons, such as the Plaintiff, could discern same;

5. Failed to warn the Plaintiff of the alteration in the level of the driveway surface so that she might avoid tripping and falling;

6. Failed to erect a warning sign or some such other physical indicator informing persons such as the Plaintiff of the alteration in the level of the driveway surface;

7. Failed to make the alteration in the level of the driveway surface apparent in a circumstance where it might be assumed by persons such as the Plaintiff that the surface area was level;

8. Creating the illusion that the driveway surface was level due to the brick edging adjacent to the area of the Plaintiff’s fall being completely aligned to the concrete driveway;

9. Failed to heed prior complaints by the nurses at the nursing home regarding the difficulties they were having with the area in question while trying to push patients in wheelchairs on the driveway;

10. Failed to heed requests made by the maintenance manager of the premises for the driveway area to be repaired;

11. Failing to take into account that as the premises was an aged care facility and that the area in question would be traversed by older persons (most likely less mobile and with poorer eyesight) and therefor repairing the defect in a timely fashion;

12. Failing to demark the presence of the hazard with florescent paint pending repair of same.

9. In the Statement of Particulars filed on 1 April 2016 the plaintiff claims that she suffered injuries to her head, face, right knee, left wrist, right elbow, and right shoulder as well as suffering anxiety, stress and depression. A significant list of disabilities is set out including, in particular, a limited range of shoulder movement, pain with reaching and weakness of the right arm. The Statement of Particulars outlines a significant claim for past and future care. At the time of the accident the plaintiff was retired and she makes no claim for economic loss. No evidence was ultimately led indicating any depression.

Amended Defence

10. In its Amended Defence filed 20 June 2016 the defendant denies liability and says that any loss or damage to the plaintiff suffered as result of the injury was caused or contributed to by the plaintiff’s own negligence. The particulars of contributory negligence are failing to take any, or any proper, precautions for her own safety; failing to properly watch where she was walking and failing to observe and avoid the alleged uneven driveway surface. It is also pleaded that the risk of injury to the plaintiff by tripping on an uneven driveway surface was an obvious risk within Section 5F of the CLA.

Oral evidence on behalf of the plaintiff

Oral evidence of the plaintiff

11. The plaintiff gave evidence that she was born in January 1945. Accordingly, at the date of the hearing she was 72 years old. The plaintiff said she was married to her husband Ken and had three adult children, being two daughters and a son. The plaintiff gave evidence that she was currently living in a house with her husband and her adult daughter Emma in Miranda. Her daughter Emma had three children who lived with them. The plaintiff stated that she had previously lived for a long time in the suburb of Kurnell in Sydney.

12. The plaintiff gave evidence that she left school at the end of Year 3 at the age of 15 and took an apprenticeship with Akubra Hats in hat making. She remained in this position for nine years until she left her work in 1970 to have her first child. The plaintiff stated that in 1982 she got a job with A-One Filters which was an air conditioner factory and was employed fulltime in the factory for 17 years. The plaintiff indicated that she retired at the age of 55 in 1999 to look after her aging parents.

13. The plaintiff gave evidence of medical conditions which she had prior to the accident in 2015. These problems included cataract surgery performed in 2011 and problems with her right knee and right hip. The plaintiff had right knee surgery in April 2011 performed by Dr Michael Dixon, an orthopaedic surgeon. She also had a total right hip replacement performed by Dr Dixon in March 2012. The plaintiff gave evidence that after the surgery her knee and hip were good and she was not troubled by them. After her cataract surgery the plaintiff had some problems with her eyes but she gave evidence that eventually these problems disappeared although she was left with a dilated pupil in her left eye. She said she had not seen her ophthalmic surgeon since February 2012.

14. The plaintiff gave evidence that her mother died in 2005 at the age of 87 and she continued to care for her elderly father who lived with her and her husband. Her father moved in with her brother in 2013 but in September 2014 moved into the Lark Ellen Aged Care Facility where he remained until he moved to another facility in Kirrawee.

15. The plaintiff said that in 2015 she had a practice of visiting her father two or three times per week at the Facility which was about 20 to 25 minutes’ drive from her house at Kurnell. Her practice was to arrive at the Facility at about 10am to visit her father and then leave at about 12 noon when his lunch was delivered.

16. The plaintiff indicated that the Facility originally had two entrances located at the side and front but in due course the side entrance was blocked off and the plaintiff always entered and departed through the front entry door. The plaintiff stated that she parked her vehicle in various places depending on parking availability.

17. The plaintiff gave evidence in relation to her accident on 15 June 2015. The plaintiff said she drove to the Facility and parked her car in the parking lot. She then entered the Facility to see her father and remained for two hours in accordance with her usual practice. The plaintiff said that when she left the Facility she walked out the front door and turned right towards her vehicle in the parking area.

18. The plaintiff gave evidence that whilst approaching her vehicle she tripped and fell. The plaintiff indicated that she fell forwards and although she tried to stop her fall by putting her arms out she was unsuccessful and she hit the ground. The plaintiff said that “every part” of her body hit the ground including her face, arms and legs. The plaintiff indicated that she went face first into a metal grill on the ground, injuring her face.

19. The plaintiff gave evidence that she sat up and she realised that she had blood on her face but could not initially move. A man who was walking his dog stopped and assisted the plaintiff and asked her whether she wanted him to telephone for the ambulance. The plaintiff said she would be “alright”. The passer-by went into the Facility and alerted a nurse. The nurse who came out was known to the plaintiff and she took the plaintiff inside and sat her on a chair and applied a plaster to the affected areas on her face.

20. The plaintiff then went outside and saw a person who she understood to be the owner of the Facility in the vicinity. She said she had met him once before. She said to the person who she believed to be the owner “I fell” and he asked her “where”. The plaintiff showed him the location where she fell. She said she fell on the “lip thing” which was the area where she tripped.

21. The plaintiff said that the owner of the Facility bent down and looked at the location she had indicated.

22. The plaintiff stated that she got in her car and drove home and lay down on her bed for an hour. Her daughter Emma arrived home and saw the plaintiff and telephoned the plaintiff’s husband and her other daughter Renee. The daughter Renee and the plaintiff’s husband took her to Sutherland Hospital where she remained for four hours and had some x-rays. The plaintiff identified some photographs of her which became Exhibit C which she believes were taken on the day after the accident. The photographs show lacerations to the plaintiff’s nose and lip.

23. The plaintiff was then shown a bundle of photographs which became Exhibit D in the proceedings. The plaintiff marked on the second photograph in Exhibit D the place where she tripped and the metal grill which she hit with her face. The place indicated by the plaintiff where she fell was on the area outside the entrance to the Facility where inserted in the concrete paving was a row of dark brown bricks. The dark brown bricks were a feature in the concrete paving throughout the outside area of the Facility. The part marked was a lip of the concrete which was on the side closest to the metal grill. The plaintiff confirmed that the area where she marked with an “X” was “roughly” the same area as she had pointed out to the person she had identified as the owner on the day of the accident.

24. The plaintiff confirmed that shortly after the accident she attended her general practitioner, Dr Liow. She said she stopped seeing Dr Liow after she had obtained treatment from her physiotherapist when the doctors indicated that they could not do any more for the plaintiff.

25. The plaintiff confirmed that she initially took Panadol for the pain but after a few months she stopped taking the pain medication.

26. The plaintiff confirmed that she had a number of x-rays and scans taken after the accident. She also confirmed that she had been referred to a physiotherapist, a Mr Luke d’Apice, who she saw for six months until January 2016. She also confirmed that she consulted with a number of orthopaedic surgeons including Dr Dixon and Dr Sungaran.

27. The plaintiff indicated that immediately after the accident she had pain in her left wrist, right knee, right elbow and in her right arm being in the area between the shoulder and the elbow but slightly closer to the elbow. Generally the pain in the right arm was in the bicep area. The plaintiff said that she had pain in her right arm, both up to the time she first saw Mr d’Apice and after she first saw him.

28. The plaintiff was then asked questions about the progress of her complaints. The plaintiff said that she had elbow pain for about six weeks but now it did not trouble her. She said she had wrist pain for about six weeks and wore a guard but now it did not trouble her. In relation to her right knee, the plaintiff said she had an MRI about eight weeks after the accident. She gave evidence that she had continuing problems with her right knee upon getting up from a seated position and going down stairs. She said she had no problems with her right knee prior to the accident.

29. The plaintiff frankly admitted that she had gradual improvement in her right knee since the accident but for some time it had stayed the same. The plaintiff said that she did not notice her problems with her right knee much until she gets up from a seated position or goes down stairs. She said the weather did not affect her right knee. The plaintiff frankly admitted that she was not a walker and did not know her walking capacity. She said she had stairs at the front of the Kurnell house and she had trouble climbing these and had to hold the rail.

30. As at June 2015 the plaintiff stated that she had been living with her daughter Emma for about two years. Her daughter was separated and worked in her own business operating a mobile coffee van. She left for work at about 6.30am and returned at about 1.30pm. Sometimes she worked six days per week.

31. At the time of the accident, the plaintiff lived with Emma, her children and the plaintiff’s husband in a three bedroom house at Kurnell which had one bathroom, one living room and was on a big block.

32. The plaintiff said that she “did everything” in relation to domestic activity at the Kurnell house at the time of the accident. Her husband, Ken, was responsible for maintaining the yard at the Kurnell House. Prior to the accident, the plaintiff indicated that she did all the vacuuming, cooking, shopping, cleaning of the bathroom, mopping, sweeping, wiping down surfaces, dishwashing, cleaning windows, making beds, getting her grandchildren up for school and giving them breakfast, preparing lunches, and picking the children up from school.

33. The plaintiff gave evidence that her circumstances changed significantly after the accident. She said that because of her injuries she did not drive from June 2015 to January 2016. The plaintiff said that either her daughters or her husband drove her when it was necessary. In that six month period the plaintiff said that she did not do much around the house. The work around the house was completed by her daughter Emma and her husband Ken, although she did some minor things.

34. The plaintiff gave evidence that in December 2015 she, her husband, her daughter Emma and Emma’s children moved to a four bedroom house in Miranda which was her current residence. This house had two living rooms, two bathrooms, a pool, and an internal laundry.

35. After six months of recovery, the plaintiff gave evidence that the domestic work that she was able to do around the house gradually increased.

36. Now, the plaintiff was able to do more domestic tasks around the house. She dropped her grandchildren at school, particularly the youngest one. She was able to drive. She wiped the surfaces in the house, prepared lunches, prepared breakfasts and was able to do a little vacuuming. However, the plaintiff indicated that she could not do vacuuming involving stretching because of problems with her upper arm.

37. The plaintiff gave evidence that she has had no improvement in her upper arm and shoulder since the accident. She gave evidence that her shoulder troubled her daily and if she lifted the right arm up high or reached to a lower level it gave her considerable pain. She also experienced pain if she had to reach high or low for an item.

38. The plaintiff gave evidence that at night time the ache in her arm woke her up once or twice per night. She said that if she forced her arm to undertake a task at a high or low level she experienced sharp pain in her upper arm in the bicep area, slightly closer to the elbow than the shoulder. The plaintiff said that her upper arm was the most troubling aspect of her injuries since the accident.

39. The plaintiff said that she was able to undertake cooking and food preparation now. She said she had no difficulties undertaking cooking provided she did not have to reach up or down for any items. She said she was able to undertake sweeping provided she held the broom at a level below her shoulders.

40. The plaintiff said that she was not able to place wet clothes in the dryer or hang them on the line with her right arm, unless she held her right arm up with her left hand. In those circumstances usually pain was experienced in her right arm.

41. The plaintiff gave evidence that she was unable to clean the bathrooms due to the stretching required. She also had a problem getting down on her knees and stretching with her arms to clean the bathrooms.

42. In relation to cleaning windows, the plaintiff said she was unable to do this unless they were on a level which was not high. The plaintiff gave evidence that she was right hand dominant.

11. In summary, the plaintiff said that she experienced a pain whenever she undertook stretching at a high or low level with her right arm. She said that she was unable to make the beds because of her condition.

12. In relation to ironing, she did all the ironing in the house prior to the accident but was now only able to do a small amount of ironing.

13. Prior to the accident the plaintiff said that she took the following time to undertake domestic tasks:

1. Vacuuming - half an hour to three quarters of an hour three times a week;

2. Mopping – three quarters of an hour once a week;

3. Cleaning the bathroom – half an hour twice a week;

4. Laundry and hanging clothes up – half an hour seven times a week;

5. Shopping – one “big shop” for one and a half hours per week.

46. Now the plaintiff says that whenever she does the main shopping for the house her husband goes with her and he gets the items from the shelves, carries the shopping to the car and stacks it in the car. If she has to do shopping by herself involving reaching items on a higher shelf, she usually asks people to help her.

47. The plaintiff gave evidence that since she commenced driving again in about February 2016 there had been little improvement in her shoulder and knee.

48. The plaintiff gave evidence that prior to the accident she played with her three grand-daughters, particularly netball. She said that since the accident she was unable to play netball with them because she was unable to reach up with the ball. The plaintiff said she had been a netball player herself but continued to watch her grand-daughters play netball.

49. The plaintiff was asked some questions in relation to paying for the cleaning of the bathroom if she had the financial means to do so. The plaintiff agreed that her daughter Emma worked fulltime. She also agreed that her daughter Renee lived in another house but in the same area. She said her husband Ken cleaned the bathroom but did not do as good a job as she did. The plaintiff confirmed that if she had the financial means to do so she would pay for someone to clean the bathroom.

50. The plaintiff gave expanded evidence in cross-examination that she and her husband lived with her daughter Emma and her three grand-daughters who were currently aged 14, 12 and 9.

51. The plaintiff was asked questions about consulting Dr Liow in relation to problems with her right shoulder in 2004. The plaintiff denied having any recollection of telling Dr Liow in 2004 that she had difficulties raising her arm and that it had been progressively getting worse for six months. The plaintiff recalled mentioning that she had a pinched nerve in the neck. She said she did not recall a problem with her right shoulder or that it had been getting worse. The plaintiff said that she could recall Dr Liow telling her in about 2004 to raise her arm whilst under hot water in the shower and cause her fingers to “go walking” up the shower wall to assist her. The plaintiff said she had difficulties remembering what problems she had in 2004.

52. The plaintiff agreed that she had eye problems in 2010 and 2012 but did not need glasses for distance vision only for reading. She agreed that she had been referred to an ophthalmic surgeon, Professor Coroneo, particularly because of problems with glare following her cataract operations. The plaintiff denied that glare continued to be a problem and said that she only had problems with it “for a while” after the operations. The plaintiff also agreed that in April 2015 she had a problem with her left foot as she kicked a skateboard which she did not see. The plaintiff denied falling over the skateboard.

53. The plaintiff was taken to an aerial photograph of the Facility which became Exhibit 3 in the proceedings. The plaintiff agreed that the photograph showed both a car entry and a car exit to the Facility and the entrances to the Facility. She also agreed that the aerial photograph showed the bricks which were inlaid into the concrete and the grate onto which she fell on the day of the accident. The various lines of bricks could be seen at the vehicle entrance to the Facility and placed in between the concrete slabs in the carpark area. The plaintiff confirmed that in entering the vehicle entrance by foot she had to walk over the line of bricks embedded in the roadway. She also confirmed that she had to walk over lines of bricks embedded in the roadway upon parking her car to enter the Facility through the main entrance. The plaintiff said that her father moved into the Facility in September 2014 and she visited him there in the period between September 2014 and the day of the accident between two and three times per week. She agreed that she did not make any report to the Facility in relation to any irregularity in the brickwork prior to the accident. The plaintiff also confirmed that she had not noticed any irregularity in the brickwork prior to the accident as she had “never worried about it”.

54. The plaintiff was referred to paragraph 6.6 of the report of occupational therapist, Ms Jasmine Grey (Exhibit A, page 432) where it states that the plaintiff reported that prior to the accident she was quite “stiff” with “transfers”. It was suggested that she had stiffness in transferring from a seating to a standing position prior to the accident. The plaintiff said she did not recall saying this. She was also referred to paragraph 6.6 of the report where it provides that the plaintiff’s mobility “has been further restricted after the 2015 incident”. The plaintiff said that she was restricted after the accident and had no problem with her knee before the accident in relation to transfers from a seating to a standing position.

55. The plaintiff was then referred to paragraph 7.2.5 of Ms Grey’s report which stated that the plaintiff “resumed grocery shopping with her husband as had occurred prior to the accident’ (Exhibit A, page 433). The plaintiff said she was only able to do light shopping now after the accident and never did the main shopping by herself. She said her husband did not always go with her to do the main shopping prior to the accident.

56. The plaintiff was taken to paragraph 8.3.2 of Ms Grey’s report where it is stated that her daughter would continue to wash the dishes and assist with kitchen cleaning after the meal preparation when she returns home from work as she did prior to the accident. The plaintiff agreed with this. However, the plaintiff gave evidence that her daughter Emma worked between 6.30am to 1pm operating her coffee van and then when she returned home she had to clean the van for about three quarters of an hour. The plaintiff agreed that her daughter could assist after about 2pm if she wanted to.

57. The plaintiff was then asked questions about her right knee. She agreed that when she first presented to Mr d’Apice, the physiotherapist, on about 30 June 2015 that she walked with a significant limp due to right knee pain (Exhibit 1, page 61). The plaintiff agreed that she was referred to see Dr Dixon the orthopaedic surgeon and after an MRI he advised her that there was no operative procedure for her knee and she was to give it time to heal. The plaintiff agreed that Dr Dixon had given her advice after the MRI about ultimately requiring a left hip replacement but it was currently not needed.

58. In relation to her right arm, the plaintiff was taken to Mr d’Apice’s reference to her having a “muscular spasm around [her right] shoulder” (Exhibit 1, page 61). The plaintiff said the problem was more in her right arm in the bicep area slightly closer to her elbow than her shoulder. The plaintiff said that Mr d’Apice had advised that the problem was coming from the right shoulder.

59. The plaintiff agreed that in the first six months after the accident she was not able to do much at home. See also T61.22. After the first six months the plaintiff confirmed that she was gradually doing more around the home and was also able to drive after the move in house from Kurnell to Miranda. The plaintiff agreed that in October 2015 she told Mr d’Apice that she had trouble putting the clothes on the line, that mopping was difficult but she could undertake tasks in the kitchen such as washing and drying up the dishes. The plaintiff confirmed that she last saw the physiotherapist Mr d’Apice in January to February 2016 and her general practitioner Dr Liow in about January 2016, although she continued doing the advised exercises at home. These included using an elastic device on the door to pull towards her and push down to improve her shoulder. However the plaintiff said it was not helping and she realised she had to learn to live with the pain as it was not getting better. The plaintiff was taken to the report of Dr Annett dated 18 November 2015 which indicated that the plaintiff exhibited a full range of movement in the shoulder with some pain ‘particularly coming down from elevation”. Dr Annett had indicated that the plaintiff did have “a reasonable amount of evolving rotator cuff strength, given her injury”. The plaintiff said that the cortisone injection given to her by Dr Annett did not assist. She said she had pain on reaching or stretching although she had a full range of movement.

60. The plaintiff was taken to the report of Dr Annett dated 9 March 2016 which suggested that when she was last reviewed by Dr Annett in December 2015 she complained of ongoing pain in her right shoulder. The plaintiff agreed with this description. The plaintiff also agreed that after six to eight weeks after the accident she was able to prepare the breakfasts and lunches for her grandchildren, do the cooking and vacuuming as long as she did not stretch her right arm. She agreed that if she could not do a task that her daughters and her husband helped out.

61. Prior to the accident, the plaintiff confirmed that the other members of the household did nothing around the house. She agreed that after the accident she tried to do tasks around the house even if they caused her problems. She said that her husband deals with their double bed.

62. The plaintiff was then taken to her consultation with Dr Endrey-Walder at Exhibit A, page 386 where she said that her right knee had “settled”. The plaintiff said that she should have said more to Dr Endrey-Walder than she did. She said she was downplaying her difficulties and that while her knee had “settled” she did have a limp. In relation to page 7 of Dr Endrey-Walder’s report (Exhibit A, page 388), Mrs Bruce said that it was incorrect that the knee was “essentially symptom-free” as she still had difficulties with it.

63. The plaintiff was taken to page 2 of Dr Maxwell’s first report (Exhibit 1, page 2) which states that the plaintiff “does light cooking and is able to wash up. She also puts clothes in the washing machine but states she is unable to hang out the clothes.” The plaintiff agreed that this was correct and that she put clothes in the washing machine for six people. She said that either her daughter Emma or her husband put the clothes on the line because of the pain. She agreed that they assisted her on occasions prior to the accident in putting clothes on the line but that she mainly did everything.

64. The plaintiff was taken to the report of the occupational therapist, Ms Grey (Exhibit A, page 426) where it states that the plaintiff “has not been able to squat or kneel for “years” due to advancing age.” The plaintiff questioned this and said that she required a long-handled reacher referred to by Ms Grey due to her prior hip replacement. The plaintiff agreed that she was able to complete light domestic tasks when her grandchildren were at school using “pacing and resting” but said there were some tasks she could not do (Exhibit A, page 434, paragraph 8.3.1).

65. In relation to items around the house, the plaintiff confirmed:

1. She was able to vacuum a small two metre square mat in the lounge room;

2. She was able to hang some things out despite the pain. However she obtained assistance from her daughter or her husband;

3. The bathrooms were cleaned by her husband. There were two bathrooms in her daughter’s house;

4. The windows included slatted doors. These were cleaned once a month by her husband although her daughter could do it;

5. The plaintiff does ironing occasionally if she has to do it.

66. The plaintiff was then asked some questions about the events of the day of the accident. The plaintiff was taken to photograph 2 in Exhibit D where she had placed two crosses on the photograph. The plaintiff confirmed that the bottom cross on the photograph was where she had “roughly” fallen: T112.13. However, she confirmed that she could not give the precise location and it was only a rough estimation by her. The plaintiff agreed with the proposition that she did not know exactly where her foot was when she started to fall: T112.17. The plaintiff said that she stumbled, took a few steps towards the grate and then fell down: T112.40-113.7. She said she landed on the grate on her nose and face in about (she supposed) the middle of the grate: T113.21.

67. The plaintiff was then taken to the photograph which was Exhibit 2. It was put to the plaintiff that she could not say where along the line of bricks going towards the bush in the photograph she had fallen. The plaintiff believed that she had fallen in the area about two inches on the photograph below the line to the left but conceded that she could not tell exactly where she had fallen: T114.15. In answer to the suggestion that the plaintiff could not say precisely where she began to fall the plaintiff said she could “roughly”: T115.25. The plaintiff confirmed that she had come out of the main entry to the Facility and then walked towards her car on the area shown in Exhibit 2. The plaintiff confirmed that she could not say precisely where it was where she had fallen, other than to indicate the general area: T116.30. In answer to the question that the plaintiff did not see anything that caused her to fall, the plaintiff said that her foot “got caught”: T120.26. The plaintiff said that she felt her shoe “hit that lip thing”: T120.45.

68. It was put to the plaintiff that when she commenced to fall she could have fallen for any number of reasons: T122.19. The plaintiff disputed that and said that she knew where she fell and that her foot had got caught in the “lip thing” and she tripped over it: T122.25-.34. The plaintiff would not agree that she was making an assumption that that was what must have made her fall as she said “the lip thing” was the only thing there on which she could fall: T123.21-.34.

69. It was put to the plaintiff that there were many areas over which she had walked between September 2014 and the day of the accident which had similar depressions in the brick work. The plaintiff said that she would not have noticed other areas: T124.31; 125.7. The plaintiff conceded that as she was walking out towards her car she could have been looking for her keys in her handbag or looking for where her car was parked: T125.13.

70. In re-examination the plaintiff confirmed that where she had placed the lower cross in the second photograph in Exhibit D was an estimate as to where she had fallen. She agreed it was a “rough estimate” of where she had tripped: T125.39-126.2.

71. The plaintiff appeared to me to be an honest witness and I generally accept her evidence.

Oral evidence of Mr Ken Bruce

72. Mr Bruce, the plaintiff’s husband, gave evidence that he was 73 years of age. He said he became aware of the accident when his daughter Emma telephoned him and he went straight home. He then accompanied his wife and his daughter Renee to Sutherland Hospital. Mr Bruce confirmed that his wife had told him that she had tripped outside the door to the Facility. Mr Bruce said that he went to the Facility on a number of occasions after the accident and took photographs which became Exhibits E to L in the proceedings. The notations on the photographs which Mr Bruce obtained from his records on his computer screen (as they were digital photographs) showed that the photographs were taken by him on 19 June 2015, 29 June 2015 and 20 August 2015.

73. Mr Bruce gave evidence that on the first occasion he returned to the Facility on 19 June 2015 after the accident he spoke to his nephew Mr Greg Bruce who is and was at that time in charge of maintenance at the Facility and had been working there for between 25 and 30 years. Mr Bruce said that his nephew knew about the accident and he had a conversation with him in the car park. Mr Bruce said that Greg Bruce had said to him words to the effect that he had put a requisition in to get all the areas fixed “where the indents were in the concrete” about 12 months ago and nothing had been done about it: T131.42-132.7. Mr Bruce said that Greg Bruce had been painting the front entrance of the Facility at the time and he came out and he (Ken Bruce) showed Greg Bruce the area where the plaintiff had tripped.

74. Mr Bruce stated that he returned to the Facility and took more photographs on 29 June 2015 and the area appeared to have been repaired after the first photographs were taken. Mr Bruce said that Greg Bruce was out the front of the Facility and showed him where it had been repaired. Greg Bruce had said to him that he was not happy with the job and he asked the people who had done it to re-do it: T134.15.

75. Mr Bruce gave evidence that he had taken further photographs on 20 August 2015 and had seen Greg Bruce again. He said that Greg Bruce had been very critical of his employer and had said words to the effect: “Don’t worry about me. I just want to get out of the place. Just do what you’re doing”: T135.9. Mr Bruce, the husband of the plaintiff, confirmed that on another occasion he had spoken to his nephew that Greg Bruce had informed him that he had misunderstood what he was saying and that it was at the other end of the carpark that the requisition was lodged to do the work: T141.26.

76. Mr Bruce was then asked questions about the division of domestic duties in the household. He confirmed that prior to the accident he was responsible for domestic duties outside and Mrs Bruce for domestic duties inside the house. Mr Bruce confirmed that he completed no housework prior to the accident. He also confirmed that Mrs Bruce looked after the grandchildren, the housework and did all the shopping. After the accident, Mr Bruce said that Mrs Bruce was very restricted as to the things she can do domestically around the house: T143.26. As a result, Mr Bruce has been required to “step up” around the house to perform more domestic duties: T143.39.

77. Mr Bruce then gave evidence in relation to the domestic duties which he now performs around the house as follows:

1. In relation to vacuuming, the house has a timber floor. The lounge room has a carpet which the plaintiff can vacuum herself;

2. In relation to the mopping of the timber floors, Mr Bruce undertakes all the mopping: T144.4. Mr Bruce gave evidence that he did dry mopping around the house twice per week for about an hour on each occasion: T144.6-.27. In relation to the kitchen, Mr Bruce gave evidence that he did mopping around the kitchen about three to four times per week for about 10 minutes on each occasion in the servery area: T144.29-.40. This amounts to about half an hour per week of mopping in the kitchen;

3. In relation to laundry, the plaintiff herself put the clothes in for washing but she could not hang sheets or heavier items on the line to dry. Mr Bruce gave evidence that he provided a small amount of assistance to the plaintiff in relation to hanging the sheets on the line and bringing them in. Mr Bruce said that this took about one half to three quarters of an hour of his time per week: T144.42-T145.38;

4. In relation to shopping, Mr Bruce gave evidence that he went with the plaintiff to undertake the main shopping for the week. He assisted her with reaching for items which she could not reach and in carrying the bags. He gave evidence that the plaintiff also did a small shop once or twice a week. Mr Bruce said that he spent two hours in accompanying the plaintiff to undertake the shopping: T145.40-T146.23;

1. Mr Bruce was then asked questions in relation to reaching in higher cupboards which he undertook on behalf of the plaintiff which she could no longer do. Mr Bruce said that he estimated that he spent about an hour per day picking things which the plaintiff could not get to herself: T148.37. Mr Bruce said that he did not receive requests for assistance in relation to these matters from the plaintiff before the accident: T148.41;

2. Mr Bruce gave evidence in relation to cleaning the slats on the windows. He said he undertook this task once per week for about one hour: T149.4. Mr Bruce also gave evidence that he did a thorough clean of the slats on the windows including wiping them down as opposed to dusting once every six to eight weeks for about three quarters of a day: T149.5;

3. In relation to the bathrooms, Mr Bruce gave evidence that he cleaned both bathrooms in the house including the bathroom used by the plaintiff and this took him about one hour a week to clean: T149.33. Mr Bruce gave evidence that he cleaned his daughter Emma’s bathroom because of her long working hours and her commitments with her children’s sport.

78. Mr Bruce was asked questions in relation to his conversations with his nephew Mr Greg Bruce who worked at the Facility.

79. It was put to Mr Bruce that in his first conversation with Greg Bruce what Greg Bruce told him was that the only problem that they had ever had in the car park at the Facility was “down the other end” near the driveway entrance. Mr Bruce said that this is what he was told by Greg Bruce to be what the owner of the Facility had said: T150.41. Mr Bruce said that he did not recall Greg Bruce saying to him that this was the only problem which they had had in the car park prior to the accident.

80. Mr Bruce also confirmed the conversation with Greg Bruce in which Greg Bruce had said to him that he must have misunderstood him in relation to the lodgment of a repair work requisition for the area near the entrance to the Facility as opposed to the car park entrance. Mr Bruce in effect disputed that misunderstanding: T151.11-T151.39. Mr Bruce’s evidence seemed to be that on the first occasion on which they had spoken, Greg Bruce said that a requisition had been put in for work in relation to the subsidence of the area near the entrance to the building as opposed to the car park entrance: T151.37.

81. Mr Bruce was then asked about whether he was aware of the plaintiff having problems with her right shoulder in 2004. Initially Mr Bruce said that the plaintiff was having problems with her left shoulder in 2004 (T152.27) and then he gave evidence that he was aware that the plaintiff had a problem with her right shoulder in 2004 (T153.14) but the problem was not to the extent it was today: T153.7. Mr Bruce gave evidence that he was aware that she did exercises in the shower under the hot water for her shoulder in 2004 as well as exercises for her shoulder after the accident: T153.18.

82. Mr Bruce was then asked questions in relation to the domestic duties before the accident. He gave evidence that he mowed the lawns and maintained the gardens (T153.42) but he did not do anything inside the house: T154.21. Whilst Mr Bruce conceded that the plaintiff had had a total right hip replacement and an arthroscopy to her right knee, he did not believe she had any real difficulty getting in and out of chairs before the accident. He conceded that there was a “little bit” of difficulty but not to the extent which the plaintiff had today: T155.4.

83. Prior to the accident Mr Bruce said that the plaintiff did the shopping a lot of the time alone but when he did accompany her he assisted her: T155.30.

84. In relation to cleaning and the preparation of meals before the accident, Mr Bruce conceded that all in the house assisted but not to the extent they did today. Mr Bruce said that although he used to help around the house before the accident he did not do “a lot”: T156.30. In essence, Mr Bruce said that he did a lot more of the domestic work around the house now than he did prior to the accident: T156.27-.39.

85. Mr Bruce gave evidence that he was healthy and he was quite capable of continuing to do the outside work at the house: T157.11.

86. In relation to the capacity of the plaintiff for cleaning, Mr Bruce said that the plaintiff occasionally picks up a towel in the bathroom but does not do any cleaning in the bathroom: T158.7. He agreed that the plaintiff would be able to reach the basin and toilet to wipe over them using her left hand but she could not get down low or high into the cupboards: T158.17.

87. Although Mr Bruce emphasised the fact that his daughter Emma worked hard and had a lot of family responsibilities, he conceded that if he did not give her assistance around the house she could do it for herself: T160.23. He stated, however, that his daughter Emma had commitments with her mobile coffee machine also on the weekends.

88. Mr Bruce impressed me as an honest witness who gave his evidence truthfully and made concessions where appropriate. I generally accept his evidence.

Evidence of Emma Johnston

89. Emma Johnston is the youngest daughter of Mr and Mrs Bruce and is the owner of the house where they live with Emma Johnston’s three daughters. Ms Johnston gave evidence that her parents had lived with her since 2013 when her marriage had broken down. Ms Johnston confirmed that she worked fulltime in her own business which was a mobile coffee business: T165.32. Ms Johnston gave evidence that she started very early in the morning rising usually at 4am and on weekends at 6am and did not return home until about 2pm after which she often drove her children around to sporting commitments. These commitments were for up to 11 months of the year: T168.5-.12. On the weekend, Ms Johnston had commitments with her business at sporting events, fetes and markets. She gave evidence that she had to work and had no choice because of her financial position.

90. Prior to the accident, Ms Johnston gave evidence that the plaintiff “pretty much ran my house for me”: T168.41. The plaintiff did all domestic duties including looking after the children. These domestic duties included washing, laundry, cooking and shopping. Ms Johnston described the change in terms of her mother since the accident as being a “100%” change: T169.21. Ms Johnston gave evidence that her father helped out around the house including cleaning the bathrooms: T170.16. Ms Johnston gave evidence that her father had been in poor health over the last few years including with prostate cancer, pneumonia and a growth on his liver: T170.34. She said he had slowed down: T170.46.

91. Ms Johnston gave evidence that there was no prospect of her work circumstances changing in the short term as she had three children to support and she had no choice but to work. She said that she felt bad putting a lot on her parents but gave evidence that she had no choice but to work how she worked.

92. Ms Johnston was asked questions in cross-examination about her mother’s health prior to the accident. She gave evidence that she was not aware of her mother having problems with her right shoulder in 2004 or having an arthroscopy to her right knee but was aware that her mother had a right hip replacement. She also said that she was not aware of her mother being unable to squat or kneel for years prior to the accident.

93. Ms Johnston confirmed that she was in good health (T172.29) and assisted around the house and was capable of cleaning her own house: T172.43. Ms Johnston conceded that she was now obtaining some financial support from her husband but said it would be difficult for her to reduce her hours. Ms Johnston confirmed that as her parents aged that her sister and her would be there to assist them: T174.18-.27.

94. Ms Johnston impressed the Court as an honest and truthful witness who readily made concessions where she had no knowledge of a matter. The significance of her evidence was the assistance which the plaintiff gave her before the accident and the limitations on the plaintiff since the accident. I accept her evidence.

Evidence of Renee Clark

95. Ms Clark is the elder daughter of the plaintiff and accompanied her to hospital with Mr Bruce after the accident.

96. Ms Clark gave evidence that in the period after the accident the plaintiff could not really use her arm at all and had no movement or strength in it. The plaintiff could not do a lot for herself: T176.17. Ms Clark gave evidence that she saw her mother regularly in the period June to July 2015 and on occasions took her to see the doctor and the physiotherapist. Ms Clark gave evidence that in the period between the time of the accident and going to see the physiotherapist, there did not appear to be any improvement in her mother’s right arm. She gave evidence that the plaintiff could not really use her arm at all in the first month or two. Initially the plaintiff’s pain was in her elbow but Ms Clark noticed that the plaintiff could not lift her arm by raising it: T177.13-.26. Ms Clark said that she noticed a problem with the plaintiff raising her arm immediately she saw her after the accident: T177.38. There did not appear to be any improvement in the plaintiff’s ability to raise her arm when she started to see the physiotherapist and this inability continued: T177.45-.48. Ms Clark confirmed that from the time of the accident up until the time when she started to see the physiotherapist the plaintiff’s ability to raise arm did not improve: T178.25-.32. The problem with the right arm included during the period when the plaintiff saw the physiotherapist up until early 2016: T178.40. Ms Clark noticed that the plaintiff grabbed her right arm when she was in pain: T178.19.

97. Ms Clark conceded that her mother now had more movement in the areas injured in the accident and she could lift her arm up higher. However, she noted that the plaintiff had difficulties reaching out or reaching high with her right arm because of the pain: T178.47-T179.7.

98. Prior to the accident, Ms Clark said that she saw her mother on a regular basis and her mother did all domestic duties at her sister Emma’s house: T179.33. After the accident, she noticed that her mother has not been able to return to the level of domestic duties previously undertaken. It takes the plaintiff a lot longer to clean and she cannot do what she used to do. She confirmed that her father did more around the house including heavy lifting, shopping, cleaning the bathrooms and reaching anything in a high location: T180.11-.26.

99. Ms Clark describes her mother’s condition as having “probably plateaued” and it depends on whether she exerts herself: T180.36.

100. Ms Clark said that she assisted her mother in doing her hair once a week for about half an hour to 40 minutes but her mother was otherwise not in need of other personal assistance. Ms Clark said she had only assisted her mother with personal assistance immediately after the accident for about one to two months: T181.25.

101. Ms Clark was asked some questions in relation to the plaintiff’s capacity to wash her hair before and after the accident. She said the plaintiff dyes her hair and cannot do it for herself. Either on a fortnightly or on a monthly basis Ms Clark assists her with that. She did not assist her with that task prior to the accident.

102. Ms Clark said that she was not aware of the plaintiff having a right shoulder problem in 2004.

103. Ms Clark was asked some questions in relation to the plaintiff’s inability to squat or kneel before the accident. Ms Clark said that she had moved house a few months before the accident and the plaintiff assisted her packing up her kitchen. She said she saw the plaintiff on her knees wiping out the cupboards at this time: T183.3-.35.

104. Ms Clark confirmed that she knew the plaintiff had a right hip replacement some years ago and but said she did not know about the plaintiff’s right knee arthroscopy: T183.42. Ms Clark said that the plaintiff never once complained to her about having a painful knee prior to the accident: T184.7. This was despite the fact that Ms Clark was with her quite a bit and saw her most days: T184.15. Ms Clark accepted that before the plaintiff’s hip replacement, for a period of about six months, she did have trouble but the hip replacement gave her a new lease of life and it did not hinder her: T184.21.

105. In relation to the pain in the plaintiff’s right arm, Ms Clark conceded that the dates on which things happened to the plaintiff after the accident were not clear in her mind but she disputed that her recollection was “hazy”. Ms Clark said that she remembered the pain that the plaintiff was in and the fact that the plaintiff was not able to do a lot for herself: T184.39.

106. Ms Clark conceded that the plaintiff undertook tasks but she could observe that the plaintiff was in pain and she stepped in to assist the plaintiff: T185.2. Ms Clark said that the injury had “really slowed her down” and taken its toll on the plaintiff: T185.20.

Oral evidence for the Defendant

Oral evidence of Mr Robert Goldshaft

107. Oral evidence was given by Mr Robert Goldshaft, who is the General Manager of the Lark Ellen Aged Care home at Sutherland in Sydney. Mr Goldshaft has been the General Manager since 2012. He later gave evidence that the defendant also had another aged care facility at Gymea Bay in Sydney.

108. Mr Goldshaft was shown Exhibit 3 which is the aerial photograph of the Facility and confirmed that the dark lines in the carpark area were lines of brown brick pavers: T189.33. Mr Goldshaft gave evidence that in 2012 work was undertaken at the bottom of the facility as shown on Exhibit 3. A sprinkler control box was installed and the pipes for the sprinklers were placed underneath the line of brick pavers crossing the car park to the hydrant. The brick pavers were then re-installed over the pipes. This was near the car park entry to the Facility well away from the main pedestrian entrance: T190.17-T191.27.

109. Mr Goldshaft gave evidence that the photograph which was Exhibit 2 was taken by him either the day of the accident or the day after the accident: T191.35.

110. Mr Goldshaft said that he met the plaintiff on the day of the accident. He said the weather was fine and it was not raining and there was sunshine: T191.40-.45. Mr Goldshaft gave the following evidence in relation to his conversation with the plaintiff:

Q.  What were the circumstances in which you came upon her that day, what happened?

A.  So I was coming from another facility, arriving, I'd parked my car at the other end near where the sprinkler system was, and I was walking along the driveway towards the front entrance.  She was coming out, and I saw she, you know, had a cart [cut], and I said, "Are you okay?"

Q.  And what did she say?

A.  She said, "Ah, yeah, I'm all right, I tripped here."  I said, "Are you okay?"  You know, naturally, just, "Are you okay?" and she said, "Yeah, yeah, I'm all right."  Then I said, "Do you want to come in?"  She said, "No, no, Kylie helped me", like the nurse.

Q.  Kylie being the director of nursing?

A.  Sorry, "The staff have helped me, and yeah, I'm fine."  Like, she wanted to go.

Q.  Did she point to where she had fallen?

A.  A general point, she said, you know, "I fell here."

Q.  Did you go and look at that area?

A.  Well, we were in the area, so I was close to the entrance when I met her, so we didn't sort of go and inspect anything, she was, you know, "I fell here."

Q.  Did you go and crouch down and give it a close inspection?

A.  No.  There was nothing to crouch for. (T191.47-T192.22).

111. Mr Goldshaft gave evidence that when he looked at the area identified by the plaintiff as the place where she fell he noticed “nothing unusual” about the pavers compared to the concrete that they were set in: T192.35. Mr Goldshaft said he walked there on a daily basis and it looked “normal” to him.

112. Mr Goldshaft said that as a precaution he contacted the defendant’s builder, Mr Daniel Homann, to come to the Facility to inspect the area as he said he wanted to be “over cautious”: T192.44.

113. Mr Goldshaft said that he inspected the whole of the area that was the subject of the Facility’s driveway with Mr Homann. Mr Goldshaft said that upon that inspection he noticed minor discrepancies between the height of the brickwork within the concrete and the concrete itself: T194.12. As a result of the inspection Mr Goldshaft said he instructed Mr Homann to lift up and relay the pavers: T194.17. Mr Goldshaft said he noted that there were parts of the brickwork in various places within the concrete which had height discrepancies: T194.40-T195.7.

114. Mr Goldshaft gave evidence that the discrepancies that he noted in the height of the brickwork were not something that he had noticed from time to time over the years that he had been present at the Facility. Mr Goldshaft also gave evidence that no-one had ever complained to him about the height of the brickwork and nobody had ever told him that they had fallen in the carpark prior to the plaintiff. Mr Goldshaft said he had noticed on a daily basis pedestrians walking through the car park including elderly persons: T195.9-T195.40. Mr Goldshaft had also noticed elderly residents walking through the car park who had walkers or wheelchairs in the presence of the Facility’s physiotherapist aide or the physiotherapist: T195.30. Mr Goldshaft gave evidence that neither the physiotherapist nor the physiotherapist’s aide had ever come to him and said that they were experiencing difficulties in negotiating the car park surface: T196.4.

115. Mr Goldshaft confirmed that the Facility had a Work, Health and Safety Committee. He said he was not a member of the Committee but the Director of Nursing was and he saw the reports from the Committee. He said that if he saw something that was highlighted in the reports that needed work he would action it: T196.19. Mr Goldshaft confirmed that the Committee monitored falls in the Facility and that being an aged care facility, residents falling was something he was particularly concerned about and monitored carefully: T196.40-.45. Mr Goldshaft said that Ms Pat Atlee was a nursing assistant who was on the WHS Committee and is referred to in the reports to the Committee. Mr Goldshaft said he had never seen a work, health and safety report at the Facility that suggested that the car walkway surfaces were not in a good condition: T197.21.

116. Mr Goldshaft gave evidence that he split his time between the two Facilities, one at Sutherland and one at Gymea Bay. He confirmed that the defendant owned both Facilities, that he was not a member of the company which owned them and he was employed specifically in the role as General Manager: T198.12.

117. Mr Goldshaft confirmed that the Facility had a lot of high care needs patients and the standard of safety was high as it would be at any aged care facility: T198.14-.33. He confirmed that was the reason why there was a work safety committee established with systems of inspection: T198.37. Mr Goldshaft gave evidence that the Facility was often being visited by elderly people as well as children and grandchildren and the security and integrity of the area of the Facility needed to be well supervised and monitored: T199.3. He gave evidence that he also looked around the Facility to see if anything needed to be done on top of the recommendations of the Committee. Mr Goldshaft was shown the various photographs which had been taken by Mr Bruce. He agreed that the photographs which were Exhibits E and F were a fair representation of what he observed on the day of the accident after the conversation with the plaintiff. This was also the case with the photograph he took which was Exhibit 2. He agreed that Mr Homann had raised some of the brickwork to align with the concrete and the result was shown in the photographs which were Exhibits J and K. In relation to the photograph which was Exhibit L, which Mr Bruce said was taken on 20 August 2015, Mr Goldshaft confirmed that this was part of the job undertaken by Mr Homann at various areas in and around the carpark: T201.25-.31.

111. Mr Goldshaft was asked whether the work undertaken by Mr Homann was in response to Mr Homann and himself inspecting the areas and observing areas where there were level discrepancies. Mr Goldshaft conceded ‘minor” level discrepancies but accepted that they were nonetheless level discrepancies: T201.33-.41. Mr Goldshaft confirmed that he requested Mr Homann to do the work which he regarded as minor repairs on the basis of an “over precaution” and that nothing had been brought to his attention before this in relation to the discrepancies in the brickwork: T201.45. He agreed that as a result of Mr Homann’s work various level discrepancies throughout the car park had been eliminated: T202.5. He accepted that what he described as the “minor level discrepancies” had been observed by him when he did the inspection with Mr Homann: T202.13.

112. Mr Goldshaft said he walked through the car park daily and did not notice there were discrepancies in the brickwork before the accident but accepted that upon specific inspection with Mr Homann he did determine that there were level discrepancies and asked Mr Homann to fix them: T202.46; T203.9. Mr Goldshaft avoided commenting on a question posed to him by counsel for the plaintiff that if he had undertaken the same type of inspection with someone like Mr Homann four weeks before the accident the discrepancies would have been discernible as a matter of common sense at that time too: T202.30; T203.31. Mr Goldshaft said that if he had noticed level discrepancies previously “we would have attended to them because that’s what we do”: T203.35. Mr Goldshaft confirmed that he did not document the work undertaken by Mr Homann and did not report it to the WHS Committee: T204.23. Mr Goldshaft confirmed that requests usually came through the Director of Nursing, through the WHS Committee and he had never received a verbal request from Ms Atlee for something to be attended to: T204.37-.46.

113. Mr Goldshaft confirmed that there were biannual work, health and safety inspections and that Ms Atlee did the actual physical inspection of the car park area and grounds: T205.34. If Ms Atlee had reported something which she felt may have been hazardous then the proper response was to remedy it: T205.38.

114. It was put to Mr Goldshaft that the height differential in the pavers and the concrete which he observed and remedied after the accident was the same type of hazard which he would have expected Ms Atlee to act upon. Mr Goldshaft said that he thought the height differential was “minor” and “acceptable” and he asked Mr Homann to do the repairs as an over precaution. He also gave evidence that the fact that the height differential did not come up in the WHS reports did not surprise him because he thought it was a minor repair: T206.18.

115. Mr Goldshaft was then taken to various references in the WHS documents to uneven flooring in the Facility. It was suggested to him that no action was taken in relation to uneven flooring within the Facility for two years. Mr Goldshaft denied this and said that the Facility was constantly undertaking minor repairs to flooring including rectifying uneven flooring and that he took uneven flooring “very seriously” and attended to it: T207.37. When taken to problems about uneven flooring in the documents, Mr Goldshaft suggested that the issue was on the inside of the Facility where there was vinyl flooring: T209.22. Mr Goldshaft described the building as a “live building” and repairs were undertaken as they came up: T210.49.

116. In re-examination, Mr Goldshaft said that the repairs were taken as an “over precaution” because he wanted to make sure no-one would fall at the Facility: T211.5.

117. Mr Goldshaft impressed me as a cautious witness who was defensive in relation to the safety record of the Facility and the repairs which were undertaken in the Facility. In my view he was evasive in answering questions about the fact that discrepancies in the height of the pavers could have been discerned prior to the accident as he and Mr Homann had discerned them after the accident. However, Mr Goldshaft did not strike me as being an untruthful witness and in most cases was doing his best to answer questions directly while impressing that he had never been notified of any problem with the height discrepancies of the brick pavers in the parking area nor had any relevant falls in the area been brought to his attention.

Oral evidence of Ms Patricia Atlee

125. Ms Patricia Atlee was called on behalf of the defendant in its case. She gave evidence that she was the niece of Mr Bruce, the plaintiff’s husband, and that she had been an assistant nurse at the Facility since 1998. Ms Atlee gave evidence that she undertook an occupational health and safety course in 2004 and was a member of the Work, Health and Safety Committee at the Facility. She confirmed that she regularly undertook inspections of the Facility as part of the WHS Committee process: T212.22. Ms Atlee says that she was looking as part of the inspection process for any potential risks or hazards that may arise at the Facility: T212.35. Ms Atlee confirmed that the Committee noted falls in the premises by residents with or without injuries. However, Ms Atlee’s evidence was that since 1998 which was when she commenced employment at the Facility she had not become aware of a fall outside the building of the Facility including any falls in the car park area: T213.19. She also confirmed that she had not had any complaints made to her in relation to any of the surfaces of the car park area: T213.23.

126. Ms Atlee’s attention was then brought to various documents of the WHS Committee at the Facility where it was noted that there were uneven surfaces in the Facility and that this was an ongoing issue. Ms Atlee said that if uneven surfaces inside the Facility were noted that they were rectified and attended to straightaway: T213.48.

127. In relation to the outside grounds of the Facility, Ms Atlee confirmed that she did not find during her inspection any hazards which in her opinion would cause an injury to anybody: T214.14. In relation to the observations which Ms Atlee undertook in her inspections from 2013 until the date of the accident, she stated that everything appeared to her to be in good condition and that she did not identify any hazards which would justify notifying a hazard alert: T214.21. She confirmed that from 1998 onwards she observed, in the car parks, residents being walked by the physiotherapist many times and visitors bringing their residents back inside the Facility after they had been on outings. This included persons in wheelchairs and walking with walking frames: T214.39.

128. In relation to the entries in the WHS Committee reports concerning falls, Ms Atlee said that falls both inside and out of the building were something she was particularly concerned about: T215.36. Ms Atlee confirmed that in relation to her inspection report dated May 2015, she had not noticed any uneven surfaces or cracks or holes on the internal walkways: see Exhibit 1, page 74 and T216.6.

129. Ms Atlee gave evidence that she inspected the area where the plaintiff fell after the fall and she noticed “very minimal” discrepancies in the height of the brickwork compared to the concrete. She confirmed that there were other areas in the car park that had similar discrepancies. She also noted quite uneven surfaces on the public footpaths outside the Facility: T216.9-.38.

130. Ms Atlee agreed in cross-examination that safety was a concern for her because of the nature of the Facility which included many older people with high dependency. She agreed that safety was to be considered not only in relation to the residents and the staff but also in relation to visitors to the Facility: T217.17-.37. Ms Atlee also agreed that she had concerns in relation to trip hazards not only inside the Facility but also in relation to the outside grounds to the Facility and the car park: T217.37. This included anywhere that a resident, visitor or staff member may be walking: T217.43.

131. Ms Atlee confirmed that the photographs which are Exhibits E, F, G and H portrayed the area as she inspected it soon after the fall. Ms Atlee was asked whether upon her inspection she recalled seeing that there was a “raised lip” in between the brick hatching and the concrete slab. Ms Atlee said that she noticed it when she was walking around after the accident and it was of “minimal height”: T218.33. Ms Atlee conceded that there was a height differential between the brick hatching and the concrete slab but to her it was “quite minimal” or a “very small difference”. However, she accepted that there was a height differential: T218.39-T218.50. Ms Atlee confirmed that the height differential appeared to be more than the car key which was placed next to the concrete slab in one of the photographs and was higher than the level of an electrical lead.

132. The following evidence was then given by Ms Atlee:

Q.  Just going back to that photograph which is exhibit G with the key ‑ that differential in height acts as a trip hazard in the same way as an electrical lead would, wouldn't it?

A.  Yes.

Q.  That's in an area immediately adjacent to the main area ‑ or main entry, of the hospital?

A.  Yes, it's more or less to the side.

Q.  I'm sorry ‑ the facility ‑ I'm sorry?

A.  Where you're walking through.

Q.  Yes, you walk through and then you turn right towards part of the carpark?

A.  Yes. (T220.7-T220.20).

133. However, Ms Atlee said that the height differential was not identified by her as a hazard in her inspections: T220.24. She agreed that she had not discerned a height differential of the nature shown in the photograph Exhibit G before in her inspections: T220.31. However, Ms Atlee did not agree with the proposition that she did not conduct a proper inspection of the grounds of the Facility: T221.1. Ms Atlee confirmed that the appearance of the differential in the photograph which was Exhibit G was how the brick pavers had been for some period of time prior to May 2015: T221.12. Ms Atlee confirmed that she had not noticed the height differential in her inspections (T221.20) and upon inspection after the fall she regarded it as a “minimal height” differential which was not a hazard.

134. On further questioning, Ms Atlee stated that an electrical cord was different to cement lipping as it was a movable hazard (T224.9) although she would regard an electrical cord strung taut across an aisle way as being also a tripping hazard: T224.27.

135. Ms Atlee appeared to me to be an honest and truthful witness who did her best to answer questions correctly. She made concessions where appropriate. I accept her evidence.

Oral evidence of Mr Gregory Bruce

136. Mr Gregory Bruce gave evidence that he was the nephew of the plaintiff’s husband, Mr Ken Bruce, and that he had been employed as a maintenance officer at the Facility since 1985. Mr Gregory Bruce gave evidence that he had observed people walking and driving upon the car park surface since 2000 without any problems. He stated that he had not encountered a problem himself walking on it, no-one had ever complained about a problem on the car park surface and that he had seen aged people walking across the area and in wheelchairs on a daily basis. Mr Gregory Bruce said that he did not see any person encounter any problems with the car park surface until 15 June 2015: T225.31-T226.6.

137. Mr Gregory Bruce also confirmed that the photograph exhibits which were in evidence, being photographs taken by Mr Bruce, were a fair representation of the general area where the plaintiff fell both after the accident and after the various repair work was undertaken by Mr Homann on behalf of the defendant. Mr Gregory Bruce also gave different evidence to the plaintiff’s husband, Mr Ken Bruce, in relation to conversations they had had after the accident. In particular he denied that he told Mr Ken Bruce that a requisition had been put in prior to the accident to repair the general area where the plaintiff fell. Mr Gregory Bruce said the conversation related to the other end of the car park where the sprinkler pipes had been laid and the brick work had been re-set.

138. In relation to the WHS Committee, Mr Gregory Bruce said he was a member of the Committee which met every two months and discussed what needed to be done at the Facility. Mr Gregory Bruce said that Ms Atlee undertook the inspections of both the inside of the Facility and the car park area and reported to the Committee. Mr Gregory Bruce said that if something could be repaired by him he did it otherwise he would arrange for a tradesman to attend to the task.

Oral evidence of Ms Connie Cheung

139. Ms Cheung is the Director of Nursing at the Facility and has been in that position since 2007.

140. Ms Cheung confirmed that residents of the Facility walked across the car park area but were always assisted by a staff member when doing so. Ms Cheung said she had received no complaints in relation to the surface of the car park nor had she had any difficulty herself walking across it.

141. Ms Cheung confirmed that she prepared the incident report in relation to the plaintiff’s fall which is at page 124 of Exhibit 1.

142. In cross-examination Ms Cheung said the car park area was not an exercise area for residents but residents had to cross it if they were taken to a car. Ms Cheung confirmed that the plaintiff had told her on the day of the accident that she had tripped on the concrete outside: T235.20. Ms Cheung said she did not inspect the place where the plaintiff claimed she fell: T237.5.

Evidence of Mr Daniel Homann

143. Mr Homann is the principal of Homann Constructions, builders. He gave evidence that he did various building type work at the Facility since about 2010 including relaying the pavers when the sprinkler system was installed in the car park area of the Facility in 2012. Mr Homann said he did not do other repair work to pavers in the period between 2012 and the date of the accident.

144. He confirmed that Mr Goldshaft approached him after 15 June 2015 in relation to the brick paving in the concrete driveway. He undertook an inspection of the whole car parking area and formed the opinion that it was in ‘good condition”: T240.1. Mr Homann confirmed that he lifted pavers in 10 or 11 different areas and set them again. He also confirmed that he measured the height differences with a tape measure and the worst area was between 10 and 20mm with a lot of other areas of a lesser differential: T240.8-.14. He then repaired all of the areas. Mr Homann confirmed that on the first repairs some of the bricks were broken when they were taken out and new pavers were ordered and reset on a later occasion.

145. Mr Homann gave evidence that he attended the Facility every couple of months and walked on the surfaces of the car park without difficulty. Mr Homann agreed that the photographs which were Exhibits E, F, G and H accurately reflected what he observed at his inspection soon after the accident.

146. Mr Homann was an impressive witness and I generally accept his evidence.

The plaintiff’s tender bundle

147. The plaintiff tendered an occupational therapy care report dated 18 July 2016 by occupational therapist Ms Jasmine Grey. Ms Grey undertook a review of the plaintiff in her Miranda home and took a number of photographs of the plaintiff. Ms Grey noted that the plaintiff described intermittent pain at her right shoulder which was aggravated when using her right arm in daily activities. In particular, the plaintiff had reduced right shoulder range of motion and strength and had difficulties with activities requiring pushing and pulling movements and reaching.

148. Ms Grey noted that the plaintiff had told her that she was provided with the following gratuitous domestic care and personal care assistance:

1. Stage 1 – 15 June 2015 to 6 July 2015 – 23 hours per week;

2. Stage 2 – 7 July 2015 to 7 July 2016 – 6 hours.

149. Ms Grey recommends the introduction of commercial domestic care assistance at five hours per week: Exhibit A, page 435.

150. This recommendation must be considered in the light of the evidence of the plaintiff, Mr Bruce, Emma Johnston and Renee Clark. Different estimates were given by the plaintiff and Mr Bruce to that provided to Ms Grey. In addition, it became clear from the evidence that Mr Bruce undertook a lot of the domestic activities in the house with some assistance from the plaintiff within her limitations and Emma Johnston. It would appear to be the case that as Mr Bruce ages and Ms Johnston’s children become older, that Ms Johnston may well be able to assist more around the house. This has to be taken into consideration in determining the validity of the recommendation for future commercial care assistance.

151. The plaintiff also tendered a number of documents produced by the defendant. These shall be considered in relation to the defendant’s tender bundle.

The plaintiff’s medical evidence

Medical consultations in relation to the right shoulder in 2004

152. The evidence establishes that the plaintiff, Mrs Bruce, consulted her general practitioner, Dr Liow, in relation to complaints concerning her right shoulder in 2004. It will be recalled that a major issue in the case is whether the plaintiff’s current complaints in relation to her right shoulder are long standing or were caused by the subject accident.

153. In the defendant’s bundle, Exhibit 1, at page 43, is a report by Dr Julian Adler, radiologist, dated 10 March 2004 in relation to the plaintiff’s cervical spine and right shoulder. The report concluded that there was significant degenerative narrowing of most of the cervical disks and also facet joint degenerative changes. In relation to the right shoulder a normal report was provided.

154. The medical notes of general practitioner Dr Liow show that the plaintiff consulted the doctor on 9 March 2004 complaining of a difficulty in the right shoulder when moving the arm away from the body and that it had been getting progressively worse for six months. Dr Liow’s examination concluded as follows: “Right shoulder now tender painful on abduction more than 90 degrees”. Dr Liow referred the plaintiff for an x-ray of the right shoulder.

155. The plaintiff’s right shoulder is referred to three times in the notes of Dr Liow prior to the accident. A transcription of these notes became Exhibit B. The second consultation was on 10 March 2004 which was transcribed into the notes on 11 March 2004. After commenting on the plaintiff’s spine, Dr Liow noted that the x-ray of the right shoulder was normal. The notes state: “Advised on neck and right shoulder exercises”.

156. On 23 April 2004 the plaintiff again attended Dr Liow complaining of pain in the right shoulder. Dr Liow referred the plaintiff to a physiotherapist and concluded: “Painful right shoulder secondary to cervical spondylosis”.

157. There are no further relevant complaints by the plaintiff in relation to her right shoulder in the eleven years prior to the accident.

Summary of other relevant medical history prior to the accident

158. The plaintiff had complained of various issues prior to the accident. She had been reviewed by an ophthalmic surgeon in 2009 and eventually bilateral cataract surgery was performed in 2011. Although this required review by an ophthalmic surgeon in 2012, the plaintiff said she had no problems with her eyes immediately prior to the accident.

159. The plaintiff had also complained of problems with her right knee in 2010. In April 2011 the plaintiff had a right knee arthroscopy and a medial meniscectomy performed by Dr Michael Dixon. The plaintiff stated that she had no problems with her right knee at the time of the accident.

160. The plaintiff also had problems with her right hip. In March 2012 the plaintiff underwent a right total hip replacement performed by Dr Michael Dixon, orthopaedic surgeon. The plaintiff gave evidence that at the time of her accident her hip had recovered well and was not giving her any problems.

161. The plaintiff also stated that shortly prior to the accident she hurt her left foot when she kicked a skateboard. There was no evidence that this caused her any lasting problems.

1. Ms Atlee should have seen the height differential and reported it to the WHS Committee;

2. The height differential was somewhere between 10-20mm on the evidence of Mr Homann, the photograph which is Exhibit D with the house key and the expert report of Mr Cooke who gave an estimate in the light of the size of the brick. This is higher than an electrical cord which is a clear hazard;

3. What had to be taken into account was that this was a commercial facility, not a public footpath or premises owned by a council or indeed, private residential premises as in Neindorf;

4. What also had to be taken into account was that the area was traversed by elderly people, some of whom were disabled and that a high standard of duty of care was owed in the circumstances;

5. The defendant had failed to exercise reasonable care in failing to remedy before the accident the area where the plaintiff fell which was a clear risk and hazard.

240. In my view, relevant factors in undertaking the analysis under Section 5B of the CLA include:

1. The area was a shared walkway and driveway. The plaintiff walked across it in daylight when the accident occurred. There is no evidence that the concrete lip on which the plaintiff fell was shaded or concealed at the time. The plaintiff was not under any disability at the time. However, the area was used by visitors including elderly visitors;

2. The contrasting colour of the brickwork differentiated it from the concrete slabs;

3. The plaintiff had walked across the area for the nine months prior to the accident including up to about 100 times without any difficulty;

4. The defendant had put in place a WHS Committee, and Ms Atlee who had training in occupational health and safety had reported that there was no problem with the outside walkway areas;

5. No problems in the area had been reported to the defendant, nor had there been any reported falls in the area;

6. Whilst the area was used by elderly and disabled persons which is a relevant factor a defendant is entitled to expect that users would exercise reasonable care for their own safety by looking where they were to walk;

7. As was stated by the Court of Appeal in Hastings Council v Giese [2003] NSWCA 178 at [31] the plaintiff, being an older lady and by her age being more vulnerable to the consequences of falls than younger persons, and less likely to be able to regain her balance if she slipped or stumbled than younger persons, should have been seeking to observe closely the area in front of her feet as she moved along;

8. As was stated by the Court of Appeal in Bathurst City Council v Cheesman [2004] NSWCA 308 at [24], the case was not one where a person has fallen inside a shop or indoor commercial premises where the surface of the floor might be expected to be even. Here it was outside in an area shared by pedestrians and traffic and accordingly some unevenness was to be expected. The case is not like Raad where the slipperiness of the tiles would not have been obvious to a reasonable person exercising care.

241. As the plaintiff’s claim is under the CLA, an analysis needs to be undertaken by the Court of the matters set out in Section 5B of the CLA. That is an analysis to be determined prospectively by reference to the evidence: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [30]-[31].

242. In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 Gummow and Hayne JJ stated at [192]: “[The breach enquiry] involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk.”

243. Section 5B of the CLA provides as follows:

“5B   General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless:

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm.”

244. I analyse the matters referred to in Section 5B of the CLA as applicable to the current case as follows:

1. The risk to the plaintiff of falling on the raised concrete lip was foreseeable by the defendant, being a risk of which the defendant ought to have known. There is no evidence that the defendant actually knew of the risk prior to the accident. The evidence from the defendant’s internal records suggests that the risk was not perceived prior to the accident. However, the raised lip was able to be perceived upon a detailed inspection after the accident;

2. The risk of injury was not insignificant if the plaintiff fell. However, having regard to the lack of prior injury or complaint, in my view the risk of falling in the circumstances of the present case was not significant in the circumstances of a pedestrian looking where they were going having regard to the height differential between the brick pavers and the concrete slab where the plaintiff fell of between 10 and 20mm;

3. In my view, a reasonable person in the defendant’s position would not have taken the precautions prior to the accident of raising the pavers even taking into account it was a commercial facility which had visitors who were elderly. The height differential in my view was not so significant as to create a danger or a trap. To use the words of Callinan and Hayden JJ in Neindorf at paragraph 116 the nature and extent of the danger were minor, obvious and of a kind which were unexceptionally encountered in outdoor areas including in areas outside the Facility. Whilst the Facility was commercial premises and had frequent visitors, there is no suggestion that the plaintiff’s age or her physical condition prevented her from appreciating the differential in height between the pavers and the concrete slab such that it could be called a danger. The differential was not concealed. The change from the brick pavers to the concrete slab in obviously different materials alerted someone such as the plaintiff to the potential for a change in height. The unevenness in the two surfaces was of a kind that is often encountered by pedestrians outside premises including shared parking/walkways outside commercial premises. The differential would have been readily seen by someone looking carefully where they were walking;

4. There is a low probability that the harm would occur to a pedestrian if care were not taken to raise the particular pavers. The likely seriousness of the harm if someone tripped is a relevant factor to be taken into account. The burden of taking precautions to avoid the risk of harm was not significant having regard to the nature of the Facility and was taken by the defendant after the fall was known. There is also nothing relevant in the social utility of the activity that creates the risk of harm which should be taken into account.

245. In my view the fact that there was some unevenness between the two surfaces which could result in a person stumbling and falling was not sufficient to establish a breach of duty of care in the present case. Uneven surfaces are regularly encountered on both public and private land and even external to commercial premises. In my opinion the differential in height did not create a dangerous situation. The defendant had established a system to review outside walkways and had not perceived this as a danger. I do not accept that Ms Atlee performed her duty poorly in reviewing the area. In my view, balancing all the evidence, a reasonable person in the position of the defendant prior to the accident having undertaken regular inspections of the walkway area externally would not have taken action to have reduced the unevenness in question in the present case.

246. I am highly sympathetic to the plaintiff concerning the injuries which she received in the accident. She appeared to be an honest witness who has struggled with her injury. However, on the whole of the evidence, and in the light of the existing authority, I find that there was not a breach of duty of care by the defendant.

Causation

247. The cause of action in negligence is to be determined in relation to causation in accordance with Section 5D of the CLA. Section 5D of the CLA is as follows:

“5D   General principles

(1)  A determination that negligence caused particular harm comprises the following elements:

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

248. Section 5E of the CLA is as follows:

“5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

249. The plaintiff has the onus of proving on the balance of probabilities any fact relevant to the issue of causation.

250. The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves the application of a “but for” test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18].

251. The enquiry as to causation is a wholly retrospective one and seeks to identify what happened and why. The causation issue turns on the plaintiff’s proof on the balance of probabilities that the failure to take the precaution alleged was a necessary condition of the occurrence of the harm: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [95]-[96].

252. In the present case I accept that if the repair work had been undertaken by the defendant prior to the accident that the accident would not have occurred. The trip was clearly caused by the unevenness in the paved surfaces. Accordingly, I find that causation is established.

Contributory negligence

253. The defendant has pleaded contributory negligence in the present case against the plaintiff. Although I have found in the present case that a breach of the duty of care owed has not been established by the plaintiff I will proceed to consider this question if I am in error in that finding.

254. The particulars of contributory negligence which are pleaded in the Amended Defence are as follows:

1. Failing to take any, or any proper, precautions for her own safety;

2. Failing to properly watch where she was walking;

3. Failing to observe and avoid the alleged uneven driveway surface.

255. The plaintiff conceded that she was not looking where she was walking and did not see anything that caused her to fall: T120.10. She frankly conceded that she could have been looking for her keys in her handbag or looking where her car was at the time she tripped: T125.5-.20

256. The question is whether the plaintiff has been contributorily negligent in the circumstances of the present case by failing to take the particularised steps against the risk of harm: see Section 5R of the CLA. Contributory negligence can defeat a claim: see Section 5S of the CLA. The question raised by Section 5R is whether a reasonable person in the position of the plaintiff, that is having the knowledge which the plaintiff had or ought to have had at the relevant time, was negligent: Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 at [217] per Hoeben JA (with whom Macfarlan and Ward JJA agreed).

257. The plaintiff submitted that this was a case of mere inadvertence and there was no failure to take reasonable care: Commissioner of Railways v Ruprecht (1979) 142 CLR 593. The defendant submitted that this was a clear failure by the plaintiff to look where she was walking and exercise reasonable care in taking precautions for her own safety.

258. In my view whilst the area was an area frequented by both persons and cars a reasonable person in the plaintiff’s position would have looked where she was going, although there was not a significant breach by the plaintiff in the present case: see Harrington Estates (NSW) Pty Ltd v Turner [2016] NSWCA 369 at [61]-[64]. Some unevenness outside was to be expected and required care to be taken. In my view, taking all the evidence into account the plaintiff’s damages if a breach had been established should be reduced by 15%.

Obvious Risk

259. In paragraph 3 of the Amended Defence the defendant pleads that this was an obvious risk. Sections 5F, 5G and 5H of the CLA provide as follows:

5F   Meaning of “obvious risk”

(1)  For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2)  Obvious risks include risks that are patent or a matter of common knowledge.

(3)  A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4)  A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G   Injured persons presumed to be aware of obvious risks

(1)  In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2)  For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

5H   No proactive duty to warn of obvious risk

(1)  A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

(2)  This section does not apply if:

(a)  the plaintiff has requested advice or information about the risk from the defendant, or

(b)  the defendant is required by a written law to warn the plaintiff of the risk, or

(c)  the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3)  Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

260. In my view the risk in the present case was an obvious risk within Section 5F of the CLA as it would have been obvious to a reasonable person in the position of the plaintiff taking reasonable care for their own safety. The risk being the differential in height was in my view patent in the present case. Accordingly, there was no proactive duty on the defendant to warn the plaintiff of the obvious risk.

Damages

261. I will now proceed to an assessment of damages which will be relevant if I have erred in relation to the breach issue.

262. The alternative submissions of the parties are as follows:

Plaintiff		Defendant
Non-economic loss	30%	$139,000.00	20%-25%	$21,000-$39,500
Past out of pocket expenses	$4,652.95	$4,652.95
Future out of pocket expenses	$16,810.00	$Nil
Past gratuitous care	$20,115.00	$Nil
Future gratuitous/commercial care	$166,200.00	$Nil
Total	$346,777.95

Non-economic loss

263. The plaintiff’s loss in the present case is to be assessed as a percentage of a most extreme case under Section 16 of the CLA.

264. The evidence shows, as set out above, that the plaintiff has some continuous minor problems with her right knee and significant restrictions with her right arm and shoulder which causes her pain and limitations. Although the plaintiff was 70 at the time of the accident, the evidence shows her to be active, caring in relation to her elderly father and a person who undertook most of the inside domestic services for herself, her husband, her daughter Emma and Emma’s three daughters. The plaintiff impressed as a person who was vigorous and active and got on with the job and has been substantially affected by her limitation. I accept the submissions made by the plaintiff’s counsel in this regard.

265. The plaintiff’s age is obviously relevant. As the defendant submits in paragraph 23 of its written submissions, the plaintiff was born in January 1945 and is now aged 72.5 years and has a life expectancy of about 16.89 years.

266. In Varga v Galea [2011] NSWCA 76 at [72]-[74] McColl JA (with whom Beazley P and Handley AJA agreed) stated as follows:

[72]Reece v Reece states the uncontroversial proposition that the plaintiff’s age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed).

[73]Age, however, is only one of the numerous matters the court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows:

“non-economic loss” means any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement.

[74]The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a “most extreme case”. In this respect, in my view however, Windeyer J’s remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71–72) remain cogent:

Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables.

As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage “reflected the previous law”.

267. I take into account the plaintiff’s age, her vigour prior to the accident for her age and the effect of the accident on her.

268. Taking into account all these matters and all the evidence in the circumstances, I assess the plaintiff’s present case at 27% of severity (as a proportion of a most extreme case) which equates to 10% of $605,000 which is $60,500.

Past out of pocket expenses

269. These are agreed at $4,652.95.

Future out of pocket expenses

270. The plaintiff has stopped seeing her doctor and physiotherapist in relation to her injuries: T51.23. The plaintiff also confirmed that she had not been taking any medication: T51.27.

271. In the light of this evidence, the plaintiff has not established to my satisfaction that there should be any award for future out of pocket expenses.

Past and future care

272. In my view, the evidence and submissions establish the following:

1. That while Mr Bruce and Emma Johnston assisted the plaintiff to some degree in relation to inside domestic duties prior to the accident, the plaintiff completed the vast majority of domestic duties and effectively ran the house for Emma;

2. No claim is made under Section 15B of the CLA. The only claim is made under Section 15 of the CLA;

3. After the accident the plaintiff was able to do very little for the first six-eight weeks as her injuries healed. She was able to commence driving about six months after the accident. Since that time, whilst she is able to do more around the house, the plaintiff’s husband, Mr Bruce, has undertaken most of the domestic duties around the house due to the working commitments of Emma which, on all the evidence, appear to be unavoidable at present;

4. I have found in favour of the plaintiff in relation to the medical issue concerning her right shoulder which I have found was caused by the accident.

273. Section 15 of the CLA provides as follows:

15   Damages for gratuitous attendant care services: general

(1)  In this section:

attendant care services means any of the following:

(a)  services of a domestic nature,

(b)  services relating to nursing,

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

gratuitous attendant care services means attendant care services:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note. By reason of the operation of section 3B (1) (b), this section does not apply to the determination of civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989.

Section 15A makes provision with respect to the determination of damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 of the Dust Diseases Tribunal Act 1989

274. The defendant submitted that activities were shared by the adults in the household before the accident and there has been an adjustment to the household since the accident.

275. In White v Benjamin [2015] NSWCA 75 Meagher JA (with whom Basten JA agreed) stated as follows at [61]-[66].

[61]The references to shopping “for herself“, ironing “her own clothes“ and cleaning “one bathroom“ reflected an express finding that the respondent was liable to compensate the plaintiff only for those services “provided to satisfy the needs of“ the plaintiff personally, and not the needs of her family members, which thus excluded the cleaning of a second bathroom, washing and ironing for her husband and the children and otherwise attending to the children’s needs: at [50] and [51]. The plaintiff submitted that this dissection of needs and services was erroneous and that, at least to the extent that the needs were commingled, that approach should not have been adopted. It went further than an allocation of needs within the home: the trial judge declined to make any allowance for time spent by the plaintiff’s husband in maintaining the garden and lawns of the family home because, he said, Mr White had “a direct interest in maintaining the amenity of the grounds, and because he attends to that interest, the plaintiff has no independent need requiring satisfaction”: at [53].

[62]A similar factual situation arose in a case determined under the common law in the ACT, namely Hodges v Frost (1984) 53 ALR 373 (Full Court of Federal Court: Gallop, Morling and Kirby JJ). The wife had suffered a whiplash injury in a motor accident. Her husband gave evidence, accepted by the trial judge, to the following effect (set out at 53 ALR, 376):

If she tried to do housework herself, the resulting pain made her irritable and hard to live with. Whereas before the accident he did no housework in normal circumstances, after the accident he had to “reorganise“ himself “completely“ to do the vacuum cleaning, some washing, most of the ironing and cooking the evening meal.

[63]The case was concerned with a claim for gratuitous domestic assistance, based on Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161. As Kirby J noted, the services must “go beyond the mere rearrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment“ and “must be such that, but for the gratuitous and benevolent activities, it would have been necessary to secure assistance at a cost“: at 380, referring to Griffiths at 168. That test was not without its difficulties, but the more important distinction was that drawn between the services required by the plaintiff and the services which the plaintiff provided to others, albeit, as a result of the accident, she was not able to provide either: at 383.

[64] Kirby J referred (at 384) to an unreported decision of Cummings v Canberra Theatre Trust (unrep, 18 June 1980, Full Court of Federal Court: Brennan, MacGregor and Fisher JJ). In the joint reasons of Brennan and Fisher JJ the following appeared:

Where, according to the practice of a family of which the plaintiff is a member, the plaintiff performs particular domestic chores and is disabled from continuing them by the conduct of a tortfeasor, that incapacity is a loss suffered by the plaintiff and, subject to what was said in Griffiths v Kerkemeyer … as to the benefit of subventions received from third parties, the cost of providing the services which are needed because of the incapacity should be borne by the tortfeasor. This is not a case where there was a rearrangement of domestic chores consequent upon an injury, and the events which occurred after the accident showed that it was reasonably necessary to provide the requisite services at a cost.

[65] In Hodges Kirby J further noted at 387, 388:

Although it is true … that the services of a domestic nature rendered by the husband were partly for his own benefit and only partly for the benefit of the injured wife, it is difficult to disentangle the domestic duties he performed. Somebody had to clean the house and cook the meals. Whilst allowance may be made for the fact that some ironing, washing and other duties were not specifically for the wife’s needs, these must be considered marginal.

…

Here, the needs were the commingled needs of husband and wife, but no less the needs of the wife because they were in some cases mutual.

[66]That approach was approved by McHugh J in CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1, a case where the male worker was injured, at [115]:

To the extent that [the injured plaintiff] took pleasure in gardening and attending to the car, he would be entitled to damages for loss of amenity and enjoyment of life. To the extent that his injury prevented him from performing these tasks and necessitated the provision of services from another person, there is no reason why he would not be eligible for Griffiths v Kerkemeyer damages at the market rate for those services. The same is true in relation to the domestic duties that he had performed around the house.

276. The needs and services of the plaintiff in the present case were in my view commingled and no clear line could be drawn in many cases between services required by the injured plaintiff performed by Mr Bruce and those which benefit other family members such as Mr Bruce himself, Emma and the grandchildren. Further, it is clear that what has occurred in the present case goes beyond the mere rearrangement of domestic chores but a wholesale alteration in the internal duties within the house with Mr Bruce performing the majority of them. I also take into account the decision of the Court of Appeal in Miller v Galderisi [2009] NSWCA 353 that paid care should not be awarded to a plaintiff if the evidence is that gratuitous care would continue to be provided. The plaintiff’s husband confirmed that he had no intention of ceasing to provide such care as he does. Emma Johnston also confirmed at T174.24 that she and her sister would assist the plaintiff and Mr Bruce to the extent that they could not perform domestic duties. This obviously has to be taken into account in the light of Emma’s substantial family and work obligations at present which will change in the future.

277. The defendant submits that the evidence does not establish six hours of gratuitous care for a period of six months as is required by Section 15(3) of the CLA. Alternatively, it is submitted that paid commercial assistance should be allowed for 3 hours per week for no more than 5 years as the plaintiff would have required paid care after that time anyway because of advancing age.

278. The plaintiff submits that not only has a need for gratuitous care been established by her but also a need for future commercial care.

279. The plaintiff submits that the following gratuitous care has been established on the evidence:

1. For 6 months after the accident: 17 hours weekly;

2. From January 2017 to present: 7.65 hours weekly;

3. Future care: 7.65 hours.

280. In my view the evidence taken as a whole establishes the following past gratuitous care:

1. Period from 15 June 2015 to 31 July 2015: the plaintiff was effectively totally incapacitated and could undertake few domestic tasks. I allow 20 hours per week. In allowing this period I take into account the extent of the plaintiff’s injuries, the oral evidence and the report of the occupational therapist Ms Grey (page 12 in particular) adjusted to take account of the oral evidence;

2. Period from 1 August 2015 to 15 January 2016: the plaintiff’s condition improved and she was able to undertake more tasks around the house but she was still very restricted and could not drive: I allow 12 hours per week;

3. Period from 15 January 2016 to date: the plaintiff’s condition continued to improve in limited ways but soon plateaued and there has been no improvement for some time. Mr Bruce undertakes many domestic tasks previously undertaken by the plaintiff: see T143-149. I allow 6.5 hours per week based on the oral evidence of Mr and Mrs Bruce and their daughters.

281. I will allow the parties to make the calculation if required.

282. As to the future, I agree that having regard to his age and health issues Mr Bruce will not be able to continue to undertake all domestic duties indefinitely. As her children grow older, in my view Emma Johnston will undertake more domestic duties with the assistance of Renee Clark. I consider it likely that the current arrangements will continue for three years and then Mr Bruce will undertake significantly less tasks. From that stage three hours of paid assistance will be needed until the plaintiff reaches 82 years of age when paid assistance would likely have been required anyway. Accordingly I allow:

1. 6.5 hours at $30 per hour for 3 years being: 195 x 145.6 (195 x $1 per week at the 5% rate) = $28,392;

2. 3 hours at $33 per hour for 6.5 years deferred for three years being 99 x 290.4 (99 x $1 per week at the 5% rate) = $28,749.60 x 0.864 (deferred for three years) = $24,839.65.

283. I will allow the parties to undertake the necessary calculations of the amount for past gratuitous care and future gratuitous and paid care and to check my calculations.

Conclusion

284. For the reasons given, I find that there has not been established in the present case a breach of a duty of care owed by the defendant to the plaintiff.

285. Accordingly I make the following orders:

1. Judgment for the defendant. The Statement of Claim is dismissed.

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

3. Liberty to apply on two business days’ notice to vary the costs order in (2) above.

4. Exhibits are to be returned after 28 days.

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Decision last updated: 01 September 2017