Carleton v National Spiritual Assembly of the Baha'is of Australia
[2025] TASSC 11
•12 March 2025
[2025] TASSC 11
| COURT: | SUPREME COURT OF TASMANIA | ||||
| CITATION: | Carleton v National Spiritual Assembly of the Baha'is of Australia Incorporated [2025] TASSC 11 | ||||
| PARTIES: | CARLETON, Janelle Lee | ||||
| v | |||||
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| BAHA'IS OF AUSTRALIA INCORPORATED | |||||
| FILE NO: | 2517/2016 | ||||
| DELIVERED ON: | 12 March 2025 | ||||
| DELIVERED AT: | Launceston | ||||
| HEARING DATE/S: | 6, 7, 8, 9 and 16 November 2023 and written submissions | ||||
| JUDGMENT OF: | Pearce J | ||||
| CATCHWORDS: |
Torts – Negligence – Standard of care, scope of duty and subsequent breach – Civil liability legislation – Response to risk and avoidability
Aust Dig Torts [1173]
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips, A Kendall Defendant: T Cox SC
Solicitors:
Plaintiff: Phillips Taglieri Defendant: Meridian Lawyers
| Judgment Number: | [2025] TASSC 11 |
| Number of paragraphs: | 109 |
Serial No 11/2025 File No 2517/2016
JANELLE LEE CARLETON v NATIONAL SPIRITUAL ASSEMBLY OF
THE BAHA'IS OF AUSTRALIA INCORORATED
| REASONS FOR JUDGMENT | PEARCE J 12 March 2025 |
1 This is an action for damages for personal injury. On 4 October 2013 the plaintiff, Janelle Carleton, was injured when she fell from the single step which led from the side of a stage at the Baha'i Centre of Learning (the Centre) at 1 Tasman Highway, Hobart. The Centre was occupied and operated by the defendant. Mrs Carleton claims that her injury was caused by the defendant's negligence. Liability for negligence and the amount of the claimed damages are both in dispute, and the defendant alleges contributory negligence.
2 For the following reasons I find for the plaintiff and there should be no reduction for
contributory negligence.
The plaintiff's presence at the Centre
3 At the relevant time, Mrs Carleton lived in Queensland. She was employed as an events manager by Office Logistics Pty Ltd (Office Logistics). Office Logistics was engaged by the Australia and New Zealand Education Law Association (ANZELA) to arrange its 2013 national conference and the conference was being held in Hobart. Mrs Carleton had been the principal organiser of the ANZELA conference each year between 2009 and 2013. She and Donna Bennett, a principal of Office Logistics, travelled to Tasmania a year or so earlier and selected the Centre as the venue.
4 The Centre was designed by the architect Stuart McKenzie Hall, and opened in 2008. It was constructed by and for the Hobart Baha'i community with the assistance of funds provided by a private foundation. It is a substantial building. During the construction between about 2001 and 2008, Sohale Aflatooni, also an architect, was project manager for the foundation. After the Centre opened in 2008, Mr Aflatooni was employed by the defendant as centre manager. Baha'i community activities were conducted at the Centre and, in addition, it was routinely hired out for use for other gatherings including conferences, weddings, funerals, musical performances, seminars and workshops.
5 The Centre included a large circular auditorium with capacity to hold more than 250 seated persons. The auditorium had a timber stage also designed by Stuart McKenzie Hall. It was built by Philip Wren. Mr Wren was a carpenter and cabinet maker and was responsible for much of the timber construction in the Centre. The stage was 375 millimetres high, so the surface of the stage was that distance above the polished concrete floor of the auditorium. It was shaped to fit against the curved wall, and so could be accessed from the front and from both sides. The stage was designed to be portable so it could be placed against the wall at any part of the room, but the evidence established that, in practice, it stayed in the place in which it was located when Mrs Carleton fell. Viewed from the front, the right hand side of the stage extended out from the curved wall by 2.337 metres. That is, the stage was 2.337 metres deep at that point.
6 The 2013 ANZELA conference commenced at the Centre on 3 October and was to continue until 5 October. It was conducted principally in the auditorium. Mrs Carleton and Mrs Bennett travelled to Tasmania a few days in advance and stayed at a hotel nearby. Mrs Carleton described her work over the week or two leading up to the conference as "intense", involving "lots and lots of hours, data entry, printing, name badges, packing bags". She and Mrs Bennett visited the Centre on 2 October. On that day, and during the conference, they had access to a separate room, referred to in the
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evidence as "the children's room", in which they stored conference materials and personal belongings. On 3 October Mrs Carleton arrived at the Centre early, she thought about 7.30am. Her duties included to attend to conference registrations and general administrative work. Mrs Bennett was responsible for setting up the computers and audio visual (AV) equipment and materials for the conference presentations in the auditorium. There was a separate AV room adjacent to the auditorium and opposite the stage separated by a large window. The conference was opened that morning by the then Governor of Tasmania, the late the Honourable Peter Underwood AC.
The plaintiff's fall
7 On the first day of the conference, 3 October 2013, Mrs Carleton had no occasion to go onto the stage. Mrs Carleton was injured on 4 October 2013, the second day of the conference. One of her tasks on that morning was to place the gifts to be presented to conference speakers on a table at the back of the stage. I infer that this occurred relatively early in the day, before the conference proceedings commenced around 9.00am. She entered the stage from the left, walked across to the table and deposited the bags containing the gifts. She then kept walking, intending to leave from the right side of the stage. In these reasons, references to the left and right of the stage are as the stage is viewed from the front. As she was about to step down she saw a "timber box which was being used as a step". She described what then happened in these terms:
"I stepped off the stage onto the step which was a timber box…I put my foot onto the step and it tipped forward and I came off onto the polished concrete floor onto my right side. I hit my right arm and hip, and the momentum of coming off, my left hand came across me and also slammed in – as I've come down like that, slammed into the concrete".
8 Mrs Carleton described that she was in "searing pain", initially in her right hand because she had "really slammed into the concrete". As she got up from the floor she felt pain in the left side of her neck, down into her arm and into her shoulder blade.
The cause of the plaintiff's fall
9 Although there were others present at the Centre at the time, there is no evidence that anyone else saw Mrs Carleton fall and there is no evidence from anyone about the position of the step after the fall; where it was in relation to the stage or whether it was found on its base or on its side. It is common ground that, at the relevant time, the step was a timber box, placed on the concrete floor, but not fixed to either the floor or the stage. According to Mrs Carleton, the person who first approached her after she fell was Vernita Zigouras, who she knew as a former national president of ANZELA and who was attending the conference. Ms Zigouris did not give evidence. Mrs Carleton was then taken into the children's room.
10 A number of factors impact on the likelihood, or otherwise, of Mrs Carleton's account. One of the central factors is the physical characteristics of the step. Aspects of its design, its weight and dimensions, are in issue. There was no handrail. When the Centre first opened, there was no additional step to facilitate access from the floor onto the stage. In 2009 Mr Wren was asked by Mr Aflatooni to build a step for each side of the stage, I infer because it was difficult for a person to step up or down the 37.5 centimetres between the surface of the stage and the floor. Mr Wren built two steps and sent an invoice on 28 May 2009. The component of the invoice for making the steps was $210. There is no evidence that Mr Wren was given any design, drawing or instruction indicating what was to be built. It was largely left up to him to decide. Mr Aflatooni said in his evidence that the only thing Mr Wren was asked to do was to build a step and "we don't tell carpenters and builders how to build."
11 The step no longer exists. It was disposed of by the defendant at some unspecified time after 4 October 2013, and it has never been available for examination by the plaintiff. There is no expert
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evidence relevant to the physical characteristics of the step and how it may have behaved when force was applied to it. However, photographs of the step are in evidence. There are photographs which show steps onto the stage in various forms because, as will be explained, modifications were made after Mrs Carleton fell. The dates on which the various photographs were taken were not the subject of evidence, and cannot be established with certainty, but the approximate dates can be inferred from other evidence. Some photographs are included in the court book which is in evidence as a single exhibit. Those photographs are, however, separately numbered. Other photographs are separate exhibits. For ease of later identification and understanding I will refer to the exhibit and photograph numbers.
12 Mr Wren agreed that he was engaged by Mr Aflatooni to make the steps for the stage in 2009 although he had no memory of doing so. The photographs establish that what Mr Wren built in 2009 was effectively two wooden timber boxes, one for each side of the stage. For present purposes it is the one which was positioned on the right side of the stage which was photographed and is relevant, although I am satisfied that the one built for the left was very likely the same. Mr Aflatooni said that they were the same, at least in terms of height and tread depth. No modifications were made to the steps between the time that they were originally built by Mr Wren in 2009 and 4 October 2013. The step placed to the right of the stage is depicted in that form in P1, photographs 41, 42 and 43 which must have been taken between 2009 and 2013. Use of the step meant that a person entering the stage from either side would first step on the box, and then on to the stage, with the result that there were two rises. The opposite would occur when leaving the stage. The photographs confirm the evidence that the relevant step was not affixed to either the floor or the stage. One photograph shows the box to be sitting away from the side of the stage by what appears to be a distance of two or three centimetres and at a very slight angle to the stage. Mr Wren was shown photographs of the step and thought that it, meaning the top and sides, was "probably made out of 15 or 18 millimetre ply", and that it had "a softwood… frame underneath". He said that whether it had a brace in the middle would "depend on the length of the step", but he could not remember, and had no record of, the dimensions. He did not weigh the step although he agreed the softwood frame would have been relatively light. He doubted that he would have put anything on the base of the step where it contacted the concrete floor, like felt or rubber pads, although he could not remember. David Pepperell, a former teacher, was employed by the defendant to work in the Centre between 2008 and 2016. He agreed that there was no step onto the stage when the Centre was opened and steps were built by Mr Wren later. Mr Pepperell confirmed that the step was not fixed to the stage or the floor so it could be "moved around if necessary". He said he was "pretty sure" that there was felt on the bottom of it so it could be moved around and to "stop it slipping" and, although it could have been moved by one person "with care", "two people would be better because it was fairly solid, heavy and just all too awkward to lift".
13 Although precision is not possible, some findings can be made about the approximate dimensions of the step. Some photographs, including those taken after later modifications, allow comparison with the agreed height of the stage.
14 The step is about half the height of the stage. I find the height (or rise) of the step to be about 190 millimetres. The result was that the rise from the tread of the step to the surface of the stage was roughly the equivalent distance. The depth (or run) of the step tread is more difficult to estimate from the photographs. It is marginally greater than the height. A minute of a meeting of the board of the defendant, held on 13 October 2013, records the height of the step as 185 millimetres and the depth of the tread as 280 millimetres. Those measurements are consistent with my observations and accordingly, doing the best I can, I would find the depth of the step to be around 280 millimetres.
15 However, the length or width of the step in use on 4 October 2013 is contentious. The plaintiff's contention is that the length of the step was no greater than 600 millimetres. The defendant contends that the step was at least a metre wide. The issue is relevant because the plaintiff argues, I think consistently with common human experience, that the smaller the length of the step the greater
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was the likelihood that it may tip as she described. A number of witnesses gave evidence about the length of the step. Mrs Carleton said that it was "kind of as wide as me" and gave an indication of the width by gesture. When asked to explain the width in terms of millimetres, she said "about 600 mil", which I observed to be consistent with her gesture. Katherine O'Donnell, a legal practitioner, attended the conference. She was then employed as a legal officer by the Department of Education and was on the board of ANZELA. She helped Mrs Carleton and Mrs Bennet prepare for the conference. She had occasion to take notice of the step on 3 October 2013, the first day of the conference, because, she said, she saw the Governor stumble on it as he left the stage on that day. She described the step as being "not a lot wider than a person." She said: "I don't know if that's half a metre or a bit more than that, but, yes. And from my recollection, it felt higher than it was wide, if that makes sense. Measurements are not my forte." Ms O'Donnell's estimate of the width of the step was consistent with Mrs Carleton's estimate. The force of her description is added to by her comparison with the width of a person. Ms O'Donnell was not further examined about what she meant by describing the step as "higher than it was wide". She may have been referring to the height as compared with the depth (or run). I think it very unlikely that she was suggesting that the width of the step in the sense I have described, but if she was, she was obviously wrong.
16 David Pepperell's memory was that, prior to Mrs Carleton's fall, the step was about a metre wide. Karel Fontaine was a volunteer at the Centre and was then employed as receptionist in around 2012. She was familiar with the step and, when asked to give an indication of its length, she gestured by holding her hands out "well beyond" each shoulder, and said that it was "quite long". According to Mr Aflatooni, the step was "at least a metre" wide.
17 For the following reasons I find, consistently with the plaintiff's case, that the step was no greater than 600 millimetres wide. Mrs Carleton's evidence was, in my assessment, strongly corroborated by the photographs. The photographs of the step in the form it existed at the time of her fall, exhibit P1 photographs 41, 42 and 43, depict a step which appears to be much shorter than a metre. One of those photos was shown to Mr Pepperell who said that he was not able to make any estimation from it. He agreed that there were a "couple of iterations" of the step. I will return to what I took him to mean by that. It was argued by the defendant that the perspective of the view of the step in those photographs made it appear shorter than it was. Mr Aflatooni was shown photograph 41, and asked about the length of the step it depicted. He said "I can see that the shot is taken from the side and it appears to be distorting the length because the length of that …step was a metre or more and this doesn't to me, look like a metre". He said "it could just be the way that … the photo is taken". I am satisfied that is not so. In photograph 43 in particular, the side of the stage is shown in much the same perspective and a useful comparison can be made with the agreed stage depth of 2.337 metres. Mr Aflatooni was correct, in my view, to say that the step, in the photograph, did not look like a metre. The reason for that is, I am satisfied, that it was in fact much less than a metre. His comment about the perspective of the photograph was an attempt to justify his incorrect recollection.
18 Further support for my conclusion about the length of the step is found in other photographs taken later. These depict the other "iterations" referred to by Mr Pepperell. Mr Aflatooni gave evidence that he was told that Mrs Carleton fell when the step "moved". He had no means of knowing whether the step moved or not, but what he was told explains why he immediately arranged for either Mr Wren or Mr Hall, he could not remember which, to fix the step to the stage. Mr Wren had no memory of doing so. Mr Hall was not called to give evidence. Leanne Newson attended the conference. At the time she was education officer for the Law Institute of Victoria, and was secretary and treasurer of ANZELA. Later on 4 October 2013, after Mrs Carleton had fallen, Ms Newson saw workmen fixing a step to the side of the stage. She thought it was probably before lunch on that day. Photographs are in evidence, as exhibit P1, photograph 45, and exhibits P18 and P19, which depict the step after it had been fixed to the stage with metal brackets. Those photographs show a step which is obviously longer than the step shown in the earlier photographs. That is so because, I find, what was
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affixed to the stage was the two steps put together lengthwise. When the proposition that photo P1, photograph 45, depicted two boxes joined together was put to Mr Pepperell he answered that he could not say one way or the other. When Mr Aflatooni was shown photograph 45 he described the suggestion that it was two steps put together as "absolutely wrong." I reject that evidence. I find that Mr Aflatooni's evidence about the length of the step at the time Mrs Carleton fell is incorrect. That may be so because of what I observed to be a tendency in his evidence to justify the actions and position of the defendant, and possibly also because his memory of that step has been affected by his memory of the length of the step after the modification was completed. Photographs, which became exhibits P18 and P19, were introduced into the evidence during cross-examination of another former employee of the defendant, Karel Fontaine. They support the proposition advanced by the plaintiff that the modifications undertaken as a result of what occurred on 4 October 2013 involved fixing two steps, not one, to the right side of the stage. In those photographs, especially exhibit P19, the join between the two steps can clearly be seen. The result is, I find, that the length of the step in place when Mrs Carleton fell was half the length depicted in those post modification photographs. What was put in place after Mrs Carleton fell is more consistent with the length of the step recalled by Mr Pepperell and Mr Aflatooni.
19 More modifications to the step were undertaken as a result of a decision taken at a meeting of the board of the defendant on 13 October 2013. The minute of that meeting relevantly contains the following note:
"Janelle Carleton…fell off the step coming down from the stage at about 8.30 am.
...
Remedial action was decided to address the width and dimensions of stairs, securely fix the stairs to the stage, make new stairs full width and add a handrail. The stair riser is 185 mm and is ok. Tread is 280 mm and is ok. It was decided that new full width steps should be made and fixed securely to stage with aluminium nosing strips non- slip along the side edges and front edge of stage. The hand rail should be aligned with inside face of the lectern…Stuart will arrange to meet Phil Wren on site and provide instructions to him on Wednesday."
20 Although the minute is somewhat ambiguous, it is consistent (at least not inconsistent) with my finding that an adjustment to the length of the step was made when it was first fixed to the stage immediately following Mrs Carleton's fall, with yet further modifications then decided upon as recorded in the minute. Photographs of those further modifications are in evidence and depict a step constructed for the full depth of the stage, secured to the side of the stage, with a handrail and aluminium nosing strips affixed to the edge of the stage and the new step. The step is of equivalent height and depth but is obviously newly constructed and appears not to include any component of what had previously been in place for use as a step.
21 Having made findings about the characteristics of the step which accords with Mrs Carleton's evidence, I turn to a more general assessment of the credibility of her account, in particular about why she fell. I found Mrs Carleton to be an impressive witness. I accept her evidence to be honest and, with some qualifications, reliable. She demonstrated a clear understanding of what she was being asked while giving evidence. She gave clear, confident and responsive answers, including when cross- examined. She made appropriate concessions but maintained her position when necessary.
22 At the time Mrs Carleton fell she was aged 49 and weighed, she said, about 65 kilograms. She was educated to grade 12. As a young person she was actively engaged in sport: athletics, netball, softball and ballet. In about 1983, when she was 19, she began a relationship with Mark Carleton. They married in April 1986. Mr Carleton was a fitter and turner who later became an engineer. At around the time of their marriage, and with the assistance of her father who was a builder, they built a house for themselves. In the course of the construction of the house and the landscaping she did a
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good deal of the labouring work. Mr and Mrs Carleton had two sons who were, at the time of her fall, aged 19 and almost 14. The younger of the two had special needs. Mrs Carleton, despite the demands on her time, remained physically active, both by herself and with her family, throughout the period until 2013. In the course of her marriage she and her husband took up golf and were keen participants. They were also frequent sailors on a small catamaran they transported on a trailer, as well as occasionally on another larger yacht. After leaving school Mrs Carleton had a broad range of employment experience and, subject to the time taken away from work when her children were younger, consistently held employment involving a good deal of responsibility.
23 The combined result of such matters led me to conclude that Mrs Carleton had, including at the relevant time, a very good ability to observe, judge and describe her actions and surroundings. For example, although, until she fell, Mrs Carleton had no particular reason to take careful note of the width of the step, I found her description of what she saw and felt to be very persuasive.
24 The defendant's challenge to Mrs Carleton's account was made on two particular related fronts, both relevant not only to her direct evidence about her fall but also to her credibility generally. Firstly, it was suggested that she fell, not because the step tipped, but because she missed the step by not looking at where she put her foot. Secondly, there was a dispute about what type of shoes she was wearing which, by implication, may have contributed to her missing the step. I will address the latter issue first. Mrs Carleton's evidence was that she was wearing a pair of low comfortable shoes. She said she kept the shoes which were produced and introduced into evidence. They were a slip on style with a flat and flexible rubber sole extending for the entire length of the shoe, and only very slightly raised under the heel. Mrs Carleton said that she wore those shoes at work because they were "very, very comfortable and practical".
25 It was suggested to Mrs Carleton in cross-examination that she gave untruthful evidence about the type of shoes she was wearing to strengthen her claim. It was put to her that she was not, when she fell, wearing those flat shoes but rather was wearing a court shoe with a three inch heel. She rejected the suggestion as "totally incorrect". When asked whether she would countenance the possibility that she may be mistaken, she answered: "Absolutely not, because I never wore shoes like that in event management." She had earlier been questioned about what clothing she was wearing and the need for her to be "smart, professional, well presented, [and] well dressed." It was implied to her that the type of shoes she described was not consistent with such presentation. She answered that "[m]y low shoes and black trousers and work shirt and cardigan are smart, professional and practical". She added that the shoes were professional "for conferencing when you are on your feet all day".
26 The suggestion that Mrs Carleton was wearing court shoes with a three inch heel derived from the evidence of Ms Fontaine. Ms Fontaine gave evidence that she had seen Mrs Carleton wearing a court shoe. Ms Fontaine described a court shoe as being a slip on shoe with closed toe and a separate raised heel. After Mrs Carleton fell she was taken to the children's room. Ms Fontaine gave evidence that she spent time in that room with Mrs Carleton. Mrs Carleton could not remember that but I have no reason to doubt Ms Fontaine's evidence on that subject. They both agreed that Ms Fontaine then took Mrs Carleton to the hospital and spent a number of hours with her there. Ms Fontaine gave evidence that she remembered Mrs Carleton at the conference to have been wearing, she thought, a blouse and a blazer, and "regular court shoes". She said that they were a standard court shoe with a heel. She was shown a pair of sample shoes. Although she said that the shoes she was shown were different than court shoes, Ms Fontaine said that they had a heel of similar height to the shoes she saw Mrs Carleton wearing. Those shoes had a heel which was consistent with the three inch heel suggested to Mrs Carleton in cross-examination.
27 I prefer the evidence of Mrs Carleton. As I have already stated, I found her to be an honest witness. She was certain in her evidence about the type of shoes she was wearing on 4 October 2023and adamant that she did not wear court shoes to work in event management. Although I have no
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reason to doubt Ms Fontaine's honesty, I am satisfied that she is mistaken in her recollection of Mrs Carleton wearing a court shoe. She accepted in cross-examination that she also had a recollection of Mrs Carleton wearing different flat shoes, like the ones in evidence, at other times, including when she and Mrs Carleton went to the hospital on that day. She did not see Mrs Carleton fall and was not able to say what shoes she was then wearing. She accepted that on another occasion she had seen Mrs Carleton in the children's room with a pair of court shoes on the floor but not being worn by Mrs Carleton. She may have mistakenly assumed that the shoes were Mrs Carleton's.
28 I find that, when she fell, Mrs Carleton was wearing the low shoes she described and which are in evidence. I record my view, however, that even if she had been wearing the type of shoes described by Ms Fontaine, it is unlikely to have made any difference to my conclusion about the cause of her fall and whether the defendant breached a duty to take reasonable care for her safety.
29 In cross examination it was suggested to Mrs Carleton that she did not fall because the step tipped, but because she misjudged where she placed her foot and "missed the step". The following exchange occurred with counsel for the defendant:
"See, what I'm suggesting to you is when you gave that evidence about putting your foot, whichever it was, on the step when you fell, you weren't looking at your foot, whichever one it was, when you did that?......That's not correct.
You were looking at your foot?......No, I – I believe I looked down to see where the step was, and then put my foot on it.
So you made an assessment, a judgment about where the step was, is that fair, and then you stepped to where you believe it would be?......The step wasn't exceptionally wide so, I checked that I was stepping onto the step before I put my foot out.
And you didn't put your foot on the centre of the step, I suggest, as you got off the stage?......I put my foot where it landed.
You don't know where it landed, do you?......It would not have been at the front of the step
You don't know where your foot landed, do you?......I placed my foot on the centre of that step.
And you saw that, did you?......Well, I looked down as I put my foot down."
30 And further:
"I'm putting it to that you – that you didn't put your foot in the middle of the
step?......And I'm saying that I did.You are saying that? Yes. Is that your evidence? Is your evidence that you put your foot squarely in the centre of the step when you got down?......Squarely in the centre of the step.
That's your evidence?......I'm just trying to fully understand. I placed my foot securely on that step.
I see. The probabilities are, I suggest, that you didn't and instead you put – you overshot and you've hit the edge in whatever shoes you were wearing and you've fallen because you misjudged it. That's what I'm suggesting?......And I'm suggesting
that I safely walked down those stairs, as safely as I could and – and I'm just not sure
how much – how many more times –HIS HONOUR: Well, what Mr Cox is putting to you is that you fell because – not because the step tipped because – but because you missed the step.
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WITNESS: No. No. It tipped. It definitely tipped on me. I didn't miss the step."
31 It is clear from the terms and context of Mrs Carleton's evidence, that what she intended to convey when she said that the step tipped, was that it tipped forward, as she said in her evidence, in the direction of her travel, not to the side.
32 My assessment of the credibility and reliability of Mrs Carleton's evidence extends to her account of why she fell. I believe her evidence that she felt the step tip and that she fell because it did tip. Her account was, I find, inherently plausible. Conversely, I regard the possibility that she fell because she somehow missed the step for no reason other than inadvertence or inattention to be implausible. I find it unlikely that a person with her physical capacity and judgment would miss the step so badly as to cause her to fall from a single step as heavily as she did. I find her description of the manner of her fall to be consistent with her account. She described "slamming" into the concrete floor. That suggests a forward momentum consistent with the step tipping and less consistent with her overstepping. I also find the dimensions, as I have found them to be, and weight of the step to be consistent with it having tipped as Mrs Carleton described. As Mr Wren explained, it was of relatively light weight construction. Nothing in the passage of cross-examination just quoted about where Mrs Carleton's foot may have been placed on the step that leads me to doubt the conclusion I have reached, even if, contrary to the assertion she made in her evidence, her foot was towards the front of the step. I think that there is some room for imprecision about where Mrs Carleton's foot was placed on the step. Mrs Carleton described, when pressed, placing her foot securely in the centre of the step and not at the front of the step. She had earlier said that her work was calmer and less busy on 4 October than it had been on 3 October, the first day of the conference, inferring that she had no need to hurry. What Mrs Carleton meant by the centre of the step as opposed to the front of the step was not examined in detail. I have found the tread depth to be around 280 millimetres. It is unlikely that her foot would have been hard against the back of the step. I think that it is inevitable that part of her foot would have been towards the front of the step. Even if she was not hurrying, it is likely that she was walking at a purposeful speed. It is consistent with human experience that anyone walking down a step would have forward momentum, and would be more likely to place his or her foot towards the front of the step. It is possible that part of her foot may even have been over the front edge. In my experience it is entirely secure and natural to place the ball of one's foot on or towards the front of a normal step when descending, even if the toes may extend over the edge. As I will further explain, a person in Mrs Carleton's position was entitled to assume that the step she was using was stable and secure. I find that the combined result of the physical characteristics of the step as I have found them to be, her forward momentum, the likely position of her foot on the step and the traction from the shoes she was wearing to be entirely consistent with her account of the step tipping as she stepped onto it from the stage. I find that the plaintiff fell not because she missed the step or because of the type of shoes she was wearing, but because the step tipped away from her in the direction of her travel when she stepped on it.
Liability for the plaintiff's injury
33 In light of those factual findings I turn to address the liability of the defendant. The plaintiff's statement of claim, as amended at trial, alleges eight particulars of negligence, that the defendant:
(a) failed to affix the step to the stage or to the floor adjacent to the stage; (b)
failed to devise and have in operation a system whereby the step could be locked to the floor of the centre adjacent to the stage, or fixed to the stage, such that it would not move or flip when stepped upon;
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(c) failed to assess the risk of personal injury to persons using the centre by reason of the existence of the unsecured step and take appropriate measures to prevent the risk of injury to those persons; (d) failed to warn the plaintiff that the step could move or flip suddenly when weight was applied to it; (e) failed to erect and maintain signs or other warnings to indicate that the step:
(i) was not affixed to floor surrounding the stage; and/or (ii) could fall over suddenly; (f) failed to warn the plaintiff that she was in a position of peril; (g) failed to conduct an adequate risk assessment or safety risk analysis process of the defendant's premises in accordance with the Code of Practice under s 274 of the Work Health and Safety Act 2012 entitled "How to Manage Work Health and Safety Risks Code of Practice" authorised by the Minister under the Act; (h) failed to ensure the stage and steps were constructed and maintained in accordance with drawing number "ASBUILT – A110" revised on 18 April 2012, and in particular, the defendant failed to ensure that two steps were constructed and maintained and that both steps were abutting the interior wall of the defendant's premises.
34 The plaintiff was a lawful entrant to the defendant's property, having been invited there pursuant to the agreement that the premises would be used for the conference. There is no dispute that the defendant, as occupier of the property with direct control over the state and condition of the building, owed her a duty "to take reasonable care to avoid a foreseeable risk of injury": Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7, 162 CLR 479 at 488. Principles of liability for the plaintiff's injury are to be determined in accordance with the Civil Liability Act 2002. By s 11(1) of that Act a person does not breach a duty to take reasonable care unless:
(a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.
The plaintiff characterises the risk of harm as the risk that a person using the stage may fall and suffer harm when entering or exiting the stage by means of an unfastened wooden box. Identification of the risk enables assessment of its foreseeability, its significance and the reasonableness of precautions which are alleged to be required to address that risk. The defendant submits that formulation of the risk which includes reference to an "unfastened wooden box" is "infected by hindsight". However, it concedes that there was a risk that a person may fall from the stage or the step and that, in that event, the person may suffer significant harm. In this case I do not consider the difference in the respective characterisations of the risk as to be a matter of any moment in consideration of the plaintiff's case. The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred but need not be confined to the precise set of circumstances in which the plaintiff was injured. The respective characterisations advanced by the parties are statements of risk at different levels of abstraction. What must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature
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of the circumstances in which that harm was incurred. I would respectfully adopt the principles stated by Wood J in Dann v Port Sorell Bowls Club Inc [2020] TASSC 47 at [108] and following, citing Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCCA 320, 91 NSWLR 752 at [102] per Leeming JA, Erickson v Bagley [2015] VSCA 220 at [33] and in Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at [55].
36 The risk that the plaintiff may fall and injure herself when using the step from the stage was plainly a foreseeable one. The test of reasonable foreseeability is "undemanding": Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 per Mason J. The risk is to be assessed prospectively, and not with the benefit of hindsight. The defendant correctly points out that not every foreseeable risk calls for a response. One case concerning the risk posed by stairs was Wilkinson v Law Courts Ltd [2001] NSWCA 196 which concerned an action brought in negligence by a man who had tripped and fallen on stairs leading down from the door of the Law Courts Building to Phillip Street in Sydney. The plaintiff's action against the occupier of the building was unsuccessful at first instance and an appeal to the New South Wales Court of Appeal was dismissed. The leading judgment was written by Heydon JA. His Honour summarised the evidence that the steps were obvious in appearance, their edges were clear, there were not many of them, and dimensions and variations in the step sizes were not shown to create any danger or create any inadequacy if they were properly used. His Honour then said at [32]:
"Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: 'persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety'": Stannus v Graham [1994] HCA 46; (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA."
37 His Honour continued at [33]:
"The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury."
38 Another more recent case referred to by the defendant was Russell v Carpenter [2022] NSWCA 252. In that case the plaintiff and his friends were staying in a short-stay holiday rental property as part of a golfing weekend. He took one step down a set of three helical stairs from a deck in pursuit of a golf ball he had dropped. As the ball of his right foot landed on the first step down, he slipped on the edge, fell and injured himself. The principal complaint was that there was no handrail. Kirk JA, with whom Meagher JA and Gleeson JA agreed, stated at [44]-[45]:
"The photographs of the stairs, such as that reproduced at [6] above, depict an entirely unremarkable set of short outside steps. The argument that the law of negligence required these stairs to have a handrail on the outer side has an air of unreality. It may well be that erecting a handrail would not have been terribly expensive, although there was no evidence on the point. But if a handrail was required for these steps to avoid a breach of duty, it would be required for countless other such short sets of helical steps in houses around the country. That requirement would not be limited to houses near the beach, because the fact that the steps may have been wet from sea spray did not render the steps slippery. The fact that the Building Code of Australia did not mandate a handrail for this type of stairs supports the conclusion that reasonable care did not require such a precaution.
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Further, if this type of risk required precautionary measures of the kind alleged, no doubt many other risks around the house might fall into a similar category of presenting slight and obvious risks. The costs of addressing all such risks may well be material. And the precautionary measures may be intrusive or unappealing. The law does not require that resources be spent on risks such as those at issue here which are slight, inherent and obvious. Life is not required to be lived surrounded by cotton wool."
39 As to whether the risk was "not insignificant" within the meaning of s 11(1)(b), that provision does not set a high threshold: Russell v Carpenter at [20]. As was accepted in that case at [21] it can be accepted that the risk of a person slipping (relevantly to that case) on the stairs and injuring themselves was not insignificant, because it is a risk which attaches to nearly all stairs. In those cases, and in this case, the real question is the one which arises under s 11(1)(c), namely whether in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.
40 Mr Pepperell said that between 2009 and 2013 he observed the step being used by all manner of people, including women wearing high heels. He said "we never had any problem" and that, although the Centre had facility in a diary to keep a record of any reported incidents, Mrs Carleton's fall was the only incident ever reported as far as he was aware. There was a form for reporting hazards but he had never completed one and, to his knowledge, there had never been any report lodged concerning the step prior to Mrs Carleton's fall.
41 Mr Wren's evidence was that he took pride in his work as a carpenter and, when he built the step, he thought it was sturdy and "fit for purpose".
42 Ms Fontaine said that the stage was used on a "daily basis", that "hundreds of people" had used the step before Mrs Carleton fell, and that she used the step herself regularly to get on and off the stage without difficulty.
43 Mr Aflatooni gave evidence that there was no incident which prompted the request to Mr Wren to build the step in 2009. He relied on Mr Wren's skill as a carpenter to construct it. Mr Aflatooni estimated that between 2008 and 2013 "hundreds if not thousands of people" had used the facility, that "hundreds of people" had used the step and "nothing has happened." According to Mr Aflatooni, Stuart McKenzie Hall, the architect and construction manager for the project, later assumed the role as work, health and safety officer for the Centre. Mr Hall did not give evidence but, Mr Aflatooni produced a report of a risk assessment undertaken by Mr Hall at the Centre on 22 August 2013. The document is prepared from a risk assessment checklist template which required assessment of the premises in the categories of layout, environment, emergency response, first aid facilities, workstation ergonomics, general facilities, manual handling, environmental issues, electrical safety, and other. As to layout, the assessment indicates only that the area is tidy and well kept, the floor is free of obstructions and the floor coverings are in good condition and there is no trip hazard other than in an entry door. There is nothing in the report to indicate that the step from the stage from which Mrs Carleton fell presented a risk or hazard, but, conversely, there is nothing to indicate that it was examined or assessed. There is some evidence that other risk assessments were undertaken from time to time but no evidence that any of those assessments identified the step from the stage as a risk.
44 The defendant also submitted that Mrs Bennett, as principal of the plaintiff's employer, inspected the premises a year earlier and again on 2 October 2013 and "deemed it fit for purpose".
45 The defendant's primary submission is that, in those circumstances, the risk posed by the step was, adopting the language used by the Court of Appeal in New South Wales in Russell v Carpenter, slight, inherent and obvious, and that the exercise of reasonable care did not require the defendant to take any of the precautions suggested by the plaintiff to avoid the risk. The submission should not be
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accepted. For similar reasons I do not accept that the defendant's further submission that characterisation of the risk posed to the plaintiff by the step by reference to being unfastened, is infected by hindsight. In this case the circumstances in which the harm occurred should include reference to the fact that the step was, to the defendant's knowledge, unfastened. In my view it is relevant both to the nature of the risk to which the plaintiff was imposed and to the appropriate response to the risk.
46 The conclusions reached in Wilkinson v Law Courts Ltd and in Russell v Carpenter do not assist the defendant. Those cases involve application of principle to the particular facts and circumstances being considered. Both concerned steps which were variously described as unremarkable, not shown to create any danger or create any inadequacy if properly used and posing a "slight and obvious risk". However, in considering what the reasonableness of the defendant's response to the risk posed by the step in this case, the magnitude of the risk posed and its degree of probability was much greater than in either of those cases. I have found, as a matter of fact, that the step tipped when Mrs Carleton walked on it. It tipped because of its dimension and the nature of its construction, in other words, its size and weight. Contrary to the defendant's submission, it was not a step which was "entirely fit for purpose if used in the ordinary way." The submission is predicated on the assumption that the step did not move when stepped on. Mrs Carleton was to be expected to take reasonable care for her own safety, but I find that the manner in which she used the step was proper. She did nothing that a person in her position would not ordinarily do when using the step. In any event, the measure of care required of the defendant was to take into account that the step may be used by persons of varying height, weight, at different speed of travel and differing placement of feet on the step. Mrs Carleton was not running, but even if she had been, that is something which ought to have been in the reasonable contemplation of the defendant. If a person missed or tripped on a fixed step because he or she was running or not paying sufficient attention, the case would likely fall into the category of cases such as Wilkinson v Law Courts Ltd and Russell v Carpenter. However this was not such a case. Here, the unfixed character of the step gave rise to the risk of injury even when it was properly used. As I have already explained, it was to be expected that persons using the step may place his or her foot on or near the forward edge of the step when walking down which, combined with forward momentum, gave rise to the risk that it would move or tip. It was the type of risk the defendant should have responded to by securing the step. Mrs Carleton had no means of knowing, and no ability to observe, that the step was not fixed to the floor or the stage and no way of adjusting her movement or step in anticipation that this may be the case.
47 I do not regard the absence of any prior incident involving the step, even if true, as absolving the defendant from the obligation to respond to the risk posed by the step in a different way. In common parlance, given the dimensions and construction of the step and the fact that it was not fixed to the stage or the floor, it was an accident waiting to happen. To my mind, the risk that the step which was only about 600 millimetres wide, of relatively lightweight construction and not somehow fixed in place may tip or move when walked on, as I am satisfied it did, should have been obvious to any reasonable and prudent observer before Mrs Carleton fell. I do not doubt that Mr Aflatooni's expression of concern on behalf of the defendant about workplace health and safety matters was genuine, but this was a risk which should have been identified and was not. Mrs Carleton fell because the defendant failed to fix the step to the stage or the floor. It was a simple and inexpensive matter to have done so, and would have avoided the risk posed by the step. I find that a reasonable person in the defendant's position would have taken that precaution. In circumstances where the material risk arose from the fact that the step was unsecured and able to move or tip, the likelihood of serious harm was not low. Movement or tipping of the step would very likely lead to a loss of balance and the risk of a heavy fall onto a concrete floor. I regard the defendant's contention that fixing the step would have unduly impeded the defendant's ability to utilise the Centre to the benefit of the community because it might have reduced the flexibility of the portable stage, was quite unjustified on the evidence. The
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evidence was that the stage was rarely moved in any event. It would have been just as easy to unfix
the step as it was to affix it.48 In terms of the pleaded particulars of negligence, I find that particulars (a), (b) and (c) are made out. The particular alleging a failure to warn that the step might move or tip is also made out, but adds little to what I regard as the principal breach, that is the failure to fix the step so it would not move.
49 I am satisfied that the defendant's breach of duty caused Mrs Carleton to fall. I find that she would not have fallen if the step had not moved under her foot and the step would not have moved had it been fixed in the manner suggested by the plaintiff. As such, the breach of duty was a necessary element of the occurrence of the harm as required by s 13(1)(a). It was also appropriate for the scope of the liability of the defendant to extend to the injury she suffered as a result of the fall: s 13(1)(b).
50 For completeness, I find that it was not negligent for the defendant to fail to construct the step in accordance with the drawing referred to in paragraph (h) of the particulars of negligence. The defendant was under no duty to build a step in accordance with that drawing. In the plaintiff's written submissions it is asserted that the step did not comply with the Building Code of Australia. The alleged non-compliance is that the "stairway" did not have slip resistant surfaces of stairway treads or near the edge of the nosing and there was no "handrail". The defendant, in closing submissions, objected to a claim on the basis of alleged non-compliance with the Code on the basis that such facts as to form the basis of the allegation were not pleaded. There is no pleaded cause of action for breach of statutory duty. I have found it unnecessary to resolve the matter because, regardless of whether the claim should have been pleaded, and regardless of whether the Code applied to this building and this step, the allegations do not advance the plaintiff's claim. She did not fall because of the absence of a non-slip surface or edge. She would not succeed on the basis of such an allegation. She did not fall because of the absence of a handrail. A handrail may have enabled her to save her fall, but it was not the primary cause, and she is entitled to succeed in her claim in any event for the reasons I have explained.
Contributory Negligence
51 The findings I have made mean that the defendant's claim of contributory negligence must also fail. A finding of contributory negligence is a finding that a person contributed to his or her own injury by failing to take reasonable care for his or her own safety. The Wrongs Act 1959, s 4(1), provides that the damages recoverable by a person injured partly as a result of his or her own wrongful act "shall be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage." The test for contributory negligence is an objective one, to be determined having regard to all of the circumstances of the case: Joslyn v Berryman [2003] HCA 34, 214 CLR 552. The Civil Liability Act, s 23, provides:
"23 Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent for the purpose of apportioning liability under section 4 of the Wrongs Act 1954.
(2) For the purpose of apportioning liability under section 4 of the Wrongs Act
1954 –
(a)
the standard of care required of the person who suffered harm is that required of a reasonable person in the position of that person; and
(b)
the matter is to be determined on the basis of what that person knew or ought to have known at the time."
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52 I find that Ms Carleton did not depart from the standard of care required of a reasonable person in her position. There was nothing about the way she used the step which justifies a finding that she failed to take reasonable care for her own safety. She used it just as the defendant should have expected that she may use it. It was not negligent for her to put her foot towards the front of the step as she stepped on it. Her fall was not contributed to by the type of shoes she was wearing. Even if she had been wearing the type of shoes asserted by the defendant that would not have amounted to a failure to take reasonable care for her own safety.
Damages
53 The plaintiff claims damages in the following categories: general damages for pain, suffering and loss of amenity, past and future lost earning capacity, loss of future superannuation, past and future medical expenses, and for services gratuitously provided by her husband and sons.
54 The nature of the injury suffered by Mrs Carleton in the fall is not in substantial dispute although some aspects of the extent of the ongoing effects of the injury are in issue. The following description is relevant to each category of damages. Mrs Carleton's evidence was that she fell on to her right side, hitting her right arm and hip. She said in the momentum of her fall her left hand came across her and slammed into the concrete. She immediately felt a searing pain in her right hand because it had "really slammed into the concrete". As she started to get up she felt pain to the left side of her neck, down her arm and into her shoulder blade. Ms Zigouris took her to the children's room and then Karel Fontaine took her to the emergency section of Calvary Hospital. She was seen by a doctor at 12.15 pm. She was experiencing pain on her left side, in her neck, left shoulder and arm extending down into her hand and fingers, and pins and needles in her shoulder blade. Medical examinations were undertaken and she was prescribed medication, Endone and Valium, for pain and to help her rest. She returned to Brisbane the following day. After a couple of days she consulted her general practitioner with symptoms which by then included dizziness for which she was prescribed medication. She was away from work for about two weeks, following which she gradually returned. She was not able to drive for six weeks.
55 In the period following and since the fall Mrs Carleton has experienced pain and restriction of movement in her cervical spine especially on the left side of her neck, pain and reduced strength in both arms but principally on her dominant left side, numbness in her left arm and pain in her shoulder and shoulder blade area. From October 2013 she kept a treatment log which continued until 2023. It records that in 2013 and early 2014 her treatment was managed by her general practitioner and with physiotherapy. According to her husband, Mark, the plaintiff was "not in a good place straight after the accident". She needed help with any activity which required her to use or elevate her left arm, for example washing her hair. Her symptoms persisted. In May 2014 she was referred to an orthopaedic surgeon specialising in treatment of the spine, Paul Licina. Dr Licina did not give oral evidence but reports he wrote form part of the agreed court book. When he saw Mrs Carleton in May 2014 she described to him pain in her neck at the base of her cervical spine on the left side extending to the posterior shoulder. She had pain in her upper back, pain and weakness down the left arm and tingling in her hand. Dr Licina noted that the plaintiff demonstrated a reduced range of cervical movement and had "features of a C7 radiculopathy with weakness of elbow extension and diminished triceps reflex". The pain in her shoulder suggested an injury to her rotator cuff. Dr Licina reported that an MRI scan showed a "large left sided disc prolapse at C6-7 compressing the left C7 nerve root" and that an ultrasound confirmed the "rotator cuff pathology". He diagnosed the plaintiff as suffering left arm pain secondary to a cervical disc prolapse and a "suggestion of minor rotator cuff pathology". He recommended a nerve block injection and, if that was not effective, surgery in the form of an "anterior cervical discectomy and fusion".
56 Dr Licina next saw the plaintiff in November 2014. The nerve block he had performed had been effective although the pain had returned "at a lesser level". He ordered a further steroid injection.
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He reviewed the plaintiff in April 2016. She complained of a flare up of the pain in her upper back with "prolonged sitting, computer and mouse work and physical activity". Dr Licina noted that by this time a recent MRI showed "complete resolution of the disc prolapse and no new problems." He recommended management of her condition by stretching, exercise and remedial massage, with additional treatment when she "has a flare", but that she "will always have some mild residual problems". In August 2016, when Mrs Carleton complained of continuing left arm symptoms, Dr Licina recommended and organised for her to see Dr Brendan Moore for facet injections, probably at C5-6 and C6-7 and "maybe a cervical epidural".
57 At trial the defendant relied on reports prepared by a consultant orthopaedic surgeon, Dr Richard Williams. Dr Williams did not give oral evidence either, but his two reports respectively dated 24 February 2016 and 13 April 2023, were in evidence. When Dr Williams examined Mrs Carleton in February 2016 she complained of persistent daily left sided neck pain involving the left scapular and her left tricep to the left forearm and into her index finger. Her level of pain varied between 3/10 and 8/10. According to Dr Williams' opinion as expressed in that report, her symptoms appeared consistent with the distribution of the left C7 nerve root and, although she had responded favourably to the injections she had received, the symptoms "appear to return…after a prolonged period." Dr Williams saw Mrs Carleton again on 13 April 2023. He noted that the CT and MRI undertaken in Hobart on 4 October 2013 demonstrated a left C6-7 discal prolapse in contact with the left C7 nerve, that the MRI of 25 March 2014 demonstrate the same prolapse, but the MRI on 19 April 2016 showed "resorption of the left C6-7 disc protrusion with no further evidence of neural compression". Dr Williams noted that, after Dr Licina decided that surgical treatment was not justified, Mrs Carleton was treated with corticosteroid injections and a cervical epidural injection, and had subsequently undertaken massage treatment, exercise physiology and physiotherapy as well as acupuncture, yoga and meditation. She continued to experience daily symptoms of left sided neck, scapular and shoulder pain. Dr Williams did not question the plaintiff's complaints of a "significant increase in pain in the left shoulder and arm" when she attempted to increase her work hours from 20 hours per week to up to 35 hours per week. Nor did Dr Williams cast doubt on the plaintiff's complaints of difficulty "sleeping and cleaning, including washing and vacuuming floors" leading her to use her right hand, rather than her dominant left hand, more frequently. As to future management recommendations, Dr Williams said that she would not benefit from spinal surgery. He expressed the opinion that he "would not consider that she is precluded from employment, although it seems problematic for her to work beyond 20 hours a week in her administrative occupation. This seems to be a long term likelihood given that the symptoms have now persisted for a decade."
58 The plaintiff relied on a report dated 20 March 2023 from an occupational physician, Dr Simone Scovell. Dr Scovell gave evidence and was cross examined. In Dr Scovell's opinion, Mrs Carleton presented with a whiplash associated disorder, permanent aggravation of an underlying multi-level discogenic pain of the cervical spine with ongoing upper limb radiculopathy, left rotator cuff dysfunction, ongoing chronic pain syndrome and a left trapezius injury. After undertaking the interventional pain management in 2015 and 2016 her pain and conditions had been managed by acupuncture, yoga, meditation, physiotherapy, exercise physiology and massage, beyond which she used simple analgesia and anti-inflammatory medication.
59 According to Dr Scovell, the plaintiff has:
"…needed to stop progressing her career, and return back to working 20 hours per
week as a baseline in an ergonomically optimised work from home environment."
60 Dr Scovell further expressed the following:
"In my opinion Ms Carleton has reached a position of maximum medical improvement. The prognosis is that she is likely to continue to deteriorate. Her
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determined attitude, good motivation and excellent work ethos has allowed her to remain at work, however in my opinion the writing is on the wall that in the very near and certainly foreseeable future there will be a continued deterioration of her ability to cope with the pain, and the chronic pain syndrome related to her neck, shoulder and other neck, trapezius and shoulder injuries dating back to the workplace fall of October 2013, and her work life will be prematurely cut short. It is admirable that her new employer is very cognisant of her workplace fall and subsequent injuries, and has been able to accommodate her in a working from home ergonomically optimised environment on a permanent part time basis, albeit reduced hours compared with her pre-injury hours, and certainly allowing Ms Carleton to avoid large conferencing set up work tasks, despite working in a conferencing type environment".
61 According to Dr Scovell it would be "no surprise to her" if Ms Carleton were to cease work altogether to try and best improve her pain management and quality of life.
62 Subject to the following discussion, I am satisfied that Mrs Carleton did not suffer from any physical or psychological impediment which, but for the injury suffered in 2013, was likely to have impaired her capacity to earn income to retirement.
63 When Mrs Carleton was in grade 8 she was diagnosed with scoliosis, a curvature of the spine. For about five years she was required to constantly wear a brace with the aim of reducing the extent of curvature. She described the demands of wearing a brace as "hard", but that she was committed to the process to avoid the alternative of surgery. According to Mrs Carleton, the treatment was effective. When she stopped wearing the brace she was able to return to a full and active life and her back did not impact or restrict her employment or family life. She returned to social sport and physical exercise. She was able to manage the heavy physical demands of labouring in the construction of their first home, albeit when she was still quite young. She and her husband both took up golf and became keen and regular players. She spent weekends looking after their home; cleaning, washing, mowing and landscaping. Before having children, she and her husband spent time sailing a small catamaran.
64 In late 1999, when her son Aaron was still a baby, Mrs Carleton was in a motor vehicle collision. A car she was driving was, when stationary, run into from behind by another vehicle. She was treated for a whiplash injury, including physiotherapy for "a couple of months" before her symptoms settled. She said that she was paid some monetary compensation to "cover the physiotherapy and just my time" and did not have any further problems with her neck. She said that she "continued on doing the things that she normally did for the next 13 years."
65 Following the birth of her first son, the plaintiff sought treatment from a physiotherapist for back pain which followed the birth. She undertook an exercise program. After Aaron was born she, to guard against the same eventuality, began regularly attending a gymnasium where she had a personal trainer. When Aaron was about three she and her husband set up a home gym with a treadmill, a stationary bike, a rowing machine and free weights. When her children were young she used her home gym while they were at school for exercise and strength training in between her working hours and school pick up.
66 Despite these historical circumstances involving her back and neck, I am satisfied that her capacity to earn was not likely to be affected by any inherent physical impairment of that character. Mrs Carleton was leading a busy and active life, she took care to stay fit and strong. I find that neither her scoliosis nor the effects of the motor vehicle collision nor the physical effects of the birth of her children were likely to have impaired her capacity to earn until retirement. Although her employment with Office Logistics was part time, she demonstrated a capacity to work long days on the occasions she was required to do so, usually associated with the conduct of the conferences she helped organise.
67 The defendant submitted that one of the "real contingencies" which must be contemplated is the plaintiff's pre-existing degenerative spinal condition, coupled with her long term scoliosis
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diagnosis. One other report in evidence was written by a consultant occupational physician, Dr Steven Goode. The report was dated 4 February 2017 and was written for the purpose of a permanent impairment assessment in accordance with the Queensland workers compensation assessment. The result of the assessment is irrelevant for present purposes but Dr Scovell was cross-examined about some of the opinions expressed by Dr Goode. In his report Dr Goode opined that "the cervical MRI on 4 October 2013 indicated that there were likely mainly chronic (ie not acute) changes causing Mrs Carleton's left C6-7 foraminal narrowing. Similarly in the MRI scan on 19 April 2016 showed multilevel discal degeneration. Therefore there was likely some antecedent multilevel cervical discal spondylosis/degeneration to generally predispose to a cervical disc prolapse." He then expressed the opinion that "Mrs Carleton's currently described symptoms are in fact suggestive of a left C5-6 radicular distribution which is difficult to reconcile with Mrs Carleton's previous imaging and clinical presentations."
68 Apart from Dr Goode's opinion prepared for a different purpose, there is little evidence which would justify a finding that the degenerative changes would have had any material impact on her earning capacity between 2013 and the present. Dr Scovell was cross examined about those factors. She agreed that the scans reported "multi-level disc degeneration" but did not agree that it would have been, or would have become, symptomatic. She did not accept the proposition that scoliosis would contribute to degeneration of the cervical spine. She did not accept the proposition that symptoms may have come from a different cervical spine level independently of the fall. Dr Scovell did not alter her opinion that the ongoing symptoms reported by Mrs Carleton were caused by the 2013 fall because, in her view, the whole of Mrs Carleton's cervical spine was "kind of aggravated." Moreover, Dr Williams seemed to accept a causal link between that incapacity and the 2013 injury. He said that this was "more likely" than having suffered the natural history of cervical spondylosis of a degenerative nature. Dr Williams expressed the opinion that the "incident" aggravated pre-existing cervical spondylosis, a condition which appears to have been previously asymptomatic. He continued by stating that the "aggravation is ongoing" and that Mrs Carleton "may have experienced symptoms in the last 10 years in relation to the underlying degenerative condition, however, this is impossible to determine with accuracy."
69 Mrs Carleton's evidence about the effects of her injury was consistent with her complaints to the medical practitioners. Her evidence and the treatment log tended to confirm the continuation of her symptoms from the time of the fall in 2013 to the present. I am satisfied that the injuries suffered by Mrs Carleton in the fall in 2013 were the cause of her symptoms from then until the date of the trial and continuing. It is possible that, as she aged, the effects of these earlier conditions and the degeneration at other levels of her cervical spine, may have affected her enjoyment of life and her capacity to earn. However, it is impossible to be precise. As to her lost earning capacity, I think it best to consider the possible effects of these other factors in the context of assessment of the discount for the vicissitudes of life and other factors.
Lost earnings – an overview
70 At the time she was injured, the plaintiff was employed on a part time basis. Following her injury she continued in employment on that basis. It was not asserted that the plaintiff is fully incapacitated from employment. However, her claim for lost earning capacity is based on the premise that had she not been injured on 4 October 2013 she would have, when her personal circumstances permitted her to do so in around 2015, commenced the equivalent of full time employment and remained in such employment until retirement at age 67. Her claim is that her injury prevented her, and continues to prevent her, from doing so.
71 It follows from the reasons already expressed that I am satisfied that at the time she was injured the plaintiff had the capacity to engage in full time employment. I am also satisfied that the effect of the plaintiff's injury caused by the defendant's negligence has impaired her capacity to earn
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the amount that she could have earned. The primary issue for determination is, in my view, whether the plaintiff would have fully exercised her capacity to earn independently of the consequences of the defendant's negligence then until a retirement age of 67. Examination of that issue requires further consideration of her personal circumstances and work history.
72 When Mrs Carleton fell on 4 October 2013 she was 49. By the time of the trial in November 2023, she was 59. She left school in year 12. After a year as an overseas exchange student she enrolled in a business degree at university but left during the first year to take up employment variously as a cadet accountant, a teachers' aide working with special needs toddlers and babies, a veterinary nurse and then as an accounts and administration clerk with P&O. She met Mark Carleton in 1983 when he was an apprentice fitter and turner. They planned to marry. He worked in a mine in Papua New Guinea for a period to save money to build a house. After he returned they married in April 1986. With the help of Mrs Carleton's father, who was a builder, they built and landscaped a home for themselves. Mrs Carleton continued to work for P&O until 1987 when she commenced a position as a full time accounts administration officer at Sharp Corporation. She continued that employment until her oldest son Bryce was born in June 1994. She agreed in cross-examination that, by then, she and her husband had paid off their house and borrowed money to purchase an investment property. Her husband returned to university, obtained qualifications in engineering and secured well paid employment.
73 After Bryce was born, after having just under a year away from work on maternity leave, Mrs Carleton commenced part time employment as a customer service officer at a packaging company. At first it was for limited hours, but after about two years her position developed into a training role which she continued until her second son Aaron was born in October 1999. Aaron had a number of serious health conditions which required special attention. Some details were given. As a baby he was troubled by serious and chronic tonsillitis but, by the time he was three, behavioural difficulties became apparent. He required lots of support and was later diagnosed with ADHD, an anxiety disorder and autism spectrum disorder. Because of the care Aaron required, Mrs Carleton did not return to work until around 2003 or 2004 when Aaron was 3 or 4 when she was able to put Aaron in day care. She began part time employment, three to four mornings a week, as a receptionist administrator in a physiotherapy practice. Around the same time she also began to work for Mrs Bennett's business, Office Logistics, on an ad hoc basis, performing administrative and data entry work for ANZELA. She managed that work around the care of Aaron when he was at home. Her work with Office Logistics gradually increased until she stopped working for the physiotherapy practice and
worked solely for Office Logistics.
74 Nevertheless, the hours she could work for Office Logistics were still restricted by the demands of caring for Aaron even when he began school. According to Mrs Carleton, it was not until 2009 that Aaron was sufficiently settled at school such that she was able to increase her employment hours and began to organise conferences. She organised the ANZELA conference each year between 2009 and 2013. She did other similar work for another entity, the Australia China Business Council (ACBC). Organisation of a conference generally began about a year before, but was particularly demanding and time consuming in the lead up to, and during, the conference itself. Her employment was mostly undertaken from home. Mrs Carleton's evidence was that she initially intended to go back to work "full time" after Aaron was settled into primary school. She explained why that did not occur in these terms:
"Unfortunately, that didn't go to plan. Aaron was very high needs, and I was regularly contacted by the school to come and get him through the school day. And it became clear that a full time job was going to be difficult to maintain at that time. So we worked with a developmental specialist with Aaron for a number of years. We had wonderful support through the schooling system. And by the time he got to about grade 6, he was really starting to improve. He was getting ready to go to high school,
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so we thought we'll get him into grade 8, get him settled in high school, and then I can
start to ramp up my hours."
75 On the plaintiff's evidence, Aaron did not reach grade 8 until 2013, the year Mrs Carleton was injured. She was injured in October of that year but there was no evidence of any attempt to "ramp up her hours" prior to then. She was cross-examined about his progress in and following 2013 and gave evidence as follows:
"Year 8 was turning out really well. He had to be very independent, had to travel on a train with a lot of other boys. He went to a boy's school and we weren't sure how that whole scenario was going to go, because there's a lot of testosterone and he had behavioural issues. But the school was great, and he was getting settled, and I was ready to launch into a while new phase of my life.
And did he continue to have behavioural issues?......He was under the care of a developmental specialist up until grade 12 that we saw, basically, on a six month basis. And it was more of a maintenance than anything. He went on to become a – a house captain. He went on to become a prefect. He went on to be in winning teams of cross-country and basketball. He assimilated to that school remarkably well."
76 Mark Carleton had a busy and relatively well paid job as a manufacturing engineer with an electronic appliance company, but Aaron's medical issues meant a significantly higher work load for everyone. Mr Carleton said that they were devoted parents and that the children were his and his wife's highest priority, and she "went to extremes" to provide Aaron with the support he required. She, he said, was "doing more hours than I was trying to support Aaron and look after the house while I was at work". Mrs Carleton had to be available during Aaron's younger years to pick him up from school when it occasionally was required because of his behavioural issues.
77 Mr Carleton's evidence was that he and his wife discussed their future financial and employment plans from time to time. He said that his wife enjoyed work but Aaron's health issues meant that the plan for "Janelle to ramp up her hours and do more" had to wait. According to Mr Carleton, however, by the time Aaron was in about grade 8, in 2013, things were "going relatively smoothly". Later in his evidence he said:
"The plan had always been, once the boys were established, Janelle would go back to work full time. She would establish a solid career. She had always done well, regardless of who she worked for, had always had promotions. In those earlier years before I graduated from university there was several years she earned more – her income was higher than mine. I didn't mind that, we were both working hard. So the plan was always for her to go back to full time work so we could set ourselves up, get ourselves established with a reasonable retirement buffer and you know, we enjoy work. It's a social thing as much as a work thing. So yeah, there was never a plan to stop early, but there was always a plan that we would both knuckle down, work hard and set ourselves up."
78 Mr Carleton stated that he and his wife had a combined total of about $600,000 in superannuation but he thought that they needed more to fund a basic level of retirement income. He earned about $175,000 per year plus quarterly bonuses. There was about $80,000 outstanding on their home loan. He had refused at least one offer of employment at a higher salary because it was further from home and he enjoyed his present job.
79 In October 2013 the plaintiff was working part time, usually about 20 hours per week. During periods leading up to annual conferences she worked additional hours, sometimes up to 38 or 40 hours per week, and was required to be away from home for the conferences themselves. She said that, at those busy times, it was not unusual for her to work 12 hour days, but around her commitments with the children she was "often working at midnight, one o'clock, to get things done."
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80 At the time of her injury, the plaintiff's eldest son Bryce was no longer living at home. However, Aaron was then, and is still, living at home. By the time of the trial Aaron was 24. He had qualified as an exercise physiologist and was employed in that capacity full time working with persons with disability. He had a girlfriend. Mr Carleton described the nature of Aaron's job, and that he was 100 per cent committed to his clients, but that "he still struggles with his ADHD and his anxiety, that will never go away. When he gets home he's mentally exhausted. So yeah, he is drained when he gets home. He gets home and has to rest…".
Post injury employment
81 Following her injury Mrs Carleton continued to work for Office Logistics until about 2017. Her work only involved ANZELA and the ACBC. She said that in 2017 the work was "starting to drop off" with Office Logistics, which did not renew the contract with the ACBC. There is some controversy about the reason for the cessation of her work with Office Logistics. It was put to her in cross-examination that the work with that firm was "drying up" in any event, but Mrs Carleton suggested that this was because of her inability to work extra hours.
82 In any event, as a result, Mrs Carleton applied for and obtained employment with a psychology firm. It was one day a week plus some occasional fill in work. The most she had to work for that firm in one week was four, eight hour days. When that happened she found that her pain levels "went through the roof" and she resigned. Next she undertook some administrative work for a development company as well as some direct work with the ACBC. She refused an offer from Mrs Bennett for a six month contract with Office Logistics for 21 hours a week due to the demands of her other employment. She thought she could not cope with working a total of about 38 hours per week. When she refused that offer her relationship with Mrs Bennett deteriorated markedly and they had not spoken since.
83 Mrs Carleton then commenced permanent part time employment with the ACBC, working in general for 20 hours per week in that position. She worked from home and was able to work flexibly such that she could spread the five hours work over the course of each of the four work days to enable her to take breaks to rest or exercise and attend appointments for physiotherapy and massage. Elizabeth Sullivan was, from 2021, chief executive officer of the ACBC. When Ms Sullivan commenced in that role, the plaintiff was already employed as a membership coordinator. She managed the membership base, provided executive support to the CEO, and assisted with the accounts and finances and with some IT issues. Ms Sullivan described Mrs Carleton as an outstanding and valuable team member who provided "high level professional support" and was diligent and hardworking. Ms Sullivan confirmed that Mrs Carleton worked five hours a day, four days a week, but was allowed a working arrangement which permitted flexibility in the completion of those hours to take account, in Ms Sullivan's words, of her "family carer responsibility, and very importantly, with her ongoing rehabilitation needs". Ms Sullivan's evidence was that a full time position would have been available to Mrs Carleton if she were able to take it up. However, she explained that on occasions on which Mrs Carleton had been required to complete additional hours there was a noticeable physical impact on her. Ms Sullivan accepted that Mrs Carleton was unable to work more than her usual 20 hours on the flexible working arrangements which were made available to her. Mr Carleton's observations of her were that she could only work four to five hours in each day, and even then the hours had to be "broken up."
84 I am not persuaded that Mrs Carleton has failed to fully exercise her post injury capacity for work. The defendant produced a report from Shiralee Laycock, a physiotherapist who prepared a "Vocational and Labour Market Analysis Report" dated 14 September 2013. According to Ms Laycock, Mrs Carleton was "capable of transition to suitable employment in the open labour market". It was suggested that suitable employment would be available to her as a sales representative, administration officer, travel consultant, hotel services manager and facilities manager all of which are
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"light" or "sedentary" and would be suited to her "residual physical capacity." Included in the report was an analysis of what Mrs Carleton may be able to earn were she to be employed full time in such positions.
85 With respect to Ms Laycock I give the evidence little weight. She did not personally assess Mrs Carleton. Her opinion is expressed to be "subject to medical approval". None of the types of employment she mentions would be likely to offer the flexibility of hours and conditions upon which Mrs Carleton's ability to continue to work depends, and do not seem to me to be any less onerous in terms of the sedentary nature of the work than her current employment.
86 Mrs Carleton was cross examined about her intentions of returning to full time work. It was put to her that her circumstances in 2013 were such that it was more likely that she would stay in flexible part time employment, perhaps with increasing her hours from time to time, rather than going into a fixed full time position. She responded in these terms:
"I don't agree. I like to work. I like to be challenged. I had plans to have another career. I'm great at what I do, and I get a lot of satisfaction out of that. And working at home, I know a lot of people had to do it through COVID, and I know a lot of people have now decided they don't particularly want to go back into offices, but I've been doing it for a long time, and I had been doing it for a long time. And I wanted to be out in the world, in a full time job, utilising all of the skills that I've amassed over a number of years."
Quantification of lost earning capacity
87 The plaintiff's claim is advanced as the difference between the plaintiff's net actual earnings following the injury and the total net amount she claims she would have earned had she not been injured. The particulars of her claim include the period immediately following her fall but the evidence does not justify a finding of any possibility that she would have increased her work hours or accepted full time work until at least mid-2014, and more likely the beginning of 2015. I would therefore exclude, as a starting point, any claim for past loss prior to the commencement of the financial year ended 30 June 2015. The claim for past loss of earnings is presently particularised by the plaintiff to 30 June 2023. According to the plaintiff's particulars, the plaintiff's total actual net income, adjusted for tax and Medicare levy, for the financial years ended 30 June 2014 to 30 June 2023 was $257,550.24. No submission was made to the contrary on behalf of the defendant.
88 The plaintiff's total net earnings for the financial years 2015 to 2023 was $233,685. To allow for the passage of time since the particulars were prepared I would extend the particularised claim to the end of February 2025, about a month after the plaintiff's 61st birthday, by using estimates. In the circumstances I do not find mathematical precision to be necessary. In the period since the particulars were prepared, she would have received and will receive further income at a marginally higher rate, I will assume a net annual income of $34,000. Calculated to the end of February 2025, and adjusted for tax and Medicare levy, I would adjust the allowance for her past actual net earnings by adding $34,000 for the year ended 30 June 2024 and $24,000 for the period since then to end February 2025, making a total of $291,632.
89 The particularised claim for past lost earnings assumes that the plaintiff would have earned a gross amount of about $62,500 as a contractor, then an employee, for the year ended 30 June 2015, about $78,000 as an employee for the year ended 30 June 2016 and then, in each following year increasing gross amounts in full time employment, culminating in a total gross income in the year ended 2023 of $94,000. The amounts are calculated by reference to the full time adult average weekly earnings published by the Australian Bureau of Statistics. The total (excluding the amount for the year ended 30 June 2014) is $574,338. For equivalence, I would bring that claim forward from the date of
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the particulars to end February 2025 by adding my estimate of the net adjusted sum of $73,000 for the
year ended 30 June 2024 and $49,000 to end February 2025, making a total net claim of $696,338.90 Reduced by the actual net earnings, this results in a total claimed net loss of income for the equivalent period of 1 July 2014 to 28 February 2025 of $404,706.
91 The claim for future lost earning capacity is calculated on the basis of the difference, based on the figures for the year ended 30 June 2023, between the claimed net earning capacity of $71,533.27 and the actual earnings for that year of $32,880.96, producing a net loss of $38,652.31. The resulting claimed net weekly loss is $743.31 per week. Discounted at 5% to age 67, the value at the particularised date of the loss of that sum amounts to $256,938.93. Adjusted to allow for the further passage of time, the present value of the loss of that weekly sum for six years discounted at 5% is $201,734.33.
Approach to the assessment of past and future loss
92 As I have already suggested, I do not consider it appropriate to approach the assessment of either past or future loss on a precise mathematical basis. I return to the basis on which the plaintiff's claim is put: that had she not been injured she would have, as soon as she was in a position to do so, engaged in full time employment at the rates of income she suggests. The defendant submits that the probability that the plaintiff would have returned to long term full time employment at the salary levels, contemplated by the plaintiff from 1 July 2014, or even at some later time was low. She was yet to make any concrete plan to return to full time work. She enjoyed the work she was doing, took pride in her work and had formed no intention to change. She had been working part time for many years, had no particular qualifications beyond her experience and no plans for further study.
93 I think the correct approach to assessment is somewhere between the approach advanced by the plaintiff and the approach advanced by the defendant. I will do the best I can to consider the plaintiff's position as it was immediately before her injury in October 2013 and what it would have been had she not been injured. I accept the evidence of the plaintiff and her husband that there was a shared intention for her to return to full time employment as soon as she was in a position to do so. However, I find that her return was likely to be later than she claims and more gradual. Aaron's position had, by 2013, just stabilised. He was still only a couple of years into high school and his position was such that, in my view, it was unlikely that Mrs Carleton would have accepted full time employment. The nature of her son's condition was that she still required some flexibility in employment conditions. However, that is not to say that she would not have increased her employment hours and, for all the reasons she and her husband advanced, I think it very likely that she would have tried to do so. Her claim also depends on suitable employment being available to her. I accept her evidence however that, at some stage, she would have been able to take up full time employment. Mrs Sullivan gave very persuasive evidence that Mrs Carleton was a very competent employee and full time employment would have been offered to her had she been able to take it up. There was no evidence about what income would have been available to her in such a full time position. The amounts the plaintiff advances based on the average weekly wage figures seem to me to be reasonable, when considered with the levels of salary referred to by Ms Laycock, but also ambitious. Doing the best I can, my judgment is that from about 2015 or 2016 the plaintiff would have gradually increased her employment hours such that, by 2019 or 2020 she would likely have been working full time at rates of income comparable to those she advances.
94 For the claim for past lost income I would, balancing all of the factors to which I have referred, allow $250,000.
95 I would assess the claim for future loss on the basis that Mrs Carleton would have been working full time. She said that her intention was to work to age 67, but I think it likely that she would
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not work that long. In my view her husband would likely retire at about that age and, if they were in a financial position to do so, she would not likely continue to work full time following his retirement. I base that assessment on my observation of their close relationship, their mutual interests in an active lifestyle and travel. There should also be a modest discount for the ordinary vicissitudes of life. I would allow $150,000.
96 As to the claim for superannuation, I would respectfully adopt the analysis of Porter J in Munting v Pollard [2024] TASSC 30 at [261]-[268] with which I agree. I would allow superannuation on the past loss at the rate of 11.5% amounting to $28,750 and on future loss at the rate of 12% amounting to $18,000.
Pain and suffering and loss of amenity
97 I have already described Mrs Carleton's injuries and some of their effects. Mrs Carleton gave further evidence about the effect of the injury on her life. She said that she experiences pain in her right arm, pain and reduced strength in her dominant left hand, lower neck pain on the left and into the top of her shoulder, and a reduced range of motion in her cervical spine so that it was difficult to turn to the left. The pain was constant but varied in intensity depending on her work and personal activities. For example, her pain increased if she was required to sit at a computer or use a computer mouse for a long period, or do anything "heavy" like picking up a heavy basket of washing. She said that she tended to compensate for the lack of neck movement by moving her whole body. Sleeping on her left side was uncomfortable and she woke regularly if she turned onto that side. Sexual relations with her husband were, and continued to be, restricted by pain, stress and by the effects of medication. She has not taken regular pain killers since 2017 because they seemed to cloud her thinking, but she took them as required from time to time. When necessary she uses paracetamol, valium and anti- inflammatories.
98 According to Mrs Carleton she was proud of her house and garden but her ability to maintain both was impacted by her injury. Her husband Mark or her son Aaron carried heavy baskets of washing for her and did other tasks that she performed prior to her injury. Aaron did the vacuuming. Her husband washed the floors. She still cleaned the bathrooms although she had taught herself to use her right hand, and her husband or son scrubbed the showers. She still did the cooking although her husband helped to cut harder vegetables with a knife or lift a heavy pot. She had most groceries delivered and brought upstairs at her home. Her husband sometimes accompanied her shopping to help her carry bags. He now maintains the outdoor living areas. When there was work to be done in the garden it was mostly done by her husband and son.
99 Mrs Carleton returned to driving after six weeks but thereafter found driving in her manual car less comfortable. Nevertheless she persisted with that car, navigating when reversing by using mirrors rather than turning her head, until she recently replaced the car with a more modern automatic vehicle with reversing cameras.
100 As to travel, she was able to travel to Japan, Singapore and Vietnam in 2016, managing by use of pain medication and by avoiding prolonged sitting. She was able to walk well. She continued to ride a bike but was no longer able to go mountain biking. She purchased a step through bike to make it easier for her to get on and off. I accept that her injury has had a significant impact on her life.
101 For pain and suffering and loss of amenity I would award the sum of $90,000.
Claim for gratuitous services
102 The right to compensation for gratuitous services is controlled by the Civil Liability Act. Damages for gratuitous services may be awarded in respect of gratuitous services required by the
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person as a result of injuries to that person caused by the negligence of another person: s 28B(1). However a person may not recover damages for gratuitous services unless the services have been provided, or are likely to be provided, to that person for more than 6 hours per week and for more than 6 consecutive months: s 28B(2).
103 The plaintiff's claim is on the basis of an hourly rate. If damages for the services are to be calculated on that basis, the hourly rate is not to exceed one-fortieth of adult average weekly earnings: s 28B(3)(1).
104 I accept the evidence of Mr and Mrs Carleton that, from the time of the injury to the present, assistance at home has been provided by Mr Carleton and Aaron with activities like cooking, lifting heavier objects, floor cleaning, changing beds and garden maintenance. I am satisfied that the assistance is attributable to the injury suffered by the plaintiff. However, I am not persuaded that the provision of services meets the statutory threshold of more than six hours per week. To justify such a claim it is necessary to establish that blocks of time amounting to that total, or on average about 50 minutes every day, is necessary to provide services required by the plaintiff as a result of her injury. I do not think that the evidence establishes a requirement for care at that level for any period other than for a few months, less than six months, after the injury. As the defendant submits, I think correctly, a distinction is to be drawn between time allocated to emotional support and companionship on the one hand and services on the other. No real particularisation was given of the amount of time allocated to these services, and, in my assessment, the estimate given by the plaintiff (which just exceeds the threshold anyway) is overstated. Evidence was given of the types of things which Aaron did to help
out at home, but not all of that is, in my view, attributable to the plaintiff's injury.
Medical expenses
105 The claim for past medical expenses is advanced in the total sum of $41,612.47. Of that amount $24,051.62 was paid by a workers compensation insurer and is to be repaid. That sum is therefore properly included in the award of damages. A further sum of $5,522.25 was paid by a medical insurer. There is no evidence of an obligation to repay that amount and so it is not properly included in the awards of damages. There is a claim for $335 for parking which I would not allow. The award for past medical expenses should thus be $36,090.22.
106 As the plaintiff correctly submits, the evidence about the claim for future medical expenses is "somewhat sketchy". There is no evidence that surgery on her cervical spine is likely to be required in the future. No allowance for "a buffer" for this possibility is justified. There is some evidence that surgery on her rotator cuff injury might be required but it is now almost 12 years since the injury and there has been no surgery so far. There is no evidence of the precise nature of the surgery which might be required or the cost of it. Again, the plaintiff claims a "buffer" but I do not see that it is justified. The plaintiff manages her condition with physiotherapy, massage and medication. The claim for physiotherapy is on the basis that she will require one hour of treatment per month at a cost of $193.99, discounted at 5% for the remainder of her life in the total sum of $35,951.23. The cost of medication for her life is in the sum of $1,911.61. I think the claim for medication is reasonable. I also think that a claim for physiotherapy is reasonable but the amount claimed is overstated. I would allow the total sum for further medical expenses in the sum of $20,000.
Interest on damages
107 The plaintiff claims interest on damages in accordance with the Supreme Court Civil Procedure Act 1932. In my view there should be an award but confined to the amount awarded for the past aspect of loss of earning capacity. I would respectfully adopt the same approach as was applied by Porter AJ in Public Trustee as Administrator of the Estate of Matthew Leonard v Atileo [2023] TASSC 33 for the reasons his Honour gave at [362]-[369]. Interest on the sum of $250,000 from 19
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July 2019 to date at 1.5% per annum is $21,205.48 and there will be an order that interest be paid in that sum.
Summary of damages award
| 108 | Pain, suffering and loss of amenity | $ 90,000.00 |
| Past lost earning capacity | 250,000.00 | |
| Future lost earning capacity | 150,000.00 | |
| Past superannuation | 28,750.00 | |
| Future superannuation | 18,000.00 | |
| Past medical expenses | 36,090.22 | |
| Future medical expenses | 20,000.00 | |
| Interest on damages | 21,205.48 |
TOTAL $614,045.70
Order
109 I order that judgment be entered for the plaintiff against the defendant in the sum of
$614,045.70.
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