Carrara v Polito

[2010] VCC 1469

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-08-03365

LUCIA MARIA CARRARA	Plaintiff
v
PASQUALE ANTHONY POLITO	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2010
DATE OF JUDGMENT:	15 October 2010
CASE MAY BE CITED AS:	Carrara v Polito
MEDIUM NEUTRAL CITATION:	[2010] VCC 1469

REASONS FOR JUDGMENT

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Catchwords: OCCUPIER’S LIABILITY – Negligence – Part IIA of the Wrongs Act 1958 (as amended) – whether there was an appropriate breach of duty.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Ryan	Nowicki Carbone & Co.
For the Defendant	Mr A Ramsey	Hunt & Hunt
HIS HONOUR:

Introduction

1          On the evening on 6 January 2008, Lucia Maria Carrara, who I shall refer to as “the plaintiff”, was dancing the ‘Tarantella’ at an Italian wedding reception held at the Red Olive Café/Bar situated at 213 St Georges Road, North Fitzroy, which I shall refer to as “the premises”, when she fell and suffered injury to her left elbow. She now sues Pasquale Anthony Polito, who I shall refer to as “the defendant”, in negligence and a breach of the statutory duty provided by Part IIA of the Wrongs Act 1958 (as amended), for general damages and special damages said to amount to approximately $1,400.

The Evidence

2          Both the plaintiff and defendant gave evidence and were cross-examined.

3          The plaintiff tendered the x-ray report of Dr John Crowe dated 15 January 2008, the x-ray report of Dr Kim Yu dated 10 November 2008, and the medical report of Professor K Myers dated 17 June 2008, all contained in the Joint Court Book, at pages 30-42 (“Exhibit 1”).

4          The defendant tendered the following material:

(a)	photographs contained at pages 127-130 of the Joint Court Book (“Exhibit A”);
(b)	schematic drawing in enlarged form, at page 126 of the Joint Court Book (“Exhibit B”);
(c)	photograph, at page 115 of Joint Court Book (“Exhibit C”);
(d)	the report of Mr Michael Shannon dated 23 July 2009, at pages 44-47 of the Joint Court Book (“Exhibit D”).

The Parties and the Occurrence of the Injury

5          The plaintiff is a fifty-nine-year-old (born 12 December 1950) married woman who is a pensioner. She is naturally right-handed.

6          The plaintiff’s husband, Bill, is a marriage celebrant, and on 6 January 2008, she accompanied him to a wedding at the Botanical Gardens, where he officiated as the marriage celebrant. After the wedding, the plaintiff and her husband were invited to the reception to be held at the premises. The plaintiff gave evidence that she may attend, with her husband, fifteen or twenty weddings a year, of which they had been invited back to the reception on three or four occasions.

7          The defendant is the managing and sole director of Red Olive Pty Ltd, which conducts a restaurant and pizzeria business at the premises during the week.

8          The defendant is the nephew of the groom who was married at the Botanical Gardens on 6 January 2008 and has the same surname as his uncle. By way of wedding gift, the defendant permitted the premises to be used for the wedding reception and supplied food and alcohol at cost. The defendant and staff of Red Olive Pty Ltd arranged the premises for the wedding reception and were involved in the preparation, service and clearing away of various platters of food during the reception.

9          The defendant described the premises, referring to a schematic drawing (“Exhibit B”), which depicted a largely rectangular building with seating for the wedding party guests along the northern wall, allowing space along the length of the restaurant for the service of food. At the back of the restaurant there was a fireplace with a slightly raised area where the defendant noticed people dancing.

10        The plaintiff gave evidence that she understood the defendant to be the proprietor of the premises. She did not believe the premises were specifically designed for dancing.

11        During the course of the evening, she commenced dancing the ‘Tarantella’ with another woman in an area towards the front of the restaurant. It was in this area that she fell to the ground.

12        In her evidence-in-chief, the plaintiff gave the following account of what occurred:

“MR RYAN:

Q:	Just explain to His Honour what happened. What caused you to fall?---
A:	I was dancing and I saw kids. And me to avoid the kids, I fall on my back.
Q:	Kids? A number of them or one?---
A:	One.
Q:	Was the child a male or a female?---
A:	Female.
Q:	Pardon?

HIS HONOUR:

 Q:  Sorry, female?---

MR RYAN:

Q:	Boy or …?---
A:	Boy, boy.
Q:	So my questions now will be just in relation to this boy. This boy, can you say roughly, - can you estimate how old this boy was?---
A:	About four/five years old.”

(T3, L15-25).

13        Later, in her evidence-in-chief, the plaintiff expanded on her earlier evidence:

“Q:	… This child, could you describe the manner in which he came onto the dance floor?---
A:	Well, I was dancing and see this child come around and me to avoid the boys, I fall onto my back. And then I don’t remember nothing else.
Q:	Was the boy, when he came onto the dance floor when you first saw him, was he just walking casually; was he running; how would you – what were his actions?---
A:	I just saw the boy around. I didn’t know if running or – I just saw the boy, me to avoid the boy, to not touch him, I fall on my back and that’s it. That’s what I remember.”

(T6, L18-28).

14        Later, in re-examination, the plaintiff gave the following evidence:

“Q:	Let me ask you this, just to clarify what his Honour’s enquiring about. What connection was there between the child coming onto the dance floor and you falling? Just what happened? What connection between the child and your fall?---
A:	When I was dancing, I dance and then I saw a child and me to avoid, to not touch him, you know, to not make him fall, you know, I try must best and then I fall back. Maybe slippery, I don’t know. When I get up, I not remember nothing.”

HIS HONOUR:

Q:	Mrs Carrara, when you were dancing and saw the child, the child as you say on the dance floor, was the child – did you turn around and see the child or was the child in front of you or out of the corner of your eye, or where?---
A:	No, I just – just in front of my eye, you know. I was dancing and then I saw a child. Me to not touch him, I just fall and then … .
Q:	And then the child that you saw, the four or five year old which you say you saw?---
A:	Yeah.
Q:	Are you able to say in that fraction of a time that you saw him, whether the child was running or walking or in what way moving that night?---
A:	I don’t know. I don’t know.
Q:	And there was only one child?---
A:	Yes.”

(T25, L5-26).

15        Under cross-examination, the plaintiff was asked a series of questions about her experience of people dancing at weddings and, in particular, what she was doing at the time immediately preceding her fall:

“Q:	… But when you do go, back to the weddings, it’s a common occurrence that there is a dance between the bride and groom?---
A:	Yes.
Q:	That’s following by dancing by as many guests who want to get onto the dance floor?---
A:	I don’t understand what you say now.
Q:	Commonly, after the bride and groom have a dance?---
A:	Yes.
Q:	Other guests join them on the dance floor?---
A:	Yes.
Q:	And often there’ll be children on the dance floor?---
A:	Maybe.
Q:	The children dance around pretty vigorously?---
A:	Maybe yes.
Q:	It’s a very common occurrence at a wedding:---
A:	I don’t know.
Q:	This was an Italian wedding, a Calabrian wedding?---
A:	The one with – yes.
Q:	At the time you were dancing the Tarantella, is that correct?--- What is … Tarantella?---
A:	Yes.
… Q:	And it involves kicking heels up, throwing your arms around?---
A:	Yeah, that’s fine.
Q:	It’s done in a group and you sway back and forwards?---
A:	Yes.
Q:	It’s a very gay and jolly celebration?---
A:	Yes.
Q:	Sometimes people slip over?---
A:	I don’t think so.
Q:	But that’s what happened to you?---
A:	I no slip over, I just fall over because a child pass in front of me, I’m sorry.
Q:	You’ve described seeing the child at a house earlier in the day?---
A:	In the house, yes.
Q:	You’ve described seeing the child at the gardens?---
A:	Yes.
Q:	And you’ve described seeing the child just before you fell?---
A:	Yes.
Q:	They were the only times you saw the child on that day?---
A:	Well after no remember nothing because after the fall and then I get up, after an hour I got to go home.
Q:	But you remember seeing the child only in three places before the fall?---
A:	Yes.
Q:	So there was nothing about the behaviour of the child prior to the fall that alerted you to his behaviour. And indeed, my client will say that no children appeared to be behaving badly on the night, would you agree with that?---
A:	No, I don’t.
Q:	Why don’t you agree with that?---
A:	Because I saw the child and I fall, that’s what I tell you. I don’t know nothing else after that.
Q:	So that was only the one incident involving a child that you saw at any time at the restaurant was the time when you fell?---
A:	Yes.”

(T20, L7 – T21-L22).

16        The defendant was unaware as to who was to be invited to the wedding and in particular did not know how many children were going to attend. The defendant has no children of his own.

17        The defendant gave evidence that at no time during the course of the evening did he observe any misconduct on the part of any children, and he was unaware of any problems with parents controlling children.

18        Under cross-examination, the defendant accepted that the premises was not a function centre and it was not usual for dancing to take place on a regular basis there. He also accepted that the dancing undertaken on the night was not “just sort of calm waltzing or anything like that”: (T43, L4-5).

19        He accepted that there were three or four children in attendance at the premises, of which there were two boys, about four or five-years-of-age, and to whom he was related.

20        After identifying the most likely young boy who was seen by the plaintiff earlier in the day and who was on the dance floor shortly prior to her falling – Joseph – the defendant was asked in cross-examination:

“Q:	Would you describe him as a rather boisterous young boy that jumps around and can get excited and the like?---
A:	Do you want me to describe him?
Q:	Yes, (sic) a lively child?---
A:	He’s a normal child, probably about – less than 30, 40 kilos, he’s not a big boy. And he’s a normal kid.”

(T44, L31-T45, L5).

21        The defendant was also cross-examined as to any precautions that he undertook on that night, especially in the area where people were dancing:

“Q:	… you didn’t take any positive steps, whether you should have or didn’t is a matter of his Honour but you didn’t take any positive steps to prevent the one child that was at both functions, namely the Botanical Gardens and at the restaurant, the one young boy, you didn’t take any positive measures to stop him getting onto the dancing floor?---
A:	Prevent him from what?
Q:	From being in the vicinity of where people were dancing. You didn’t take any positive measures, correct?---
A:	It’s a – the measures are taken of course. It’s a safe environment, from the start.
… Q:	And you may have answered it but I have heard some evidence, and I think you’ve agreed that there were some people dancing up near the fireplace?---
A:	Yes.
Q:	At the restaurant and at certain times during the night some people were dancing towards the front door of the restaurant?---
A:	I don’t recall that.
Q:	You don’t recall that at all?---
A:	No.
Q:	Well, even in relation to – and I make this more generalised - in relation to the people you were aware of dancing up near the fireplace, I think it’s been put to you, did you make or did you obtain any precautions to stop children being in that area where that dancing was being undertaken?---
A:	In all fairness, it’s not an environment where it’s going to be dangerous in any way and the kids were – it’s like they’re not even there.
Q:	Sorry?---
A:	It’s like the kids weren’t even there. There was no – there was no major, you know, (indistinct) how do you say it?
Q:	And just on the same thing, if you say to the Court you were unaware that there’s dancing done down near the front door where the plaintiff says she was dancing, but if she gives that evidence, do you say that’s – that may well have occurred but you just didn’t see it or do you say that never occurred in that area?---
A:	Look, it could have – it could have occurred that night. That’s the style of – the dancing is but no, there was – there was people just dancing on the fireplace at most times. At the front, I didn’t notice people dancing at the front whatsoever to tell the truth, because people were going that way and they were walking around and they were coming back so it was mainly at the back, there was more movement than the front that I recall.”

(T45, L28-T47, L11).

The Injury Suffered by the Plaintiff

22        After the occurrence of her fall, the plaintiff sat in a chair for about half an hour with ice on her arms before going home.

23        She attended her general practitioner, Dr Boyapati, who arranged an x-ray of her left elbow and wrist on 14 January 2008. The report of the radiologist (see page 30 of Exhibit 1) states:

“There is a complex and moderately displaced fracture of the lower humerous involved in the capitellum extending into the elbow joint space. There is a bone fragment of osteophytic bone density lying adjacent to the middle epicondyle. No further abnormality is seen.”

24        She was admitted to The Royal Melbourne Hospital on 20 January 2008 and underwent surgery to her left elbow involving internal fixation with two screws. She was an inpatient for about three days and thereafter was immobilised in a backslab for about two weeks and then in a flexible splint for about four weeks. She attended physiotherapy for about six months. In November 2008, the pins in the elbow were removed.

25        The plaintiff gave evidence that she has pain in the elbow every day and cannot sleep very well because of the pain. She takes one Voltaren every day before going to bed, and normal Panadol, about one tablet every two days when she needs it.

26        She has a little bit of trouble driving, particularly after about two hours, and in particular feels more pain when she flexes the elbow and has the feeling of pins and needles inside the elbow if it is knocked. She sometimes has difficulty making the bed and dressing herself, particularly putting on her bra, and is limited in what she can lift with her left arm. In particular, it is “very hard” when she attempts to pick up her grandchildren. She attempts to do most things with her right hand.

27        The solicitors for the plaintiff arranged for her to be medico-legally examined by the general surgeon, Professor K Myers, on 10 June 2008. In a report dated 17 June 2008 (see page 32 of Exhibit 1), he diagnosed the injury to be a “capsulitis of the left elbow and left shoulder” which was “substantially stable” although there may be some slight degree of improvement over the next six to twelve months. He was of the opinion that driving and lifting were restricted because of the limited use of the left arm and, indeed, various levels of activities involving her left arm would be affected. He accepted the plaintiff would experience some pain with her left elbow injury.

28        The solicitors for the defendant arranged for her to be medico-legally examined by the orthopaedic surgeon, Mr M Shannon, on 21 July 2009. In a report dated 23 July 2009 (see page 44 of Exhibit D), he expresses the opinion that the plaintiff has sustained an intra-articular fracture of the left elbow with secondary elbow stiffness and secondary stiffness of the left shoulder. At the time of the examination she was making complaints that she had difficulty with lifting and dressing because of the pain and stiffness in her left elbow.

29        I was invited by counsel for the plaintiff to inspect the scarring of the left elbow. A casual observation revealed about 4 inches of scarring on the lateral and medial sides of the elbow joint.

The Proceeding

30        In her Statement of Claim, the plaintiff describes the defendant as a “sole trader” carrying on business at the premises. Further, she describes the defendant as the “occupier” of the premises and that the premises were “premises” within the meaning of Part IIA of the Wrongs Act 1958.

31        In particular, paragraph 5 of the Statement of Claim alleges:

“On or about 6 January 2008 at about 9:10 pm the Plaintiff was present at the premises. The Plaintiff was in the company of her husband. The Plaintiff was dancing with another patron of the restaurant on the dance floor at the restaurant. The Plaintiff fell when a small boy, who the Plaintiff believes was aged approximately 5 years, ran onto the dance floor in a fast, intimidating and unruly manner and startling the Plaintiff, who stepped backwards quickly to avoid a collision with the small boy. The Plaintiff believes the small boy was the son of the Defendant. When the Plaintiff quickly stepped backwards she lost her balance and fell over (which event is hereafter referred to as ‘the incident’).” (sic)

32        The plaintiff alleges that the defendant owed her a common law duty of care which was breached in the following way:

“PARTICULARS OF BREACH

(a)	Providing an unsafe premises for the Plaintiff;
(b)	Allowing a hazard to be present at the premises;
(c)	Failing to take steps to obviate or eliminate the hazard in the restaurant, the hazard being the dangerous activities of the unsupervised and uncontrolled small boy running onto the dance floor in a fast, intimidating and unruly matter (sic). (“the hazard”);
(d)	Failing to ensure that the premises were maintained in a safe condition;
(e)	Failing to inspect the dance floor to ensure that then (sic) hazard would be eliminated and thereby the dance floor was made safe for the use of the patrons of the restaurant including the Plaintiff;
(f)	Failing to take such care as in all the circumstances of the case was reasonable to ensure that the Plaintiff would not be injured by reason of the state of the premises and not controlling the small boy to ensure that he was restrained and prevented from running onto the dance floor in a fast and intimidating manner and thus startling the patrons, including the Plaintiff, using the dance floor for dancing;
(g)	Failing to have any or any adequate system of inspecting the area where the incident occurred;
(h)	Having a system of inspection of the premises that was inadequate and/or inappropriate in the circumstances;

(i)        Failing to warn the Plaintiff of the dangers of the hazard at the premises provided by the Defendant;

(j)	Failing to take steps to prevent the Plaintiff from having access to the dance floor when the hazard had not been eliminated and therefore failing to warn the Plaintiff of the hazard in the premises;
(k)	Inappropriately and/or inadequately inspecting the premises;
(l)	Providing insufficient warning to the Plaintiff of the danger posed by the hazard at the premises and provided by the Defendant where the incident occurred;
(m)	Failing to draw the attention of the Plaintiff to the hazard by prominently displaying a sign warning patrons using the dance floor of the hazard;
(n)	Failing to complain with the provisions of Part IIA of the Wrongs Act 1958 (Vic).”

33        The plaintiff also relies on a breach of the Wrongs Act 1958 and, in particular, s.14B – Liability of Occupiers. That section states:

“(1)	The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on this premises in respect of dangers to them.
(2)	Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises.
(3)	An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

(4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to –

(a)	the gravity and likelihood of the probable injury;
(b)	the circumstances of the entry onto the premises;
(c)	the nature of the premises;
(d)	the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e)	the age of the person entering the premises;
(f)	the ability of the person entering the premises to appreciate the danger;

(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;

(fb) whether the person entering the premises is engaged in an

illegal activity;

(g)	the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(5)	Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.

34        By way of his defence, the defendant denies negligence and any breach of statutory duty and furthermore, in the alternative, asserts contributory negligence on the part of the plaintiff.

Relevant Legal Principles

35        The evidence established that the defendant was the managing director of Red Olive Pty Ltd which conducted the business at the premises. Although I expressed some concern as to whether the proper defendant had been sued, counsel for the defendant accepted that his client was an occupier and owed a duty under the Wrongs Act 1958 and at/or common law and the issue became whether such duty was breached in all the circumstances: (T1, L17-27).

36        Later, in discussion with the Court, counsel for the defendant stated:

“What we’re really putting it is this way: uncle asked nephew, ‘Can I use your restaurant?’ Nephew says, ‘Yeah, you can use the restaurant’. So effectively what he’s doing is, because he is the owner of a restaurant that owns the lease, he’s saying, ‘You can use my restaurant’. And so he is – it’s his gift, as it were – and, indeed, he would say this, that is his gift to the uncle for the wedding was the use of the restaurant but it’s not – the distinction I would draw is the fact that it’s – this is not Red Olive Pty Ltd conducting a commercial function for the purposes of the uncle’s wedding. This is this man giving the uncle permission to use it to conduct his wedding at the premises. And it’s one of those things that goes to all the circumstances of what is reasonable in the circumstances that this man takes for the conduct for the people having the wedding in the premises …”

(T32, L5-21)

37        I was taken to a number of cases, many of which dealt with whether or not a duty of care was owed by a particular hotel or restaurant, and if such duty was breached. Many of such cases turned on their own facts.

38        I refer to Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 where, at paragraph 11, the majority of the High Court (Mason, Wilson, Deane and Dawson JJ) stated:

“… It is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty. What is reasonable, of course, will vary with the circumstances of the plaintiff's entry upon the premises. We think it is wholly consistent with the trend of recent decisions of this court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in … to simplify the operation of the law to accord with the statement of Deane J in Hackshaw (CLR at 662–3; ALR at 452) ‘… it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.’”

[my emphasis].

39 A consideration of s.14B of the Wrongs Act 1958 suggests that very similar, if not precisely the same principles are to be considered when determining whether a breach has occurred under that Act. In this respect, paragraphs (a), (b), (c), (d), (e), (f) and (g) of sub-section (4) may all be potentially relevant in determining whether a breach of the statutory duty has occurred.

Analysis of the Evidence

40        I make the following findings of fact:

(a)	The defendant was at all material times an “occupier” of the premises. He had control of the layout of the premises for the wedding reception and knew or should have known where potential dancing would take place;
(b)	The plaintiff was a lawful entrant to the premises to attend a wedding reception held at the premises;
(c)	There were approximately four children aged four or five at the wedding reception;
(d)	The plaintiff was dancing vigorously the ‘Tarantella’ with another woman when she saw a boy, about four or five, on the dance floor causing her to fall;
(e)	Prior to the fall, the defendant had not observed or been informed about any type of misconduct on the part of any children at the premises.

41        I found both the plaintiff and defendant to be credible witnesses. Although I accept and do find that a child aged four or five was in the immediate vicinity of the plaintiff prior to her fall, there is no evidence as to what the child was doing immediately prior to the fall of the plaintiff. Certainly, there is no evidence that the plaintiff “ran onto the dance floor in a fast, intimidating and unruly manner …” as pleaded in the Statement of Claim. Furthermore, there is no evidence as to any difficulties with children during the wedding reception leading up to the fall of the plaintiff.

42        The case of the plaintiff is essentially that the defendant, having set up the premises to allow the wedding party guests to be seated on the northern side of the premises, knew or should have known that dancing was likely to take place in the space running from the front door down the restaurant. Furthermore, the defendant knew or should have known that at an Italian wedding, there was the prospect of unattended young, small children wandering around the area where the dancing was taking place, creating a foreseeable risk of injury to anyone who was dancing, such as the plaintiff: (see generally T82, L5-23).

Conclusion

43        After a consideration of all of the evidence, I find that although a duty of care was owed by the defendant to the plaintiff, the defendant was neither negligent, nor did he breach any statutory duty. I make such decision on the following bases:

(a)	The plaintiff well knew she was attending an Italian wedding where there would be almost certainly children and dancing by a variety of people;
(b)	There was no evidence at all to suggest that there was any predisposition of any of the children to “play up” or indeed, any evidence of complaints about children prior to the plaintiff suffering her fall;
(c)	There is no evidence that the child who the plaintiff saw was performing any inappropriate activity. Although I tend to accept that there is a “connection” between the fall of the plaintiff and her observing the child, such cannot amount to negligence or breach of a statutory duty without more;
(d)	The circumstances surrounding the fall must also be borne in mind. This was an Italian wedding where there was much music, dancing and gaiety involving friends and relatives of the married couple. Can it be said, in those circumstances, that there was a reasonable foreseeability of a real risk of injury to the plaintiff? Further, what would a reasonable man do in discharge of the duty in all the circumstances? It is unrealistic to suggest that the defendant should have insisted that no children attend the wedding or indeed, if attending the wedding, not to leave the seats at their various tables.

44        Accordingly, I dismiss the proceeding.

Quantum

45        In the event that I was wrong on the issue of liability, and to avoid any rehearing of the matter solely on the issue of damages, I will assess damages.

46        Whereas the plaintiff had a normally functioning left arm prior to the fall, she has now experienced two bouts of surgery to her left elbow with residual pain and stiffness causing her to take frequent, albeit small amounts of pain medication. The pain and restriction in her elbow impacts on her day-to-day activities, in that she has restriction of movement of the elbow, difficulty performing some household tasks and difficulty driving for long periods.

47        Counsel for the defendant submitted that general damages would be $40,000 to $45,000. Counsel for the plaintiff submitted that such damages should be in the order of $60,000 to $70,000.

48        Counsel for the plaintiff said that the plaintiff had incurred approximately $1,400 of special damages and it was hoped that the parties would agree on such amount and the Court will be informed of any such agreement. The Court has not been informed of any such agreement and, accordingly, in the absence of any evidence, can make no assessment of special damages.

49        Furthermore, both parties, appropriately, agreed that although contributory negligence was pleaded by the defendant, that such was not an issue on the evidence.

50        Accordingly, based on all of the evidence, I would assess general damages at $50,000 in the event that the plaintiff was successful on the issue of liability.

51        The proceeding is dismissed.

52        I will hear the parties on the question of costs.

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