Caruana v Ski Riders Motel (Kosciuszko) Pty Ltd, trading as Ski Rider Hotel Motel - [2019] NSWDC 182

District Court

New South Wales

Medium Neutral Citation: Caruana v Ski Riders Motel (Kosciuszko) Pty Ltd, trading as Ski Rider Hotel Motel [2019] NSWDC 182
Hearing dates: 19-21 February 2019
Date of orders: 17 May 2019
Decision date: 17 May 2019
Jurisdiction: Civil
Before: Weinstein SC DCJ
Decision:
(1) Verdict and judgment for the defendant;

(2) The exhibits are to be returned;

(3) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; and
(4) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.
Catchwords: Torts – negligence – occupier’s liability – fall in modular bathroom – obvious risk – medical causation – assessment of damages
Legislation Cited: Civil Liability Act 2002, ss 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5R, 16
Competition and Consumer Act 2010 (Cth), Schedule 2
Evidence Act 1995, s 140
Motor Accidents Act 1988, ss 79, 79A
Cases Cited: Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649
Australian Safeway Stores v Zaluzna (1987) 162 CLR
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Cupac v Cannone [2015] NSWCA 114
Clifton & Ors v Lewis [2012] NSWCA 229
Dell v Dalton (1991) 23 NSWLR 528
Hall v State of New South Wales [2014] NSWCA 154
Jaber v Rockdale Council: [2008] NSWCA 98
Majkic v Bonanno [2008] NSWCA 253
Moran v Nominal Defendant [2008] NSWSC 804
Schultz v McCormack [2015] NSWCA 330
Southgate v Waterford (1990) 21 NSWLR 427
State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3
Strong v Woolworths Ltd [2012] HCA 5
Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Category: Principal judgment
Parties: Karen Caruana (Plaintiff)
Ski Riders Motel (Kosciuszko) Pty Ltd, trading as Ski Rider Hotel Motel (Defendant)
Representation:
Counsel:
Mr McManamey (Plaintiff)
Mr Priestly SC (Defendant)
Solicitors:
Turner Freeman (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s): 2017/188020

Judgment

The plaintiff brings a claim for damages for personal injury as a result of a fall sustained on 4 September 2016. On that date, the plaintiff attended the defendant’s premises known as at the Ski Rider Hotel Motel (“the motel”), located at 10 Kosciusko Road, Wilson’s Valley in New South Wales. She was accompanied by her partner Mr Richard Johansen who had booked and paid for the accommodation. They were planning to stay for several nights.
The plaintiff’s claim in negligence alleges that the layout and design of a bathroom in room 69 of the motel created a not insignificant risk of harm to patrons of room 69 of the motel, and that the defendant had actual knowledge of the risk of harm in the course of its day-to-day operation of the motel, at least by its employees’ accessing the bathroom when cleaning and maintaining the room.
The plaintiff pleads, at paragraph 7 of the Statement of Claim, ten measures that she says ought to have been adopted to minimise the risk of harm occurring, and further says that had those precautions been adopted she would not have suffered the injuries and disabilities as pleaded. Paragraph 29 of the Statement of Claim sets out ten particulars of breach of duty of care (to which see below at paragraph 22). The plaintiff also brought a claim pursuant to the Australian Consumer Law (“ACL”) as contained in Schedule 2 of the Competition and Consumer Act2010 (Cth) but that claim was abandoned during submissions.
The claim is dismissed for the reasons that follow.

Facts

The essential facts of the case are not controversial. The defendant conceded that it was not in a position to challenge the plaintiff’s version of the occurrence of the accident itself, as no person witnessed the plaintiff’s fall. The defendant did challenge the plaintiff’s account of the mechanism of her fall. The plaintiff’s case is that on 4 September 2016 she suffered an injury when she fell over a raised step between the bedroom and the bathroom in room 69 of the defendant’s motel. The evidence of the plaintiff and her partner, which is supported by photographic evidence, is that there was a step into the bathroom of room 69 that was approximately 10 inches or 26 centimetres (cm) high. It is also not in dispute that the step into the bathroom was not visible when the door to the bathroom was closed. The plaintiff’s evidence was that when she entered into room 69 of the motel, the step into the bathroom was concealed because the door to the bathroom was closed.
When the plaintiff and her partner arrived at the motel in the afternoon, she stopped at the reception centre and had a cigarette. Her evidence in chief, at T 13.34-40, as to what then occurred is as follows:

“So I’ve entered the room, noticed and observed that there was, I think it’s, like, mesh where you put your bags, and there was a fridge. We brought our own TV to watch. And then I noticed that to the side, there was a wall, so obviously for skis but you could hang some clothes, and a bed – sorry – and a bed there, and the bathroom door the bathroom was behind the bed and had to go around and past the bed – sorry – you had to walk around past the bed to get to it which I was walking around, slid, slid the door open.”

Mr McManamey, who appeared for the plaintiff, asked her where she was standing when she opened the door. She said, at T 16.2:

“You had to go around and past the bed to get to it, so I was basically walking on an angle, so slid it open and just walked, went to walk in.”

The plaintiff described tripping and walking into the step of the bathroom at T 16.6-28:

“I stumbled, well, hit that (step), stumbled, seen my head going that way, ‘cause I was on the angle from going around, seen my head going that way, seen the tiles coming toward my head and … so realising what was there, I just instamatically just went like that to find something else than the wall and managed to grab the sink with going without going face first in that… fell to the left and I jerked to the …right.”

In cross-examination by Mr Priestley SC, the plaintiff said that she slid the door open to walk into the bathroom, and conceded that the room was well lit as it was daylight at T 40.26-27. The plaintiff described the event as it happened in one full movement. She said she was on an angle as she slid the door open and as she was walking in. She told Mr Priestley that she was “in motion”: T 41.16. She said at T 41.37-48:

“I was just in the motion of going in. I didn’t get to check the bathroom out, like, stick my head in like that, because I didn’t expect that to happen with that inclined wall, so it was just an opening the motion on an angle, walking in, hitting the wall”, and she “walked in a – walking motion, walking into it, seeing that toilet, like, seeing the wall coming towards me, jerked to the right, and managed to grab on the sink, nearly going face first into it… All I seen was a toilet and a wall because I was falling.”

The plaintiff denied ever seeing that the floor of the bathroom was higher than the floor of the bedroom before she took a step because the door was shut and was therefore impossible to see.
The nub of the plaintiff’s case came about in cross-examination by Mr Priestley SC, when she said in answer to Mr Priestley’s questions, that she could not see the height of the floor of the bathroom before she took a step, because the door was closed and as she opened it she was in motion walking into it. She said “you don’t expect to walk into a bathroom with an object in front of it”, as she was “in motion” and “wasn’t looking down. I was in motion.”: T 43.8-10. She said that you don’t look down at the floor when you’re going into a hotel: T 43.10-11. She stumbled over the toilet to the left and caught herself with her hands on the washbasin.
The plaintiff conceded that neither did she look down at the bottom of the sliding door, nor that she looked down at all before her attempt to enter the bathroom. I cannot accept the plaintiff’s evidence on this point. Common sense dictates that the plaintiff had to stop to slide open the door prior to her attempting to enter the bathroom. I find that the plaintiff attempted to enter the bathroom not in one motion, but in two distinct motions, separated by a pause when she was looking straight ahead. The first motion was when she slid open the door, and the second was when she attempted to enter into the bathroom and when she fell as described. It is accepted by the defendant that when the plaintiff fell forward toward the toilet, she arrested her fall by grabbing onto the wash basin. There was no impact with any floor, either in the bathroom or the bedroom.
The plaintiff has had a number of significant traumas in her life. She has been on a disability support pension since 2009 and has received psychological and/or psychiatric treatment since at least that date. In about December 2005, her house was set on fire and apparently destroyed. In 2012 she was raped. On 12 August 2016, the plaintiff was seriously assaulted by some of her neighbours when she was threatened with a chainsaw, and on an occasion several weeks before this incident, she was hit at least three times to the left side of her face.

Reliability of the Plaintiff as a Witness

The plaintiff was cross-examined at some length as to her credibility and reliability as a witness. Mr Priestley submitted that I should make a finding that she was unreliable, that she did not attempt to give her evidence honestly and accurately, and that she exaggerated and fabricated her symptoms and the effects of the fall on her life to assist her case. He submitted that I would base such a finding on her demeanour as a witness, her use of a walking aid during the course of the proceedings when it had never been prescribed by a medical or para-medical professional, and that she described widespread and diffuse symptoms without any anatomical basis. He added that she had been receiving the Disability Support Pension since 2009, apparently only on psychiatric grounds whilst at the same time working as a prostitute, and that her evidence of her severe symptoms and need for medication arose solely from the incident, contrasted with the objective evidence that she had been taking Panadeine Forte and Valium prior to the incident. He observed that some photographs taken from Facebook showing her enjoying life post-incident were inconsistent with her evidence of constant severe pain and disability, and her inconsistent with her purported need for domestic assistance.
Mr McManamey essentially submitted that I should accept the plaintiff as a witness of truth.
I acknowledge the “fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom”: see Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3 at [88].
Nonetheless, in the present case I approach the plaintiff’s evidence with some caution. On her own account, she was medicated with opioid analgesia at the time of giving her evidence T 29. Further, she freely acknowledged, at T 74 that no medical practitioner had ever recommended that she use a walking stick, which gives rise to a question as to what might in fact be her reasonable needs for aids and equipment. Thus, in particular with respect to findings about damages, I will look to the opinions of medical practitioners who corroborate the plaintiff’s account of her disabilities and their effect upon her well-being.

The Defendant’s Witness

The defendant called only one witness, Ms Roxanne Donnelly, who is presently the manager at the motel where she has been working in various capacities since 1988. In 1994 or 1995 she became the assistant manager of the motel, and she became the manager in 2007. Ms Donnelly gave evidence that the motel is open for only 15 or 16 weeks per year, during the winter ski season when the occupancy rate is between 85% to 95%. The motel has 95 guestrooms.
Ms Donnelly gave evidence that the plaintiff is the only person she had ever heard of who had tripped in room 69. Further, she was unaware of any complaints about guests tripping in or out of any bathrooms in any of the rooms in the motel during all the time she had worked there. Ms Donnelly became aware of the incident with respect to the plaintiff in early September 2016, following which a sign was put up in room 69 that read “Caution Mind the Step”. The sign was put to the right of the bathroom sliding door in room 69. A similar sign was put into another room which had a similar size step up into the bathroom. None of these facts were disputed.
In cross-examination Ms Donnelly said that a risk assessment was carried out after the plaintiff had left the premises. Ms Donnelly said that she went into many of the rooms to see the size of the steps that were in the bathrooms. She noted that all of the rooms have different size steps, as the building is very old. I find that the motel was constructed at some time prior to 1988, being the date when Ms Donnelly first commenced employment at the motel. Ms Donnelly agreed with Mr McNanamey that the step in room 69 was unusual in the sense that it was higher than the steps to the bathroom in all but one of the other rooms. Ms Donnelly agreed that the sign was put up as a result of this incident, and that it was put up at minimal cost. Ms Donnelly recalled risk assessments being conducted in the past. The last one that she could recall was conducted in the late 1990s, following which a lot of signage was put up about “ice risk” around the hotel.

Occupier’s Liability

This case concerns the obligations of an occupier to a lawful entrant onto its premises. It is admitted that the defendant was the occupier of the subject premises and that the plaintiff was a lawful entrant onto its premises. The defendant concedes that it owed the plaintiff a duty of care as a lawful entrant onto premises that it occupied and that the scope and the content of that duty of care comprised of a duty to take reasonable care to prevent foreseeable risk of injury to such entrants. I accept that this concession fairly states the law as set out in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. Furthermore, I adopt the formulation as set out in the plaintiff’s submissions, quoting McColl JA in Schultz v McCormack [2015] NSWCA 330:

73. As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety.The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on tiles on the porch or the stairs.

74. The scope of the duty occupiers owe to entrants has been identified in numerous cases which reflect the latter premise, that is to say, the obligation of the entrant to take reasonable care for his or her own safety. Thus it is emphasised that the occupier’s obligation is one of reasonable care, not to make the premises as safe as “reasonable care and skill on the part of anyone can make them”. It is not an insurer of entrants. What constitutes the exercise of reasonable care depends on the circumstances of each case.

[footnotes omitted]

The matter falls to be determined pursuant to the provisions of the Civil Liability Act 2002 (“the Act”).
In a civil proceeding, the court must find the case of the party proved if it is satisfied that the case has been proved on the balance of probabilities: section 140 of the Evidence Act 1995. The Dictionary of the Evidence Act defines “case of a party” as the facts in issue in respect of which the party bears the legal burden of proof.
The plaintiff’s cause of action in negligence identifies nine particulars of breach of duty of care as follows:

(a) failure to completely remove the step;

(b) failure to prevent the use of room 69 by patrons altogether until the entry way to the bathroom was made safe;

(c) failure to develop and implement a facilitated risk assessment of the layout and design of the bathroom in order to identify the risk of injury to which users could be exposed to;

(d) failure to comply with risk management methodology articulated within Australian/New Zealand standard AS/NZ ISO 3100:2009 Risk management- Principles and guidelines;

(e) failure to rehang the entry door to the bathroom so that it does not hide and or conceal the step immediately behind the door;

(f) failure to rebuild the step into a gradual ramp so that it did not pose a tripping hazard;

(g) failure to provide and installing a sign posted on the door that stated words to the effect “Be careful, step on other side of the door”;

(h) comply with standards Australia AS/NZS 1680.0:2009 Safe movement;

(i) comply with S 19 of the Work Health and Safety Act and ensure, so far as is reasonably practicable, that the health and safety of other persons, including the plaintiff, was not put at risk from work carried out as part of the conduct of the business or undertaking, namely the hotel and;

(j) comply with Work Health and Safety regulations, in particular:

(i) 32 and 33 of WHSR and specific requirements whilst owning and or operating and or managing in our occupying the hotel;
(ii) 34 of WHSR and identify reasonably foreseeable hazards that could give rise to risks to health and safety;
(iii) 35 of WHSR and eliminate risks to health and safety so far as is reasonably practicable and if not reasonably practicable to eliminate risk to health and safety, to minimize those risks so far as is reasonably practicable; and
(iv) 78 of the WHSR and ensure safe access within the hotel so that the area was safe and without the risk of slips, trips or falls.
[sic]

Breach of Duty: Sections 5B and 5C of the Act

When determining whether or not there has been a breach of duty, a court must have regard to those factors set out in sections 5B and 5C of the Act. They are as follows:

5B General principles

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

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

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

(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

I will approach each subsection in turn, after a consideration of the expert evidence led by the plaintiff on this issue.

Report of Mr David Cockbain

Mr David Cockbain of Safe Group Pty Limited prepared a report for the plaintiff on breach of duty dated 5 September 2017. Mr Cockbain is a consulting professional engineer holding formal qualifications in both occupational health and safety and risk management. He was not called for cross-examination by the defendant, although Mr Priestley submitted that I would accord the report very little weight.

Mr Cockbain relied on a phone interview undertaken with the plaintiff on 31 May 2017 during which time he formed the view that she was heavily medicated. He did not conduct a site visit at the defendant’s premises, which I consider to be a significant deficiency of his report, as he neither viewed the bathroom to room 69 nor the step the subject of the proceedings. No measurements of the room were taken.
A further limitation of Mr Cockbain’s report is that he relies on Australian Standards and Codes, all of which postdate the building of the defendant’s premises, which I have found took place no later than 1988, and which was not suggested otherwise. None of the Standards or Codes were appended to Mr Cockbain’s report.
Consistent with the plaintiff’s evidence before me in court, she told Mr Cockbain that she slid open the bathroom door and that when she went to step inside the bathroom, her leading foot struck “the upstand of a non-delineated height differential”, which caused her to lose her balance and fall forward and then to the left. As she fell, she fully extended her left arm in an attempt to arrest her fall and to avoid striking her head. She then twisted to the right and grabbed the bathroom basin, managing to hold herself in an upright position but suffering some injury to her lower back.
As Mr Cockbain concedes, his opinion is limited to information provided during the interview with the plaintiff and the documents provided by her solicitor, some of which were not tendered in evidence. I note that Mr Cockbain was provided with 18 colour photographs, only five of which appear in his report.
Furthermore, Mr Cockbain says that to get a clear understanding of the factors leading to the incident in order to analyse the injury suffered by the plaintiff, one must undertake a review of the activity being undertaken at the time of the incident and analyse the physical condition of the access/egress routes to and from the bathroom within the defendant’s premises. As previously mentioned as Mr Cockbain neither met the plaintiff nor attended the defendant’s premises so that he could analyse its physical condition, his analysis is significantly limited and I find that I can put little weight on his opinion for that reason alone.
Mr Cockbain notes that the step in to the bathroom in room 69 was measured by the plaintiff at 260 millimetres (mm), and that there was no indication that there was a high step situated behind the door, as it was “masked”. At page 13 of his report, a photograph reportedly taken by the plaintiff clearly shows a sink in a distinctly elevated position to the right of the bathroom. I find that it would have been a visual cue to the plaintiff that the bathroom floor was on a significantly higher plane than the floor on which she was standing when she first slid open the bathroom door. In other words, that cue would have made the elevation of the bathroom obvious to a person sliding open the door.
The plaintiff told Mr Cockbain that subsequent to her accident, she measured the height of the step into the bathroom in room 68 (next door) to determine whether all the rooms in the motel had the same height differential at the entry to the bathroom. The step in room 68 was measured at 85 mm, and is depicted at Figure 5 at page 14 of Mr Cockbain’s report.
Mr Cockbain contends that the masked and non-delineated height differential at the door to the bathroom in room 69 was a hidden hazard to guests entering that bathroom, and the fact that the height differential was permitted to remain without modification or warning, indicated the defendant’s “lack of regard for its primary duty of care obligations”.
At page 16 of his report, Mr Cockbain elaborates on the alleged mechanism of injury. He describes a pedestrian unexpectedly encountering an impediment in a pedestrian walking surface, and says that it would be reasonable to expect that a trip may occur when a front foot strikes an object and is suddenly stopped. The upper body is then thrown forward, often stumbling. In my opinion, Mr Cockbain’s comments do not assist the plaintiff in this case for several reasons. First, she was not a pedestrian in the sense described by Mr Cockbain, travelling a distance on foot. Secondly, she was not suddenly stopped by the stair and then thrown forward. Rather she opened the sliding door, and fell forward, as I have found, when she was stationary. Thirdly, Figure 6 on page 16 to which Mr Cockbain refers, appears to be no higher than the ankle of the human figure, and bears no resemblance to the stair in room 69 in Figure 4 on page 13. If anything, it bears a much closer resemblance to the stair in room 68 depicted at Figure 5 on page 14.
At page 18 of his report, Mr Cockbain refers to Australian Design Standards of 1992 which identify viewing ranges of the average person. I note that this standard (or indeed any other standard to which he refers) was not appended to his report, and no evidence was led satisfying me of its applicability to the subject premises. Mr Cockbain says that the average viewing zone for a standing person is between 1227 mm to 1709 mm. However, Mr Cockbain does not note the actual height of the plaintiff, and her likely viewing zone. This factor alone means that his opinion is of little value on this point. Furthermore, looking at Figure 7 on page 18, I consider that upon opening the sliding door, the visual cue of the elevated sink and floor at the right hand side of the bathroom would have been readily apparent (see Figure 4 on page 13 of his report and exhibit 2, both apparently taken from a standing position).
Mr Cockbain notes that the Building Code of Australia 2015 required a riser to a step or stair to be between 115 and 190 mm, which means that the step into the bathroom of room 69 was 70 mm too high, and noncompliant with that code. The stair into the bathroom of room 68 measured 85 mm in height, which was three times less than the height of the step in room 69. No evidence was led as to the applicability of this code to the subject premises (and it was not appended to the report), and I therefore ignore its apparent mandatory requirements. Furthermore, Mr Cockbain makes no criticism of the step into the bathroom of room 68, which on one view is surprising, taking into account the image of a trip hazard in Figure 6 at page 16 of his report, which appears similar to the photographs of the step into the bathroom of room 68. In my opinion, irrespective of the height of the stair, it was likely that the plaintiff would have fallen in circumstances when, on her evidence, she opened the door and propelled herself forward.
Mr Cockbain identifies eight reasonable measures which he says should have been implemented by the defendant, so that the risk of harm to the plaintiff could have been avoided.
First, Mr Cockbain says that the defendant ought to have undertaken an effective and appropriate risk assessment of bathroom access/egress in all rooms within the defendant’s premises including room 69 to identify the hazards and risk of injury to which the guests may have been exposed. I am satisfied that an appropriate risk assessment was in fact carried out some years earlier, but in any event a risk assessment would not have identified this step as requiring any special consideration, as I accept Ms Donnelly’s evidence that there had been no reported incidents (with respect to tripping in room 69) since the date of her first employment with the defendant in about 1988.
Second, Mr Cockbain suggests that the defendant should have developed and implemented an audit inspection schedule which required regular inspection of the premises to ensure that hazards were identified and eliminated in accordance with basic risk management principles. I find that an audit or inspection conducted prior to the incident would not have identified the step into the bathroom in room 69 as a particular hazard, once again taking into account the uncontradicted evidence of Ms Donnelly that there had been no reported incidents (at least with respect to tripping in room 69) since the date of her first employment with the defendant in about 1988.
Third, Mr Cockbain says that the defendant ought to have ensured that site preparation works were undertaken to accommodate the modular bathroom dimensions prior to the installation of the bathroom so that the floor level was compatible with the floor of the living and sleeping area of room 69. He further says that the works should have been included in the original installer’s quotation and implemented at the design phase of the work. I do not have any evidence before me indicating the standards that would have applied at the date of the motel’s construction. I note that Mr Cockbain’s report is silent on this issue, and provides no basis on which I could determine that any codes or standards to which he refers ought to be applied retrospectively.
Fourth, Mr Cockbain says that room 69 ought to have been isolated until such time as the “masked and non-delineated height differential” of the step into the bathroom was eliminated or rendered as safe as practicable. This presupposes that the step was unsafe, and I repeat what I said above. I am not satisfied that anyone would have identified the step into the bathroom in room 69 as a particular hazard, once again taking into account the evidence of Ms Donnelly that there had been no reported incidents (with respect to tripping in room 69) since the date of her first employment with the defendant in about 1988.
Fifth, Mr Cockbain says that the sliding door in room 69 ought to have been replaced with a door which does not extend to the floor level of the sleeping/ living area, thereby making the height differential obvious from the sleeping/living area of room 69. In this case, even a different sliding door was not likely to have prevented the plaintiff’s accident, as on her own evidence, she entered the hotel room, observed several items of furniture, walked around the bed and slid open the door without looking down or at the bottom of the sliding door. In any event, I do not find that the hanging of the door at its height was unreasonable in the circumstances, taking into account the evidence of Ms Donnelly.
Sixth, Mr Cockbain suggests that an intermediate step could have been installed on the step which would have reduced the height of the height differential, and would have drawn guests’ attention to the inordinate height of the step into the bathroom. He notes that the cost of the intermediate step would be approximately $80.00. Further it could have been and fitted with a non-slip high visibility tape at a cost of approximately $5.00. As Mr Cockbain did not conduct a site visit, (and the dimensions of the motel room are not in evidence), it is impossible to know how that intermediate step could have fit in with the general configuration of the room: see Figures 12 and 13 at page 35 of Mr Cockbain’s report. Further, it appears that if the intermediate step were to abut the wall, a significant planing of the sliding door would have been required. I am not satisfied that either or both of these suggestions were practical or reasonable, and in any event, on the plaintiff’s report of the incident, she did not look down before sliding open the door.
Seventh, Mr Cockbain says that the defendant ought to have installed a sign on each side of the bathroom door in room 69, warning guests of the height differential. It is not in dispute that the cost would have been insignificant. Whilst it is possible that a warning sign might have alerted the plaintiff to the height differential, I find that the defendant did not have a duty to warn (to which see below at paragraphs 65 - 66), and the fact that a warning sign was put up following the events is of no legal significance: section 5C(c) of the Act.
Finally, Mr Cockbain says that workers at the defendant’s premises ought to have been trained to advise guests upon check-in of the height differential between the floor of the sleeping area and the floor of the bathroom in room 69. Taking into account all the evidence in the case, I am uncertain why workers ought to have advised guests of the height differential in with respect to this bathroom only, in circumstances where there were height differentials elsewhere in the defendant’s premises. Further, I note that whilst the plaintiff informed Mr Cockbain that she checked into reception on 4 September 2016, her evidence before me was that her partner and his brother-in-law checked in (T 13.14- 16). There is no evidence before me as to whether or not a warning was given either to the plaintiff’s partner or his brother-in-law. In any event, I find that this risk was obvious, and there was no duty to warn (see paragraphs 65 - 66 below).
Mr Priestley submitted that I should not place any great weight on the report of Mr Cockbain when approaching breach of duty, and I agree for the reasons that are set out above.

Section 5B and 5C factors: Conclusions

Mr Priestley submitted that the risk of harm for the purposes of the Act was that a person might trip entering the bathroom of room 69, fall forward and sustain injury. Mr McManamey did not submit anything to the contrary, and I accept this formulation for the purposes of the Act.
I now approach the section 5B and section 5C factors in turn, noting that section 5B says that a person is not negligent in failing to take precautions against a risk of harm unless:

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

As to (a), the defendant did not contend that the risk was not foreseeable.

(b) the risk was not insignificant, and

As to (b), I find that the risk was not significant. This finding is based on Ms Donnelly’s evidence that no accidents or incidents had been reported to motel management arising from stepping into or out of the bathroom in room 69 of the motel (T 108.25-30). Further, Mr Johansen conceded that when the door was open, you could see the step (T 95.49-50). I also note the visual cue (the raised sink) that would have been apparent to a person who had opened the door.

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

As to (c), I am not satisfied that a reasonable person in the defendant’s position would have taken the precautions as set out in Mr Cockbain’s report.
In determining whether a reasonable person would have taken precautions against a risk of harm, section 5B(2) requires a court to consider the following (amongst other relevant things):

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

As to (a), I find that the probability that the harm would occur if care were not taken to be low, and I repeat the matters set out above in paragraph 52.

(b) the likely seriousness of the harm,

As to (b), I find that the likely seriousness of the harm was such that it cannot be said to be that there was a real likelihood of the plaintiff sustaining serious bodily injury. This is reinforced by the fact that there had been no prior reported incidents over approximately 30 years and my finding that the plaintiff herself did not suffer serious bodily injury.

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

As to (c), whilst the burden of taking many of the precautions to avoid the risk of harm set out in the report of Mr Cockbain (such as a sign) would not have been a significant financial burden on the defendant, the precautions were neither necessary nor reasonable (see paragraph 65 below).

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

As to (d), the question of social utility does not relevantly arise.
Further, section 5C requires a court, in proceedings relating to liability for negligence to consider:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

As to (a), I find that the financial burden to the defendant to avoid similar risks of harm is not known on the evidence. It is known that the evidence suggested that there were steps of various heights in some, if not all of the modular bathrooms in the hotel which are likely to have posed different risks of harm.

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

As to (b), I note that the fact that a risk of harm might have been avoided by doing something differently does not of itself give rise to or affect liability. Ms Donnelly gave evidence that she placed a warning sign in two bathrooms after the incident, and in response to it. I agree with Mr Priestley’s submission that it was a cautious and responsible response to what had heretofore not been recognised as a risk of harm.

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

As to (c), on the assumption that Ms Donnelly’s action would have avoided the risk of harm, it does not of itself give rise to affect liability, and is for present purposes irrelevant.
It follows that in my view, the defendant was not negligent as alleged by the plaintiff, and her case should fail. The particulars of negligence, which have been extracted from the report of Mr Cockbain, are not made out.

Obvious Risk

In its defence, the defendant pleads section 5F – 5H of the Act, which relevantly provide: –

5F Meaning of “obvious risk”

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

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

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

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

5G Injured persons presumed to be aware of obvious risks

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

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

5H No proactive duty to warn of obvious risk

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

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

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

The risk of harm in this matter is tripping on the step and falling forward and sustaining injury after sliding open the door to the bathroom in room 69 at the defendant’s premises. As to whether the risk was obvious, I must determine whether or not it would have been obvious to a reasonable person in the position of the plaintiff: Jaber v Rockdale Council: [2008] NSWCA 98 at [28]. Taking into account the photographs of the bathroom which demonstrate a significantly raised bathroom sink which would have been within a person’s line of sight as she slid open the bathroom door, and which was a cue to the step, I am satisfied that the risk would have been clearly apparent when the door was open, and therefore obvious to a notional reasonable middle-aged woman in the position of plaintiff.

The effect of that finding is that the defendant had no duty to warn the plaintiff of that (obvious) risk.

Contributory Negligence

The defendant also pleads contributory negligence. Section 5R of the Act provides: –

5R 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 in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that 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.

In circumstances where I have found that the defendant did not breach its duty of care to the plaintiff, I make no finding. I note only that the defendant submitted that if I were to have found it negligent in the circumstances, a deduction of 25% for contributory negligence would have been appropriate.

Causation: Sections 5D and 5E of the Act

Section 5D(1) of the Act is a statutory restatement of the “but for” test of causation: Strong v Woolworths Ltd [2012] HCA 5 at [18]. The determination of factual causation requires the plaintiff to prove that she would not have suffered the particular harm but for the defendant’s negligence.
The relevant sections of the Act provide:

5D General principles

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

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

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

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

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

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

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
In the present case, the parties agreed that section 5D(2) had no application. In any event, I am not satisfied that in all the circumstances that there was a breach of duty amounting to negligence, so that the question of causation under section 5D(1) does not arise.
It follows that in my opinion, the plaintiff has not made out her case in negligence, which must necessarily fail.

Damages

In the event that I am wrong on the question of liability, I turn to what I would have otherwise assessed as the plaintiff’s damages.
It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, that plaintiff is entitled to damages reflecting his or her reasonable, as opposed to optimal needs. In this case, there are disputes about causation of harm and the plaintiff’s reasonable needs assuming causation is made out.
As to the whether or not the plaintiff has suffered the harm she alleges as a result of the incident, I note below the plaintiff’s evidence as to her injuries and disabilities. The plaintiff said that she was in constant, debilitating and severe pain. She presented to the court as profoundly disabled, and unable to walk without a walking aid. It is the plaintiff’s case that the onset of severe pain occurred soon after the incident, and it continued to escalate through the end of 2016, 2017, 2018 and to date. I note that she did not consult a treating orthopaedic specialist or neurosurgeon until August 2018 when she saw Dr Olsson, about two years after the incident. I do not accept that the incident caused the plaintiff the harm which she identified in evidence, for reasons which are addressed below.
As to the plaintiff’s reasonable needs, I note that in Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649, the High Court considered the method of assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case Barwick CJ said, at 661, that “the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff”, and at 662 that “the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment”. In arriving at judgment on those issues, a court “must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be”: see Moran v Nominal Defendant [2008] NSWSC 804, where the principles are briefly collected by Hislop J at [38].
These are the principles which must be applied when determining the plaintiff’s likely award of damages.

Failure to Call and Cross-examine Witnesses

Before considering the medical evidence, I observe that the parties conducted the trial without calling expert witnesses for cross-examination, and did not avail themselves of the court’s practice and procedure for the calling of concurrent evidence. It cannot be said that the medical expert reports were not in conflict. Indeed, on some material issues they were. In particular on the question of medical causation of the plaintiff’s alleged injuries and disabilities, they were far apart. That the parties chose not to call the medical experts for cross-examination put the court at a disadvantage: see Cupac v Cannone [2015] NSWCA 114 and Majkic v Bonanno [2008] NSWCA 253.
I have done my best, dealing with the medical reports and notes with which I have been provided, to try and determine if the incident caused the plaintiff any lasting disabilities. I note that the plaintiff’s alternate treating general practitioner Dr Mallick and her treating psychiatrist Dr Malik were not called in her case. I rejected the tender of a report of Dr Malik on the second day of trial as it contravened the Rules. In the circumstances, and at the urging of both counsel, I find only that the failure to call Dr Mallick, general practitioner, would not have advanced the plaintiff’s case.
Taking into account all of the medical evidence, I find that the plaintiff has failed to discharge her onus of proof with respect to the medical aetiology of her present condition, and I am not satisfied that her current alleged injuries and disabilities arise from the incident on 4 September 2016. I turn to each item of medical evidence tendered in the matter.

Medical Evidence

Dr Bodel

Dr James Bodel, orthopaedic surgeon, provided two medico-legal reports for the plaintiff dated 23 May 2017 and 19 September 2017. They are second and third in time of the reports tendered by the plaintiff. I note that the plaintiff has never seen an orthopaedic specialist for treatment of her alleged injuries, and that Dr Bodel examined the plaintiff more than 20 months prior to the hearing.
Dr Bodel examined the plaintiff once, on 16 May 2017. He noted that the plaintiff had been in receipt of the disability support pension since August 2009 and had significant psychological issues as a consequence of a house fire and the loss of custody of her children.
As to the mechanics of the fall, the plaintiff told Dr Bodel that she twisted to the left-hand side initially, and then threw herself around to the right so that she could grab the sink. In so doing, she twisted her neck, middle back and lower back. She took some painkillers the following day and then had a ski lesson but she lasted only half an hour. The next morning she called an ambulance which took her to Cooma Hospital, where she was observed and kept overnight. The plaintiff’s general practitioner Dr Castleman apparently told her that she had a musculoskeletal injury but made no specific diagnosis.
The plaintiff told Dr Bodel that she had continuing pain in the shoulders, in the interscapular region of the thoracic spine and also in the thoracolumbar region. In the lumbar sacral area there was pain that radiated to the buttocks and thighs and she reported some tingling in the feet. The plaintiff reported that she had made minimal, if any progress since the injury almost nine months previously. Prolonged sitting or bending, twisting or lifting aggravated the pain. She could no longer walk her dog. She tried to walk a little on her own, had great difficulty with household maintenance and cleaning activities and could not engage comfortably in sexual intercourse because of her injuries. Her driving tolerance was about 20 minutes.
On examination, the plaintiff was found to have no spinal deformity, but she complained of tenderness in the trapezius muscle at the base of her neck on the right-hand side. She had a reduced range of neck flexion, extension and rotation in all directions, but was most restricted on rotation to the left. There was symmetry of neck movement. She had full shoulder abduction and rotation and full elbow, wrist and hand movement. There was no clinical sign of radiculopathy (pinched nerve) in the upper limbs. There was a good range of lateral bending and rotation of the thoracic spine but tenderness at the lumbar sacral junction, and she reached forward in flexion with her hands only to the knees. She had backache at this point, and also on extension and a reduced range of lateral bending to the left. There was guarding on the right side, but no evidence of nerve irritability or clinical signs of radiculopathy.
Dr Bodel had no x-rays or scans before him, and so was uncertain as to the underlying pathology. He suspected that the plaintiff had sustained soft tissue injuries and queried whether or not she may have had suffered a disc injury. He believed that the plaintiff required a course of physiotherapy and further investigation to optimise the assessment of her injury, but thought that the plaintiff’s clinical condition had stabilised at the time of examination. Dr Bodel believed that the plaintiff would struggle with personal and domestic activities at home, and that her ability to undertake personal care items such as showering and dressing had been compromised by her injury. Thus, he was of the view that she would require intermittent assistance indefinitely to manage these needs. In his opinion, the plaintiff’s complaints were causally related to the effects of the injury that occurred on for September 2016. No further or detailed reasons are given for these conclusions.
Dr Bodel provided a second report of 19 September 2017, after perusing the Walters Road Medical Centre notes and investigations including a bone scan dated 25 October 2016, which reported some changes in the carpometacarpal joint at the base of the thumb on the right-hand side, and in a rib which might reflect a fracture. I note that the Walters Road Medical Centre records were not tendered in evidence.
A report of a CT scan of the cervical spine and the lumbar spine dated 23 September 2016 confirmed that there was some degenerative change in the cervical region at C3/4 with a severe foraminal stenosis on the right-hand side at C3/4. In the lumbosacral region, there was moderate central canal stenosis at L4/5 and L5/S1 and foraminal stenosis also at L5/S1 with moderate facet joint arthropathy throughout the lumbar spine. A plain x-ray of the thoracic spine was said to show normal bone density and alignment, and no end plate sclerosis, irregularity or destruction. No advanced spondylotic changes were evident. In the lumbosacral region there was degenerative change in the lower lumbar segments.
Dr Bodel considered that the additional information indicated that the plaintiff has some degenerative changes which were to be expected for a person in her late 40s. There was no evidence of any acute fracture apart from a possibility of a rib fracture. In Dr Bodel’s opinion, the plaintiff’s ongoing complaints of pain arise as a consequence of a soft tissue aggravation of these underlying degenerative conditions. Thus, Dr Bodel accepts a temporal basis for medical causation in the plaintiff’s case, but unfortunately does not explain why. In the circumstances, without an explanation of why the aggravation has resulted in the significant disabilities set out in paragraph 84 above, I have difficulty in accepting Dr Bodel’s opinion.

Dr Andrew Porteous

Dr Andrew Porteous, occupational physician, reported for the plaintiff on 1 February 2018. No curriculum vitae or letter of instruction was appended to his report, although I note that he is a fellow of the Australasian Faculty of Occupational and Environmental Medicine which indicates that he specialises in preventative approaches to health and safety in the workplace. I note that Dr Porteous reviewed and considered the clinical notes of Cooma Hospital and the Hills Clinic, neither of which were tendered in evidence. His report is fourth in time of the plaintiff’s medical reports tendered at the hearing.
The plaintiff told Dr Porteous that she went into a toilet, sliding the door back expecting there to be a level floor, and as she went to step forward into the bathroom she fell initially to the left towards the toilet, and then to the right and grabbed the sink in front of her to stop herself from falling.
From the time of the incident, the plaintiff said that she had continued with chronic pain in the cervical, thoracic and lumbar spines and in the posterior shoulders. She reported that she had made very little progress, but had not been referred to a pain, orthopaedic or spinal specialist. She said that she retired from her previous occupation, and was being supported by her partner.
At the time of the report the plaintiff had cervical, thoracic and lumbar pain rated 5/10 on a pain scale, every day increasing to 10/10. She had dullness in the bottom of both feet and sometimes shooting pain in the legs. She was taking Palexia 100 mg per day for pain relief, sometimes taking an extra 50-100 mg. She had a constantly disturbed sleep. She used to enjoy travelling, socialising, going for drives and walking the dog but could not do any of that now.
The plaintiff reported a history of anxiety and the use of Valium on average twice a week. She had been seeing a psychiatrist (Dr Malik) in relation to her psychological condition from an assault and saw him every four to six weeks. She took Ritalin for Attention Deficit Hyperactivity Disorder (ADHD). The plaintiff had been a professional call girl since 1988 but stopped in about January 2016.
Examination of the cervical spine showed 50% extension, and flexion with guarding but no spasm. She had tenderness on the base of the left neck. Examination of the shoulders and thoracic movement showed a full range of motion. She had normal power sensation and reflex in the upper limbs. She had 50% of lumbar range, with back discomfort limiting this range. A slump test was negative. She reported to be dull on the soles of both feet, but had normal reflexes and power and she did not meet the criteria for diagnosing radiculopathy. Her gait was normal.
Dr Porteous diagnosed musculoligamentous strain, and aggravation of degenerative change in the cervical, thoracic and lumbar spine. He was of the view that the plaintiff now has a Chronic Pain Disorder (CPD), secondary to the initial injury with ongoing chronic strain conditions. In his view, the plaintiff was restricted from frequent or constant bending, moderate or heavy lifting, pushing, pulling or carrying and restricted from frequent or constant thoracic twisting. I note that Dr Porteous has no psychiatric qualifications, and does not appear to have the requisite expertise to diagnose a CPD.
In Dr Porteous’s opinion, the plaintiff required an MRI scan of the cervical and lumbar spine, and an orthopaedic review to clarify treatment options in the future. She needed to see a pain specialist one to three times a year for the foreseeable future. Referral is reasonably required to a rehabilitation physician for review for rehabilitation and self-managed exercises. He also believed that there was a reasonable need for an exercise physiological program to increase function.
Dr Porteous expressed an opinion that the plaintiff’s restrictions meant that there was some domestic work that the plaintiff could not do without further aggravating her condition, including some of the cleaning, some of the vacuuming and mopping, some of the cooking, some of the making the beds, some of the spring cleaning such as washing the windows, carrying some of the heavy shopping, some of the hanging of the washing, some of the folding and ironing, and moving heavy furniture. I presume that he means that he found her fit to perform some of those activities. In his opinion, the plaintiff would reasonably require professional domestic and home care support for three to four hours a week. He believes that the plaintiff’s condition has stabilised, and the need for support will more than likely remain for at least the medium-term, and more likely than not for the foreseeable future.
In Dr Porteous’s opinion there is a temporal connection between the current chronic pain and the accident, as there was no pain in these areas prior to the accident, and there is no information to suggest otherwise. However, he notes the possibility that there was a psychological component to her ongoing pain and restriction, which is outside of his area of expertise.
I am unable to accept Dr Porteous’s prescriptions as to the plaintiff’s needs, as they are based on a single consultation more than a year ago. He is not an expert orthopaedic specialist, or a rehabilitation specialist. Further he does not attempt to determine a cause for the plaintiff’s CPD, which I have found he is not qualified to diagnose.

Dr Alan Home

Dr Alan Home, occupational physician, reported on 6 April 2018 for the defendant. Like Dr Porteous, Dr Home had before him the clinical notes and records of Cooma Hospital and the Hills Clinic, both of which were not in evidence.
The plaintiff presented to Dr Home with overt anxiety and generalised tremor. She then took a dose of Palexia 200 mg during the examination, which relieved her anxiety and tremor. The plaintiff told Dr Home that she had not suffered neck or back pain before the accident, and could not recall investigations of the cervical spine performed in 2015, prior to the incident, at which time there was a documented history of neck pain referred to both upper limbs. The plaintiff reported a past psychiatric history including anxiety and Post Traumatic Stress Disorder (PTSD) which she linked to episodes of assault, rape, and a malicious fire at her residence. She reported that she was taking medication under the management of a psychiatrist, and was attending regular counselling in the period leading up to the incident. She was aware of a previous diagnosis of bursitis at both shoulders and had undergone corticosteroid injections with some benefit prior to the incident.

With respect to the incident, the plaintiff said that as she fell forward toward her left side, she managed to regain her balance by twisting to the right by grabbing hold of the sink in order to prevent herself falling. She believed she twisted her back in the process and indicated the thoracolumbar junction as the site of her pain. At Cooma Hospital the doctors provided her with Endone analgesia. She reported subsequently using strong analgesia, and said that she gradually increased her use of Palexia up to 300 mg a day.
The plaintiff’s symptoms at the time of report were midline back pain at the thoracolumbar region. The pain extended up to the neck and down to the lower lumbar spine, was constant and diffuse and often 10/10 in severity. It was exacerbated by prolonged sitting, standing and lying down. With the use of the narcotic analgesic Palexia, the pain settled down to 5 to 6/10. She had bladder urgency and episodes of diarrhoea, pain extending from the buttocks to the top of the thighs posteriorly, and described constant paraesthesia in her feet. The plaintiff reported sleep disturbance. She said she could lift approximately three kg in weight but she did not undertake any domestic chores apart from occasional bench cleaning and simple cooking.
Dr Home reviewed the imaging of 2015 and 2016. An examination of the cervical spine revealed normal spinal curvature without muscle spasm. Cervical motion was preserved in all planes. Right and left lateral flexion were symmetrically performed to the normal range. At the right shoulder there was no muscle wasting. Examination of the left shoulder revealed arm normality on inspection. There was no muscle wasting. Impingement signs were negative and there was full range of active motion at the elbows. Examination of the lumbosacral spine revealed normal spinal curvature without muscle spasm. Flexion was well performed. Extension was reduced to half the normal range with a complaint of lower back pain. Thoracic rotation was performed 50° bilaterally. Left lateral flexion was performed to half the normal range on each side with the plaintiff reporting lower back pain with extremes of motion. Neurological examination of the lower extremities was normal.
In Dr Home’s view, the plaintiff may have suffered a strain injury to the thoracolumbar junction region, noting that her initial pain was primarily in the lower thoracic level, which was the major source of pain. Dr Home noted that there were a number of unusual clinical features, including widespread tenderness without localisation. The pattern of her pain was atypical for organic pathology arising from the mechanism of her accident, a twisting injury to the spine. The absence of objective clinical findings, in Dr Home’s view, was inconsistent with the presentation of complaints of severe widespread pain. Dr Home believed that psychological factors were likely to be contributing to the presentation of physical disability. There was no bony abnormality in the lower thoracic region. There were some underlying degenerative changes in the lumbar spine unlikely, in his view, to be contributing to her condition.
Dr Home noted that the plaintiff was taking high doses of narcotic analgesia and at times had suffered from a history of alcohol and benzodiazepine use disorder, which continued following the incident. He said that there was a dependency upon narcotic analgesia, and some features of withdrawal evident in her history at examination. Diagnostic imaging demonstrated underlying degenerative change in the upper cervical spine which was also present prior to the incident, and confirmed on imaging performed in November 2015.
In Dr Home’s view, it is probable that the plaintiff sustained a twisting injury to the lower thoracic spine. However, Dr Home was unable to find any objective evidence of significant spinal injury, although he could not exclude the possibility that the plaintiff suffers from mild back symptoms. There was no objective evidence of muscle spasm, muscle guarding, restricted spinal motion, or clinical findings of radiculopathy. There was no restriction of shoulder motion. After returning from Cooma Hospital and seeing her general practitioner, there was no subsequent medical treatment apart from long-term use of strong analgesia. In Dr Home’s view, the plaintiff appears to suffer from psychiatric illnesses, including addiction to narcotic analgesia as well as her previously recorded addictions to alcohol and benzodiazepine medications.
Dr Home believes that the examination findings are inconsistent with the history provided by the plaintiff to the extent that he was unable to find any objective evidence of significant spinal injury. In comparison to the findings of Dr Porteous (see above), Dr Home did not find evidence of restricted motion of the cervical spine with guarding. He found evidence of full motion of the shoulders and thoracic spine. Dr Porteous recorded restricted right-sided spinal motion, but this was not observed at Dr Home’s assessment.
So far as treatment is concerned, Dr Home notes that the plaintiff had received very little treatment. The long-term use of simple analgesia would be reasonable, in his view. MRI scanning would not affect her management and he did not recommend rehabilitation review, pain specialist review or review by an exercise physiologist.
As to domestic assistance and care, based on the objective clinical findings, Dr Home is of the view that the plaintiff remains fit to perform all domestic chores. If the plaintiff did experience back pain, she might require assistance with heavier chores such as vacuuming and mopping. He anticipates a requirement for assistance to be about one hour per week, based on his examination.
As to the report of Dr Bodel dated 23 May 2017, and his findings of asymmetry of the cervical and lumbar spine, Dr Home notes that these findings were not evident on his examination. As to the report of Dr Porteous, Dr Home agrees with Dr Porteous that there is a significant psychological component to the ongoing complaints of pain and spinal restriction, but disagrees with the requirements for treatment set out by Dr Porteous in the absence of objective clinical evidence of significant local spinal pathology.

Dr Glen Smith

Dr Glen Smith, psychiatrist, provided a medico-legal report for the plaintiff dated 9 May 2017. This report is first in time of the medico-legal reports tendered by the plaintiff at trial.
At the date of the report, the plaintiff was living alone in a three-bedroom house rented from the Department of Housing. She told Dr Smith that in December 2005 her house had been burnt down. When the fire started, she and her three children were inside. She experienced severe anxiety and recurrent intrusive memories after this “attempted murder”. She received psychological therapy with Dr John Martin after this incident. She was admitted to Blacktown Hospital in 2006 on two occasions, although she was unable to recall the duration of the admissions and the treatment she had received. She stated that she had a brief admission to Blacktown Hospital after an accidental overdose in 2009, and was seen by Dr Ferguson, a psychiatrist. The plaintiff reported seeing Dr Malik, psychiatrist, at the Hills Clinic for the past four years (since 2013) and had been diagnosed with PTSD and ADHD. She had been admitted to Concord Hospital in 2009 for detoxification from benzodiazepine medications. She had previously had a pattern of problematic alcoholic consumption.
After the incident the subject of the proceedings, the plaintiff said she had frequently been restricted to bed because the pain had worsened if she “did stuff”. Her partner had been supportive and caring. She had two sessions of physiotherapy which were ineffective. She told Dr Smith that her mood had significantly worsened due do the pain and restriction in functioning. The plaintiff reported that she had been prescribed analgesic medication, including Lyrica, and the opioid analgesic medication Palexia. The Lyrica was ceased. She had recently travelled to the Philippines for three weeks and had spent time resting poolside, which made her feel better.
The plaintiff reported experiencing back pain radiating to both legs with electric shocks, and pins and needles. She said that her mood was predominantly depressed. She reported ongoing loss of interest in activities, insomnia and nightmares, but no early-morning awakening. She frequently spent the whole day in bed due to pain and depressive symptoms and she had experienced suicidal ideation. She experienced daily flashbacks and recurrent intrusive memories of previous traumatic incidents, including the events of 2005.
The plaintiff reported a history of problematic alcohol consumption in the past and stated that she had been admitted to two detoxification units in Perth in 1998 a few times. After her admission to Concord Hospital in 2009, she was admitted to the residential rehabilitation unit at Rozelle for four and a half weeks. She was discharged for stealing items she alleges she had not stolen.
The plaintiff told Dr Smith that her partner currently controls her use of alcohol, and that she had small bottles of spirits daily. She denied abuse of opioid medications. At the time of Dr Smith’s report, the plaintiff was on Ritalin, Palexia, quetiapine (Seroquel) and diazepam (Valium).
Dr Smith provided a provisional diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, PTSD, Benzodiazepine Use Disorder, and Alcohol Use Disorder. She reported the development of anxiety and depressive symptoms in the context of pain and restriction of functioning related to her back injury in September 2016. The symptoms have been clinically significant, but did not meet criteria for another disorder, specifically Major Depressive Disorder. She reported a previous history of Alcohol and Benzodiazepine Use Disorders and continues to use these substances.
In Dr Smith’s opinion the plaintiff described symptoms consistent with Adjustment Disorder with Mixed Anxiety and Depressed Mood developed on a background of PTSD and substance abuse disorders. In his view it is probable that her alcohol use is worsening her anxiety and depressive symptoms, and she should seek treatment for these conditions and aim for abstinence from all the addictive substances. Dr Smith believed that the plaintiff’s prognosis with respect to her Adjustment Disorder depended on the prognosis of her back pain. If her back pain improved, her anxiety and depressive symptoms are likely to improve. Further, her prognosis would be improved by abstinence from addictive substances including alcohol and benzodiazepines.

Dr Selwyn Smith

Dr Selwyn Smith, psychiatrist, provided a report for the defendant on 23 May 2018, approximately one year after the examination by Dr Glen Smith. He reviewed, inter alia, the clinical noes of Cooma Hospital, the Hills Clinic, and documents produced on subpoena from the Walters Road Medical Centre, WHOS (We Help Ourselves, New Beginnings) and the Hills Clinic, none of which were tendered in evidence.
The plaintiff told Dr Selwyn Smith that in 2005 her house burned down, that the fire was a result of an attempted murder and she experienced PTSD as a result. She reported ongoing ruminations pertaining to that fire. She also reported that she had been under the previous care of Dr Ferguson, psychiatrist, following an overdose in 2009. She was admitted to Blacktown Hospital in 2006 on two occasions after taking overdoses of medication. More recently Ms Caruana has been attending Dr Malik, consultant psychiatrist, at the Hills Clinic. She had attended him since approximately 2012. Ms Caruana reported that she had been physically assaulted on a number of occasions and had been sexually assaulted. She had previously been admitted to Concord Hospital in 2009, the purpose of which was to withdraw from benzodiazepines. She reported abuse of other substances including alcohol, amphetamines and cocaine. The plaintiff’s history was generally as stated to Dr Glen Smith.
At the time of examination, Ms Caruana was still consulting with Dr Malik on a regular basis. Her current medications included Palexia 300 mg per day (increased from 50 mg per day), Ritalin 60 mg per day, diazepam 5 mg as needed, Seroquel 25 mg as needed and Zoton 30 mg per day.
Ms Caruana told Dr Selwyn Smith that as a result of the fall she twisted her neck and injured her mid and low back. At the time of her examination with Dr Selwyn Smith, Ms Caruana reported ongoing pain in her shoulders and back region. The pain also radiated to her buttocks. She stated that the pain was significant and she was not able to undertake any activities. She told Dr Selwyn Smith that the accident had ruined her life, but that she was able to care for herself and was not restricted in undertaking her personal appearance or hygiene. She could no longer drive a manual vehicle and now drove an automatic vehicle. She stated that she was unable to walk and unable to undertake her domestic tasks because of her pain which she reported had worsened. Ms Caruana said that she had been depressed in response to the effects of the accident. At the time of the examination, Dr Selwyn Smith observed that the plaintiff did not reveal a depressed or anxious affect, and further that her emotional expression was appropriate to her thought content.
Dr Selwyn Smith conducted a review of the various documents that were provided to him. He noted that Dr Glen Smith was of the view that Ms Caruana had developed anxiety and depressive symptoms in the context of pain and restrictions and functioning related to her back injury. He noted Dr Bodel’s conclusion that the plaintiff’s ongoing complaints of pain arose as a consequence of soft tissue aggravation of an underlying degenerative condition. He noted Dr Porteous’s conclusion that the plaintiff suffered a musculoligamentous strain and aggravation of degenerative changes in the cervical, thoracic and lumbar spine and that he had diagnosed a CPD. Dr Selwyn Smith noted the clinical records of Cooma Hospital, which reveal that the plaintiff was admitted to the ward for social reasons only. On that date she was complaining of leg pain, but was walking freely and independently. Dr Selwyn Smith reviewed the records of the Hills Clinic, which documentation contained a pain management evaluation undertaken on 20 October 2012. The plaintiff was then utilising Palexia 50 mg at the time of the pain inventory. In his review of documents produced by WHOS, Dr Selwyn Smith notes that the plaintiff was diagnosed with Bipolar Disorder in early 2010 when she was utilising Seroquel and Naltrexone. She had also been diagnosed with a repetitive stress injury in the hands and a pinched nerve at C3, C4 and C5. The primary drug of concern was alcohol, with “second-rate” drugs of concern being benzodiazepines, specifically Valium and Xanax.
In his review of documents produced by the Hills Clinic pursuant to a subpoena, Dr Selwyn Smith notes a report from Dr Usman Malik dated 27 July 2017. In that document, Dr Malik reported on the plaintiff’s background history. Dr Malik stated that she had rebelled in high school and suffered from ADHD. He diagnosed her with a Bipolar Mood Disorder and ADHD. She had been utilizing a mood stabilizer and antipsychotic medications for her Bipolar Disorder as well as Ritalin for her ADHD. She had suffered from multiple traumas including being raped, a house fire and physical injuries that led to chronic pain. Her mental health problems included becoming paranoid and disorganised. Her mood could fluctuate toward depression when she became quite teary and distressed. Dr Malik was of the view that there was a causal nexus between her mental health, including her disorganisation caused by the ADHD, and the offences committed upon her (noted above). Dr Malik stated that he had been treating Ms Caruana since January 2012. In addition to the diagnoses established, he also stated that she suffered from a Schizoaffective Disorder. She had persecutory beliefs regarding her computer and mobile phone being hacked in the context of a domestic violence relationship she was in at the time.
Based on the plaintiff’s history and his clinical examination, it was Dr Selwyn Smith’s opinion that Ms Caruana, prior to the accident that occurred on 6 September 2016, had a well-documented history of a number of psychiatric disorders including PTSD, Bipolar Affective Disorder, ADHD, Schizoaffective Disorder and polysubstance utilisation including an Alcohol Use Disorder and chronic benzodiazepine utilisation. She had also been diagnosed with an eating disorder.
In Dr Selwyn Smith’s opinion, Ms Caruana did not develop a formal psychiatric disorder arising from the accident that occurred on 6 September 2016. As to Dr Porteous’s view that she suffers from a CPD, in Dr Selwyn Smith’s opinion the plaintiff did not demonstrate diagnostic criteria for a Somatic Symptom Disorder or a CPD, which I accept, as Dr Selwyn Smith is qualified to give such an opinion. Further, in his view any symptomatologies from a psychiatric point of view relating to the accident were normal variants in response to pain. In his opinion, Ms Caruana’s current psychiatric presentation is dominated by her pre-accident psychopathology and there is no clinical evidence that her psychiatric disorders have been exacerbated by the accident that occurred on 6 September 2016.
In Dr Selwyn Smith’s opinion, the plaintiff’s dominant psychiatric presentation is related to her pre accident psychiatric disorders, and he notes that she has not sought separate psychiatric treatment in relation to the accident of 6 September 2016. Psychiatric and psychological treatment pertains to her pre-accident psychopathology. In his view, Ms. Caruana suffers from pre-existing psychopathology that is unrelated to the accident, and suffers from the following cycle of psychiatric disorders: PTSD chronic in duration, ADHD chronic in duration, Bipolar Affective Disorder chronic in duration, Alcohol Use Disorder chronic in duration, benzodiazepine dependence chronic in duration, and Schizoaffective Disorder. Further, in Dr Selwyn Smith’s opinion, the causes of the plaintiff’s psychiatric condition are due to environmental and genetic factors unrelated to the accident in question, and any treatment needs are related to pre-existing psychopathology. In Dr Smith’s opinion the plaintiff’s psychiatric injury dates from approximately 2009 when a fire engulfed her home. Following that incident, she developed heightened levels of anxiety and depression and she was awarded a disability support pension for the diagnosed PTSD.
As to the report of Dr Glen Smith, Dr Selwyn Smith notes that he diagnosed the plaintiff with the additional Adjustment Disorder and attributed this to the accident in question. In Dr Selwyn Smith’s opinion, it is more likely than not that the plaintiff’s symptoms of anxiety and depression, sleep disturbances, feelings of worthlessness, concentration impairment and suicidal ideation are related to pre-accident psychopathology and not to the accident in question. He disagrees with Dr Glen Smith who introduced the additional diagnosis, despite the prevalence of ongoing alcohol abuse and benzodiazepine dependence. He says that one needs to be cautious in introducing an additional diagnosis such as an Adjustment Disorder with Depressed and Anxious Mood in the presence of such compounding factors relating to alcohol excess as well as benzodiazepine utilisation. In his opinion, the plaintiff’s dominant symptoms are related to a pre-existing and long-standing history of PTSD, Bipolar Affective Disorder, Schizoaffective Disorder and ADHD.
Unfortunately, neither psychiatrist gave evidence. I am unable to accept the additional diagnosis given by Dr Glen Smith, as Dr Selwyn Smith’s assessment is later in time, and Dr Selwyn Smith observed that the plaintiff did not reveal a depressed or anxious affect, I find that the plaintiff has not proved that she suffers the additional Adjustment Disorder on the balance of probabilities.

Records of the Living Waters Family Medical Practice

Records of the plaintiff’s usual general practitioner, Dr Philip Castleman, were tendered in the plaintiff’s case. Dr Varatharajan also saw the plaintiff at this practice from time to time. In addition, reports of MRI scans of the cervical, thoracic and lumbar spines were tendered in the same exhibit.
The records commence on 23 November 2006 and finish on 10 March 2018. The entry after 23 November 2006 is 9 March 2011, when Dr Varatharajan recorded that the plaintiff was “under psych” at Concord Hospital.
On 9 July 2012 Dr Castleman recorded that the plaintiff was taking Seroquel and Valium and had started on Ritalin. She had “interscapular + back pain in the lumbar area and right loin ache”. By that date she was also started on an antibiotic and Tramadol. On 8 October 2015, the plaintiff’s bipolar episodes and panic attacks were noted. On 23 October 2015, bilateral shoulder pain with signs of impingement was noted. On 29 October 2015, the plaintiff was noted to have bilateral bursitis in the shoulders, and she was taking Tramadol, Panadeine Forte and Valium. On 10 November 2015 Dr Castleman noted that the plaintiff had a CT of her cervical spine showing foraminal stenosis at C3/4 and C4/C5 and that she required physiotherapy and the anti-inflammatory Celebrex. She was also taking Panadeine Forte, Lyrica and Tramadol. By 29 March 2016, Dr Castleman recorded a history of a needle stick injury, and an examination demonstrated pain at the base of the plaintiff’s neck with some radiation. Thus, the records demonstrate complaints of back and neck pain and the use of significant analgesia prior to the incident.
On 23 August 2016, Dr Castleman recorded the plaintiff as having ongoing counselling. On the day before (22 August 2016), the plaintiff had taken photos of the local street and had been accosted by two men who approached and complained of her taking pictures whilst they were tree lopping. The plaintiff claimed that she was grabbed, the camera ripped off her neck and her jewellery pulled by another female and she was punched in the left zygoma. The camera was taken after she was hit again. The plaintiff was prescribed Panadeine Forte.
On 22 September 2016, Dr Castleman recorded that the plaintiff had a recent fall in a bathroom at Thredbo on 4 September 2016 after opening a sliding door and tripping on an elevated step behind the sliding door. She had time in the hospital with back pain and had been having bedrest since. She described pain along the thoracic and lumbar spine with a local muscle spasm and described pain radiating from the neck to the hands. Lyrica and Panadeine Forte were prescribed, and CT scanning and x-rays were requested. Her complaints to Dr Castleman occurred approximately 18 days after the incident. She did not present to the practice again for three months.
The plaintiff’s next recorded a visit to the practice was on 29 December 2016 with Dr Varatharajan when she complained about a rash after a blood test taken at a medical centre six weeks previously. She believed that she had “bugs out of her skin” with bite marks and blisters starting five weeks previously. There is no record of a complaint of back or neck pain. The next recorded visit is on 21 February 2017. Dr Castleman took a history of the plaintiff having had a rash on her lower legs and arms since 19 November 2016 when she thought “she had bugs”. She changed her bed linen and used an anti-scabies prescription. Other insects were found but the rash was resolving. There is no record of a complaint of back or neck pain. On 12 May 2017, some eight months after the incident, the plaintiff saw Dr Castleman. The history recorded on that day was that a rash persisted on the plaintiff’s legs. There is no record of a complaint of back or neck pain, but by this time the plaintiff had seen Dr Glen Smith for a psychiatric medico-legal opinion. This is also the first time Palexia is prescribed by this medical practice. The medico-legal consultation with Dr Bodel took place on 23 May 2017.
On 28 June 2017, the plaintiff saw Dr Castleman. The history recorded is as follows: “has had review of back pain persisting from solicitor. Suggested swimming plus rehab. Has had DUI near garage on 25 April after return from OS”. This is the first recorded complaint of a sore back to anyone at Living Waters Family Medical Practice since 22 September 2016, nine months previously.
On 29 June 2017, the plaintiff saw Dr Castleman when he ordered a pelvic ultrasound. On 27 July 2017 the plaintiff saw Dr Castleman. A history was recorded of a thyroid abnormality, and he took cultures of itchy areas of skins. He also recorded that the plaintiff had a psychiatric review. On 26 August 2017 the plaintiff saw Dr Varatharajan. He noted that the plaintiff was on Palexia for back pain, and noted a recent hospital visit for anxiety. In answer to the question, “Does the patient meet the New South Wales Ministry of Health definition of drug dependent?”, Dr Varatharajan responded “Yes”.
On 1 September 2017, Dr Castleman recorded that the plaintiff’s ex-partner had come to her home, and that others had asked her to supply drugs. The plaintiff next saw Dr Castleman on 15 September 2017. On that date she was recorded to have been fixated on worms and larvae in her bed. She had collected small bits of dirt and occasional gnats. On 22 September 2017 the plaintiff saw Dr Castleman. A history was recorded that she was still concerned about scabies, parasite and worm infection in her skin and that she had recently travelled on a cruise to Singapore, China and Thailand. She felt insects were in her home and that there were possibly birds in the roof. Dr Castleman noted the results of CT scanning. He also recorded that she had been to a “solicitor generated orthopaedic surgeon and psychiatrist” and wanted an MRI. She described ongoing back pain and parasthaesia from her hips. On 29 September 2017 the plaintiff attended Dr Castleman. He recorded a history of concern about her skin. On 6 October 2017, Dr Castleman recorded a history that the plaintiff had a report back from victim services after an alleged rape in 2012. She was noted to still have ongoing back pain. On 13 October 2017, Dr Castleman noted the plaintiff’s blood pressure and an ultrasound showing a partial double ureter.
On 1 December 2017 the plaintiff saw Dr Castleman. He recorded a history that the plaintiff had been to Fiji and had some scabs on legs and her arms and some dry skin. He recommended sorbolene. The plaintiff saw Dr Castleman on 8 December 2017. The recorded history was of recurring diarrhoea and a stool culture was ordered. The plaintiff saw Dr Castleman next on 22 December 2017, with a history of recurring skin infections. The plaintiff next saw Dr Castleman on 5 January 2018. The recorded history was of stable leg lesions, some drooping of the right side of the face on the left cheek after being punched in the left side in August 2016. On 12 January 2018 the plaintiff saw Dr Castleman. The history recorded was of small calluses on her left long finger with some small blood blisters on her left index finger. It was noted that she still had a legal case relating to her back injury at the Snowy Mountains and that she was booked in for rehabilitation on 31 January 2018. Dr Castleman recorded that in August 2016 the plaintiff had hit the left side of her face after an altercation.
The plaintiff saw Dr Castleman on 25 January 2018. The history recorded was of a CT showing intact facial bones. The plaintiff was still concerned with respect to swelling over her zygomatic arch. The plaintiff saw Dr Castleman again on 2 February 2018 when it was recorded that she “needs cytology x 3”. Pathology was also requested. On 6 February 2018, blood was collected by Dr Castleman. On 9 February 2018, Dr Castleman recorded a history of the plaintiff feeling better after a gastroenterology review. She had been advised to have MRIs of the neck, thoracic and cervical spines. She described pain in the webspace of her right thumb after grabbing a sink during a fall. She described breast aches.
On 16 February 2018, the plaintiff saw Dr Castleman who recorded a history that she had been seeing a psychiatrist and remained on Abilify and Ritalin. She was weaning off Valium and cutting back on Seroquel. She still described panic attacks. Her breast symptoms had resolved. The last notation in the record is 23 February 2018 when the plaintiff saw Dr Castleman. He recorded no history but he printed prescriptions for Alprim, Bactroban cream and Valium.
Thus, the records of Dr Castleman show recorded complaints of pain and/or disability relative to the incident on seven occasions, six of which post-date June 2017.

Report of Dr Castleman

Dr Philip Castleman, general practitioner, reported on 6 November 2018. He noted that the plaintiff started to attend his practice in February 2013. She had been under the care of her psychiatrist Dr Mallick since 2012. She had a complex previous psychological history and was commenced on Palexia for chronic back pain prior to attending the Living Waters Medical Centre Practice, which I presume means that she was taking Palexia prior to February 2013. She was first provided a prescription for that drug at Dr Castleman’s practice on 12 May 2017 (which accords with the records of the Living Waters Family Medical Practice). I find that the plaintiff was taking Palexia for pain relief prior to February 2013.
After the accident, the plaintiff first presented to Dr Castleman on 22 September 2016 with a history of pain radiating from her neck to her arms, and along her lumbar spine. Apart from local muscle spasm, there was no evidence of any neurological deficit. She was commenced on Panadeine Forte, Lyrica and heat packs. On 23 September 2016 she was referred for a CT of her cervical and lumbar spines. There was no evidence of an acute injury and changes which appeared on those scans were long-standing. On her lumbar spine CT there was no evidence of any acute injury. The plaintiff subsequently developed other medical issues related to her skin, iron deficiency and gynaecology problems, none of which, in Dr Castleman’s opinion, could be medically related to her fall in September 2016.
Dr Castleman says that the plaintiff was started on Palexia by her psychiatrist as a result of her chronic back pain. Dr Castleman notes that in view of her persisting pain symptoms, she was referred to Dr Gemma Olsson, neurosurgeon, for an opinion, as a subsequent MRI showed no evidence of an acute injury but the possibility of a Tarlov cyst, or more likely a Schwannoma which had been stable. Dr Castleman says that these conditions were not related to the fall. Apparently the plaintiff was referred by Dr Olsson to Dr Rodney Adler, a pain management specialist, to try to rationalise management of her back pain. I note that no report from, or notes of Dr Adler have been tendered in evidence. Dr Castleman says that the plaintiff’s long-term prognosis is guarded as a result of her complex psychological issues, and notes that Dr Olsson feels that there is unlikely to be any place for surgery in the plaintiff’s management.
Tendered with Dr Castleman’s report were reports of a CT scan of the cervical spine performed on 23 September 2016, a CT of the lumbosacral spine performed on 23 September 2016, x-ray reports of the thoracic and lumbar sacral spines performed on the same day. There is a report of an MRI of the lumbar spine performed on 19 June 2018 which reported no loss of cervical lordosis and no demonstrated fracture. It concluded that there was no evidence of recent injury and no nerve root compression, but there was an appearance of a Tarlov cyst, causes of which might include a neuroma. There is also a report of an MRI of the thoracic spine performed on 18 June 2018, which found the vertebral alignment to be satisfactory, no demonstrated fracture, no disc lesion or any nerve compression. A report of an MRI of the cervical spine performed on 15 June 2018 found the convertible vertebral alignment to be satisfactory, no fractures demonstrated and a spinal cord normal in size and diameter. A report of an MRI of the lumbar spine performed on 29 September 2018 (on referral from Dr Gemma Olsson) found an abnormality most likely to represent a Schwannoma with haemorrhagic and cystic degeneration.

Dr Gemma Olsson

The plaintiff’s treating specialist Dr Gemma Olsson, neurosurgeon, provided reports dated 3 July 2018, 21 August 2018 and 22 October 2018.
The first report, being a letter to Dr Castleman, says, inter alia:

I had the pleasure of seeing Karen today. You are aware that she is a woman with significant pain issues for which you supervised her use of Tapentadol. Her history is complex in that she had a fall on 4 September 2016 in the bathroom and she feels that her symptoms have started since that. She is a difficult historian. She suggests that numerous symptoms started at the same time as the fall. These include a feeling that her inside would turn upside down. I understand that she has had recent investigation for respiratory issues as well as for gastrointestinal issues associated with a low haemoglobin from the history that she is able to give.

I’ve had a look at her MRI scan of her cervical, thoracic and lumbar spine. She has no real neural compression at any level and certainly she is not able to describe a single radiculopathy. She does describe bilateral arm and leg pain associated with intermittent paraesthesia that really is in a glove and stocking distribution and not quite consistent with any neural compression. She has a very interesting congenital appearance of her lumbar spine with transitional sacral vertebrae as well as a loss of her lumbar lordosis. I’m not sure that this is necessarily contributing to her pain syndrome and I have taken the liberty of referring her to the chronic pain and spine team at Westmead Hospital as I feel that I have very little to offer her.

Interestingly, she has one other lesion within the spine at the level of L5/S1. This has been described as a Tarlov cyst, although I am not sure that this is my highest differential. The lesion is in a right para vertebral position. Again I am not sure that this is contributing to her pain syndrome. However I think this lesion does need serial investigation. I would like to see her again in three months time with repeat lumbar sacral imaging with godolinium. I explained all this to Karen and made the referrals. I would also like to organize a nerve conduction study to exclude a neuropathy on the basis of the sensory changes that she describes. Once these investigations have occurred I will be in contact with you with the results.

[emphasis added]

In a report to LHD lawyers dated 21 August 2018, Dr Olsson said:

I’ve seen Karen on one occasion and this was on 3 July 2018… Karen complained of pain in her neck, her upper spine and lower spine that she believes commenced following a fall in September 2016. She feels that since the fall, she is been in constant pain. She feels that the pain has had a significant impact on her life. Particularly, she describes that on 3 September 2016 she slipped in the bathroom at the Ski Rider Hotel as she was walking through the door of the bathroom. She says that the pain started immediately following the fall. I understand that this was investigated immediately within 48 hours of the fall at the local hospital and subsequently by her local doctor. No acute bony fracture was found nor acute injury warranting more than pain relief was discovered. The pain that Karen describes is difficult to pinpoint. She is not an easy historian. She describes pain in the axial part of her neck and thoracic spine. She does describe pain going into both her shoulders. She describes pain in both her legs going into her buttocks. Particularly, she does not describe any radicular sounding pain or pain going into her arms or legs associated with the pain in her spine. She does note that she has tingling in her arms and legs, this particularly starts in her hands and feet and travels up the arms and legs a short distance. Again this is not in a particular radicular disorder distribution. The pain affects her daily living. She requires daily pain relief for it. She currently takes Tapentadol under the care of her local doctor. She has trialled numerous other medicines including simple analgesics and opiates. She has a complex psychosocial history including an unnamed psychiatric history. I note that she is on quetiapine. She is a somewhat chaotic historian in keeping with this history.

On my examination, I was not able to elicit any weakness in her arms or legs. She certainly had an antalgic spinal movement including neck movements. I felt that the movements of her spine and neck were limited by her pain. This may have been somewhat effort related. She personally presented as an unwell looking woman who appeared to be quite miserable, although she had a very flat affect in keeping with the likely psychiatric diagnosis. She was at times agitated during our discussion and also teary.

You asked specifically as to whether or not the MRI findings of her thoracic spine can be reasonably attributed by way of cause or aggravation to her accident. The MRI finding of her thoracic spine shows some early disc desiccation at some levels, a normal appearance to the spinal cord with the conus terminating normally at T 12 to L1, no fractures, and normal vertebral alignment. It shows no evidence of nerve root compression. Within the vertebral body of T5 there is a 9 mm lesion, the appearance of this is consistent with a haemangioma. Specifically, hemangiomas are congenital lesions. This will not, in the normal course of events, cause the pain whether this is related to a musculoskeletal injury or not and as such I feel this is not related to her presentation. The other findings of her MRI scan are in keeping with degenerative changes which are minor. I believe her thoracic spinal pain does not have a specific relationship to the findings of her MRI scan.

My diagnosis for Karen is that she has a chronic pain condition. This is related for her to a fall in September 2016. It is not related to a specific bony or new nerve root injury in her spine. It is exacerbated by her psychosocial diagnoses. The treatment for Karen suggested by me is referral to a chronic pain team which I’ve taken the liberty of doing. I’ve organized nerve conduction studies to see if we might find a diagnosis for her dysaesthesia. I would recommend continuing with her current pain management while waiting for the opinion of a chronic pain team and I would advocate for her to see be seen by a physiotherapy group whose interest is in managing patients with chronic pain.
I believe Karen’s prognosis to be very guarded, unfortunately, given her complex past and current medical history in the context of chronic pain. I believe that she is unlikely to be without pain in the short, medium or possibly even long-term. She does not require neural surgical or orthopaedic spinal intervention and I believe will require only ongoing pain management including psychological support.

[emphasis added]

In her letter to Dr Castleman dated 22 October 2018, Dr Olsson says:

She continues to be troubled by significant axial lower back pain. Today she focused mainly on her back pain symptoms and did not describe anything unusual in her arms or abdomen. On direct questioning she said that she had some dyspareunia with sexual intercourse and some pelvic pain intermittently which appears not to be significant. She does continue to have what she describes as her sciatic pain, which is pain that radiates from our mid and lower back into the tops of her thighs and fire buttocks. This certainly does not sound radicular and does not radiate into her leg. She described her pain as 10/10 and the most significant portion of the pain was related to her lower back centrally. She continues to intermittently take one of her own personal medicines for this... I suspect that she might be better on a regular simple analgesia associated with anti-inflammatories and a neuropathic pain modulating medicine. Again she and her partner seemed significantly focused on this being all associated with an accident that she had in 2016 despite her MRI scan showing multilevel degenerative change. Interestingly the abnormality in her anterior sacral region was again visualised. It has not changed in size and it continues to look like it is possibly a Schwannoma. She needs ongoing surveillance imaging for this lesion to ensure that it is not some other lesion and to ensure that it does not change. I’ve explained to her that even with pain symptoms, she probably would not warrant surgery, as the surgery would be difficult and likely to leave her with some issues with pain. Secondarily, I’ve sent her along for some nerve root injections and referred her for some physiotherapy at the public hospital which I think she needs for the ongoing management for chronic axial back pain. Some of the radiation into the tops of her buttocks could be related to facet joint disease and certainly on her MRI scan this is evident.

Thus, with respect to medical causation, Dr Olsson says that whilst the plaintiff believes that her pain and disability have been caused by the incident, it cannot be explained by objective findings. I accept the opinion of Dr Olsson, as she is the plaintiff’s treating neurosurgeon, and I find that the plaintiff has not proved that her pain and disability have been caused by her fall on 4 September 2016 at the motel on the balance of probabilities.

Discharge Summary from Blacktown Hospital December 2018

A discharge summary from Blacktown Hospital was tendered by the plaintiff in evidence. The admission date is 13 December 2018 and the discharge date 18 December 2018. I quote from that document as follows:

Dear Dr Philip Castleman, thank you for reviewing Karen Caruana, a 50-year-old female to be discharged on 18 December 2018 from… Blacktown Hospital. [She] presented to this facility with acute and chronic back pain. She was reviewed by the acute pain team at Blacktown Hospital who suggested a pain plan. She was also reviewed and cleared by physiotherapy. Summary of care: acute and chronic back pain – had spinal injections six weeks ago as per neurosurgeon…
– No recent trauma
– No acute changes on thoracic stroke lumbar stroke sacral x-rays
– CRP 25, otherwise bloods NAD, afebrile
– Patient normally takes Tapendatol at home. She does not follow a set regime but takes up to a maximum of 700 mg a day
– She was commenced on Tapendatol 100 mg BD and SC morphine in hospital
– Review by acute pain team following suggested the following (1) increase Tapendatol to 200 BD MR with maximum dose of 500 mg per day (2) cease SC morphine …
– Cleared by physiotherapy patient would like to use a three wheeled walker at home and will follow-up with outpatient physiotherapy to improve mobility. Background ADHD bipolar peptic ulcer disease IBS chronic pain secondary to MVA. Previously reviewed by Dr Olsson neurosurgeon. Nil neurological issue medical imaging…
Discharge plan for patient: Please follow up with GP for further pain management while awaiting chronic pain review. GP please review patient’s pain medications, APS advice is for 200 mg Tapentadol MR twice daily with PRN in between with a maximum of 500 mg of Tapentadol a day. GP to please review needs to continue Melexicam in light of previous history of melena in 2010 in the setting of anorexia for three days...

[emphasis added]

This record does not support the plaintiff’s case on medical causation. Further, there is no prescription by anyone at Blacktown Hospital for a need to use a three wheeled walker, which the plaintiff conceded in her evidence. This is unsurprising as the plaintiff had been reviewed and cleared by the physiotherapist.

The Plaintiff’s Medical Case

The highlight of the plaintiff’s medical case, so far as her physical complaints are concerned, is found in the second report of Dr Bodel dated 19 September 2017, where he attributes her ongoing complaints of pain to a soft tissue aggravation of an underlying degenerative condition, caused by the event the subject of the proceedings.
The highlight of the plaintiff’s case, so far as her psychiatric complaints are concerned, is found in the report of Dr Glen Smith dated 9 May 2017. His view is that as a result of the fall in August 2016, the plaintiff suffers an additional psychiatric condition, that being an Adjustment Disorder with mixed Depressed and Anxious Mood. In his view, the additional disorder is manifest in the context of pain and restrictions in functioning related to her back injury.
In submissions, Mr McManamey specifically disavowed a case that the incident caused the plaintiff to suffer an aggravation of her underlying psychiatric condition.

The Defendant’s Medical Case

As to the plaintiff’s physical symptoms, the defendant says that at its highest, as a result of the accident suffered in August 2016, the plaintiff may suffer from mild ongoing back symptoms causing a mild level of disability as set out by Dr Home.
As to the plaintiff’s psychiatric symptoms, the defendant submits that the symptoms of the alleged Adjustment Disorder – to the extent that the exist at all – are subsumed by the plaintiff’s pre-existing psychiatric condition, diagnoses and symptoms as set out by Dr Selwyn Smith.
I am unable to reconcile these differing opinions, except to the extent that the plaintiff likely suffered a soft tissue injury to her neck and back, which was likely to have resolved soon after her attendance on Dr Castleman on 22 September 2016, say within 2 weeks or by about 6 October 2016. I note that there is no recorded complaint in any record between the 22 September 2016 entry by Dr Castleman and the report of Dr Glen Smith of 9 May 2017. To find that her underlying degenerative condition has been permanently aggravated – and that it was aggravated to the extent as suggested by Mr McManamey – in my opinion is no more than speculative and is not supported by the medical evidence. As I have said, I do not accept that the plaintiff’s psychiatric condition has deteriorated in any way due to the incident.
I note that in such a case as the present I would have expected at least the notes of the plaintiff’s treating psychiatrist and the notes of the plaintiff’s alternate treating practitioner, which may have been of assistance in putting together the chronology of medical events.
In this case, the high point for the plaintiff so far as her physical complaints are concerned is Dr Bodel’s opinion that as a result of the incident, the plaintiff has suffered an aggravation of pre-existing pathology. This opinion was based on a single examination conducted on 16 May 2017. Mr McNanamey urged me to find that the aggravation caused her degenerative condition to be symptomatic for the first time. Much has taken place since the date of Dr Bodel’s examination. Indeed, the plaintiff gave evidence that her condition has significantly deteriorated since that date, so much so that she is unable to walk or do anything of any significance around her household. No treating medical practitioner gave evidence that there was a causal nexus between the plaintiff’s current condition and the incident in September 2016. Moreover, the plaintiff treating general practitioner Dr Castleman and her treating neurosurgeon Dr Olsson do not support the plaintiff’s case on medical causation. As a result, in my opinion the plaintiff has failed to prove, on the balance of probabilities, that the disabilities she presently suffers are as a result of the fall she sustained in September 2016, including the additional psychiatric diagnosis.
I accept, for the purposes of an assessment of damages, that the plaintiff suffered an aggravation of her pre-existing spinal pathology which caused her pain for several weeks after the incident. Thereafter, I find that the plaintiff has not proven on the balance of probabilities that her chronic pain and significant disabilities, which apparently continue to this day, were caused by the incident.

Non-economic loss

What then is the extent of Ms Caruana’s non-economic loss? An award of non-economic loss is an evaluative judgment: see Clifton & Ors v Lewis [2012] NSWCA 229 per Beazley JA at [33]. Section 16 of the Act speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (considering the like provision of section 79 of the Motor Accidents Act1988) is therefore relevant. More recently, the Court of Appeal considered those words in Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25.
In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum, but suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss:

consider and make findings on the elements in the evidence which are relevant to non-economic loss, being those relevant to an award of general damages;

conceive a (not the) most extreme case (which the court noted would certainly include quadriplegia); and

award damages between nil and the statutory maximum in the ratio which the judge determines, keeping in mind that the maximum is retained for "a most extreme case”.

In Zhang, Basten JA said that the purpose for which the assessment of severity is to be made is to identify the effect of the injuries suffered by a particular plaintiff.
In Coleman v Barrett [2004] NSWCA 27, Gzell J said at 63:

Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: "The expression `a most extreme case' requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by `a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others."

See also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5] and generally Hall v State of New South Wales [2014] NSWCA 154 per Leeming JA.
I note that as of 1 October 2018, the statutory maximum for non-economic loss under the Act is $635,000.
Mr Priestley contended that the plaintiff did not reach the 15% threshold pursuant to section 16 of the Act, and so was not entitled to an award of damages pursuant to that section. Indeed, he submitted that I could not be satisfied that the plaintiff sustained any injury of substance as a result of the incident. Mr McNanamey, on the other hand, submitted that I would find that the plaintiff was entitled to 30% of a most extreme case, which would yield damages in the amount of $146,000.
In the present case, accepting for the purpose of assessing damages only, that the plaintiff suffered an a soft tissue injury aggravating degenerative changes in her spine which caused her to attend Cooma Hospital, and that she had lingering pain for a period of about one month after the incident, I allow 22% of a most extreme case, or $28,500.

Past out-of-pocket expenses

There was a dispute about past out-of-pocket expenses, about which I am required to make a decision. The plaintiff made a claim for $7645.45, for the cost of MRI scans, medication, Medicare charges and the gap in Medicare expenditure. In light of the findings I have made that the plaintiff had a transient sort of injury likely entirely resolved by 6 October 2016, I allow only the cost of attending Dr Castleman on 22 September 2016, or $43.20, and the cost of CT scanning ordered by him, or $315.65. That totals $358.85.

Future out-of-pocket expenses

Assuming as I do that the plaintiff suffered a soft tissue injury which quickly resolved, and taking into account the most recent documentary evidence of the plaintiff’s treating neurosurgeon Dr Ollson and her general practitioner Dr Castleman, to the effect that there is little that can be done for her, I allow nothing in the future for ongoing out-of-pocket expenses.

Gratuitous care in the past

Whatever assistance the plaintiff may have required in the past as a result of the incident, I am unable to determine on the evidence what her reasonable needs might have been at any time following the accident, notwithstanding the evidence of the plaintiff and Mr Johansen on this topic. However, I am satisfied that at no time did she ever require six hours assistance per week for at least six months at any time. She has thus never satisfied the threshold set out in section 15 of the Act. I make no award under this head of damage.

Future gratuitous care

I note that the plaintiff makes no claim for commercial care in the future, and there is no evidence as to its cost in any event. The plaintiff’s case is that she requires the gratuitous care as set out in the report of Dr Porteous dated 1 February 2018, ie three to four hours per week. The plaintiff further asserts that her condition has deteriorated so significantly since the date of Dr Porteous’s report, that she requires gratuitous care in the amount of approximately six hours per day. Both the plaintiff and Mr Johansen gave evidence that she is currently receiving that amount of care, primarily from Mr Johansen. The defendant’s case, based on the advice of Dr Home, is that the plaintiff may require assistance of one hour per week.
I am not of the view that Dr Porteous, as an occupational physician, has the requisite expertise to prescribe care, and his prescription does not satisfy the threshold in section 15(3) of the Act of six hours per week in any event. The same can be said about the defendant’s expert occupational physician Dr Home. I would have expected a specialist rehabilitation physician and/or an appropriately qualified occupational therapist conducting a home visit to make a prescription for any care required, in order to establish the care needs of the plaintiff. In this case, no medical or para-medical practitioner makes any prescription for the amount of gratuitous care the plaintiff apparently currently receives or requires in the future.
In short, the plaintiff’s need for care arising out of the disabilities she allegedly suffered as a result of the incident has not been established on the evidence, and I would therefore make no award for future gratuitous care.
The plaintiff makes no claim for economic loss either in the past or in the future.
Had the plaintiff been successful, I would have assessed the plaintiff’s damages as follows:

Non- economic loss:

$28,500.00

Past out-of-pocket expenses:

$358.85

Future out-of-pocket expenses:

$0

Past gratuitous care:

$0

Future gratuitous care:

$0

TOTAL:

$28,858.85

Disposition

I make the following orders:

Verdict and judgment for the defendant;

The exhibits are to be returned;

The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; and

Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.

**********

Decision last updated: 17 May 2019

Medium Neutral Citation:	Caruana v Ski Riders Motel (Kosciuszko) Pty Ltd, trading as Ski Rider Hotel Motel [2019] NSWDC 182
Hearing dates:	19-21 February 2019
Date of orders:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Civil
Before:	Weinstein SC DCJ
Decision:	(1) Verdict and judgment for the defendant; (2) The exhibits are to be returned; (3) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; and (4) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.
Catchwords:	Torts – negligence – occupier’s liability – fall in modular bathroom – obvious risk – medical causation – assessment of damages
Legislation Cited:	Civil Liability Act 2002, ss 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5R, 16 Competition and Consumer Act 2010 (Cth), Schedule 2 Evidence Act 1995, s 140 Motor Accidents Act 1988, ss 79, 79A
Cases Cited:	Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649 Australian Safeway Stores v Zaluzna (1987) 162 CLR Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Cupac v Cannone [2015] NSWCA 114 Clifton & Ors v Lewis [2012] NSWCA 229 Dell v Dalton (1991) 23 NSWLR 528 Hall v State of New South Wales [2014] NSWCA 154 Jaber v Rockdale Council: [2008] NSWCA 98 Majkic v Bonanno [2008] NSWCA 253 Moran v Nominal Defendant [2008] NSWSC 804 Schultz v McCormack [2015] NSWCA 330 Southgate v Waterford (1990) 21 NSWLR 427 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3 Strong v Woolworths Ltd [2012] HCA 5 Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Category:	Principal judgment
Parties:	Karen Caruana (Plaintiff) Ski Riders Motel (Kosciuszko) Pty Ltd, trading as Ski Rider Hotel Motel (Defendant)
Representation:	Counsel: Mr McManamey (Plaintiff) Mr Priestly SC (Defendant) Solicitors: Turner Freeman (Plaintiff) Gilchrist Connell (Defendant)
File Number(s):	2017/188020

Non- economic loss:	$28,500.00
Past out-of-pocket expenses:	$358.85
Future out-of-pocket expenses:	$0
Past gratuitous care:	$0
Future gratuitous care:	$0
TOTAL:	$28,858.85