Carusi v St Mary's Anglican Girls School Inc - [2023] WADC 103

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CARUSI -v- ST MARY'S ANGLICAN GIRLS SCHOOL INC [2023] WADC 103
CORAM:   STEWART DCJ
HEARD:   24-28 FEBRUARY, 1-4 MARCH, 22-31 AUGUST, 1 & 2 SEPTEMBER, 7 & 31 OCTOBER, 1‑4 & 28 NOVEMBER 2022
DELIVERED          :   1 SEPTEMBER 2023
FILE NO/S:   CIV 3647 of 2018
BETWEEN:   ROSA CARUSI
Plaintiff
AND
ST MARY'S ANGLICAN GIRLS SCHOOL INC
Defendant
WEST COAST DANCE FESTIVAL INC
Third Party

Catchwords:

Tort - Personal injury - Fall in aisle at performing arts centre - Negligence - Occupiers' liability - Assessment of damages - Third party claim for contribution and indemnity - Turns on own facts

Legislation:

Building Regulations 1989 (WA)
Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed
Third party claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr T Lampropoulos SC
Defendant	:	Ms F A Stanton
Third Party	:	Mr G R Hancy

Solicitors:

Plaintiff	:	A & E Legal Pty Ltd
Defendant	:	Wotton + Kearney Lawyers (Perth)
Third Party	:	Gilchrist Connell

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

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Best Bar Pty Ltd v Warn [2019] WASCA 15
Coal Hub Pty Ltd v NSL Consolidated Ltd [No 2] [2016] WASC 257
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
Garnett v Qantas Airways Ltd [2021] WASCA 110
Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292
Gentle v Wright [2021] WADC 63
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
Griffiths v Kerkemeyer (1977) 139 CLR 161
Grincelis v House [2000] HCA 42; (2000) 201 CLR 321
Hodges v Frost (1984) 53 ALR 373
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kerr v Minister for Health [2009] WASCA 32
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Martin v Western Australian Sports Centre Trust [2021] WADC 125
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Morris v Zanki (1997) 18 WAR 260
Mousa v Marsh [2001] NSWCA 317
Nathaniel Corbett by his Next Friend Debra Todd v Town of Port Hedland [2021] WADC 55
Newman v Nugent (1992) 12 WAR 119
Nikolich v Webb [2020] WASCA 169
Panagoulias (by his Next Friend Fiona Averil Panagoulias) v The East Metropolitan Health Service [No 4] [2017] WADC 118
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sharman v Evans (1997) 138 CLR 563
Shire of Gingin v Coombe [2009] WASCA 92
Strempel v Wood [2005] WASCA 163
Todorovic v Waller (1981) 150 CLR 402
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Villasevil v Pickering (2001) 24 WAR 167
Wall v Cooper [2008] WASCA 53
Westina Corporation Pty Ltd v BGC Contracting Pty Ltd [2009] WASCA 213
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Zaya v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/as Energised Alliance [2019] NSWCA 320

Table of Contents

Overview

Summary of the claims

Mrs Carusi's claim against St Mary's

St Mary's defence

Between St Mary's and WCDF

WCDF defence

Issues arising for determination

The PAC

Structure and lighting of the PAC

Credibility of witnesses

Events of 3 October 2015

Duty of care

What was the risk of harm?

Was there a breach of duty?

Was the risk of harm foreseeable?

Use of the PAC

Use of the PAC by WCDF

Expert evidence

Dr Steven Chew

Dr John Culvenor

An area of disagreement - status of the aisle as a change of level or steps

An area of disagreement - application of the BCA and Regulations

An area of disagreement - lighting in the PAC

Findings

Was the risk of harm a 'not insignificant' risk?

Section 5F and s 5O of the CLA

Section 5B(1)(c) of the CLA - reasonable precautions

Causation

Does s 6 of the OLA apply to the facts of this case?

Contributory negligence

St Mary's third party claim against WCDF

Duty of care

What is the risk of harm?

Was the risk of harm foreseeable?

Was the risk of harm a 'not insignificant' risk?

Section 5B(1)(c) CLA - reasonable precautions

Causation

Was WCDF's breach of duty (if any) causative of Mrs Carusi's injury?

St Mary's claim for contractual indemnity against WCDF

The relevant law

Relevant provisions of the Hire Agreement

Injuries and medical treatment

Medical evidence

Dr Brett Watson

Dr Roger Goucke

Dr Heng Tan

Dr Dawn Barker

Dr Brett Bairstow

Professor Jerzy (George) Sikorski

Dr Daniel James Meyerkort

Findings as to condition of Mrs Carusi's right foot prior to 3 October 2015 and her footwear on 3 October 2015

Other evidence

Mr Michael Parry

Relevant law

On what basis should damages be assessed?

Loss of earning capacity

Relevant law to assessing economic loss

Mrs Carusi's background and work history

Past economic loss

Past loss of superannuation

Future loss of earning capacity

Future loss of superannuation

Special damages

Past gratuitous services

Interest on past loss

Future medical expenses

Future gratuitous services

Aids and appliances

Summary

Motor vehicle

Home modifications

Holidays

General damages

Summary of damages

STEWART DCJ:

Overview

The plaintiff, Mrs Rosa Carusi (Mrs Carusi), has claimed damages from the defendant, St Mary's Anglican Girls School Inc (St Mary's) for an injury she sustained at the Lady Wardle Performing Arts Centre (PAC).
St Mary's has made a third-party claim against the West Coast Dance Festival Inc (WCDF). WCDF is a non-profit voluntary association which conducts dance competitions in which dancers from various dance schools participate. WCDF used the PAC for a dance competition pursuant to a hire agreement.
On the morning of 3 October 2015, Mrs Carusi's daughter was a participant in the dance competition conducted by WCDF at the PAC. Mrs Carusi was a volunteer at the dance competition.
After ascending the right centre aisle and collecting score sheets from the dance adjudicator who sat some rows up from the ground floor level, Mrs Carusi descended the same aisle to the ground floor level where she fell and injured her right ankle.
Mrs Carusi claims that the injuries she suffered were as the result of St Mary's, as occupier of the PAC, breaching its duties at common law and under the Occupiers' Liability Act 1985 (WA) (OLA).
For the reasons which follow, I find that Mrs Carusi has not proven on the balance of probabilities that her injuries were caused by the negligence or breach of statutory duty of St Mary's. Accordingly, the action should be dismissed.
In the circumstances, the third party claim against WCDF will be dismissed.

Summary of the claims

Mrs Carusi's claim against St Mary's

Mrs Carusi claims against St Mary's for damages for breach of statutory duty owed to her under the OLA and in negligence.
It was not in dispute that St Mary's was the occupier of the PAC within the meaning of s 2 and s 5 of the OLA.
In her claim against St Mary's Mrs Carusi has pleaded that the 'last step' of the aisle was a 'fall/trip hazard' by reason of the following factors:[1]
(g)The height of the steps (including intermediate steps) varied from about 130 to 200mm, apart from the last step (onto the flat stage area), which was 250mm (the last step);
(h)The second last step was 130mm in height, and the next step (descending) was therefore 250mm;
(i)There was no warning sign or other indication that the last step was substantially lower than the previous step;
(j)Whilst there were lights on the side of seats adjacent to the steps illuminating the steps, there was no such light adjacent to the last step;
(k)During performances, the main lights in the performing centre were turned off (except on the stage), and the lighting in the rest of the centre was dim;
(l)The height and lighting of the last step was not in accordance with Building Codes/Regulations at the time that the [PAC] [was] constructed by the Defendant in about 1999, or as at 2015;
[1] Statement of claim, par 2(g) - 2(l).
It is claimed that injury could be caused to persons in the PAC and that, in the face of that foreseeable risk, St Mary's breached its duty of care to Mrs Carusi by:[2]
[2] Statement of claim, pars 5 - 6.
(a)failing to ensure that the steps of the [PAC] were safe for visitors/entrants;
(b)failing to erect signs, demarcate/mark‑off/cordon off or otherwise address the hazard;
(c)failing to take sufficient or adequate action to prevent persons tripping over/falling at the last step;
(d)failing to warn or advise visitors/entrants of the presence of the height discrepancy between the second last and last step;
(e)failing to sufficiently illuminate the area at the point where the height discrepancy occurred at the last step;
(f)failing to construct the steps in accordance with the relevant building standard/code; and
(g)failing to install an intermediate step at the last step, or to otherwise reduce the height of the last step, so as to minimise the trip/fall risk.

St Mary's defence

St Mary's admits that it owed Mrs Carusi a duty of care as an entrant under the OLA, but denies it breached that duty.
St Mary's:
10.1denies that there was a foreseeable risk (for the purposes of s 5B(1)(a) of the CLA (Civil Liability Act 2002) of not insignificant injury (for the purposes of s 5B(1)(b) of the CLA) to persons attending the PAC when traversing the last step, and says that, in the circumstances, a reasonable person in the position of St Mary's would not have taken any of the precautions pleaded in paragraph 5, and that by operation of s 5B(1) of the CLA it was not, at the relevant time, liable to take any of those precautions against any risk of harm inherent in the activity pleaded in paragraph 4 (attempting to negotiate the last step) or otherwise traversing the last step;
10.2denies that the plaintiff's fall was caused or contributed to by any negligence or breach of statutory duty on the part of St Mary's;
10.3repeats the facts pleaded in [3] - [7] and [9] above;
10.4says that by reason of its duty of care owed to the plaintiff, WCDF ought to have taken reasonable care to avoid the plaintiff suffering injury when traversing the steps of the PAC, including the last step, by:
10.4.1instructing or directing the plaintiff to convey reports from the adjudicators only during intervals and not during the performances;
10.4.2instructing or directing the plaintiff to obey the Sign by not using the Lower Doors for either exiting or entering the theatre of the PAC during the dance competition; and/or
10.4.3by otherwise implementing a safe procedure for the collecting and conveying of the adjudicators' reports to the competitors in the dance competition; and
Further, St Mary's says that it had no duty to warn of an obvious risk of falling while descending steps if a person does not take care.[3]
[3] Substituted defence, par 10.5.
St Mary's says Mrs Carusi voluntarily chose to walk down the steps and chose to do so during performances rather than during intervals, thus willingly assuming the risk for the purposes of s 5(2) of the OLA.[4]
[4] Substituted defence, pars 11.2 and 11.3.
In addition, St Mary's says s 6 of the OLA applies on the facts so as to relieve St Mary's of liability to Mrs Carusi.[5]
[5] Substituted defence, par 11.5.
If St Mary's is found liable, St Mary's says that Mrs Carusi was contributorily negligent.
St Mary's says:[6]
[6] Substituted defence, par 20(1)(a) - 20(1)(e).
(1)Mrs Carusi failed to take reasonable precautions against the risk of harm inherent in walking down the steps of the PAC, including the last step, by:
(a)failing to walk down the steps with caution;
(b)failing to be aware of the obvious risk of falling, tripping or losing her balance when using the steps;
(c)failing to watch where she placed her feet while she was walking down the steps including the last step;
(d)conveying the reports from adjudicators during performances rather than only during intervals; and/or
(e)using the Lower Doors to exit the theatre notwithstanding that they were closed and curtained from the theatre side and notwithstanding that they were cordoned off with a rope and preceded by the Sign on the Lower Foyer side.

Between St Mary's and WCDF

St Mary's claims WCDF is liable for contribution to St Mary's pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) by reason of its negligence.
St Mary's also claims against WCDF to be indemnified pursuant to the Hire Agreement.[7]
[7] Defendant's substituted statement of claim in the third party proceedings.
St Mary's claims a volunteer was required to repeatedly traverse the steps of the PAC in order to convey adjudicator's reports from the theatre of the PAC to the lower foyer (voluntary services).[8]
[8] Defendant's substituted statement of claim in the third party proceedings, par 5 (Third party proceedings papers for the judge, page 5).
St Mary's says that the voluntary services needed to be performed quickly or under pressure of time, or alternatively it was foreseeable that volunteers such as Mrs Carusi would believe that the voluntary services needed to be performed quickly or under pressure of time because:[9]
6.1the volunteer acting as the Runner (being a volunteer who conveyed sheets from the dance adjudicator to the lower foyer of the PAC), needed to ascend and descend the steps and enter and exit the theatre of the PAC during short breaks in the performances so as to avoid distracting dancers in the course of their performances; and
6.2the Runner needed to convey the adjudicator's reports to the Lower Foyer so that they would be available for collection by students and their parents who were waiting for those reports before they left the Dance Competition.
[9] Defendant's substituted statement of claim in the third party proceedings, par 6.
St Mary's claims that there was an inherent risk of injury to Mrs Carusi when she descended the steps of the PAC in that she was at risk of falling if she misplaced a foot on a step or tripped on a step, and the risk was heightened or increased by:[10]
8.2(i)Mrs Carusi engaging in traversing the steps repeatedly and/or quickly and/or under pressure of time or perceived pressure of time in order to carry out the Voluntary Services;
(ii)Mrs Carusi's morbid obesity; and/or
(iii)Mrs Carusi wearing wedged shoes or shoes with a wedge inserted into them or inserted into one of them.
[10] Defendant's substituted statement of claim in the third party proceedings, par 8.
St Mary's claims WCDF did not inform the participating dance school:
(a)that they were required to ensure that volunteers it supplied were physically fit to ascend and descend the steps of the PAC, were to wear suitable shoes and those with flat soles; and
(b)that they were required to instruct, direct or warn volunteers to take care when descending the steps of the PAC, not rush when descending the steps of the PAC, avoid being distracted by the dance competition when descending the steps of the PAC, and to watch where they placed their feet in the course of descending the steps.[11]
[11] Defendant's substituted statement of claim in the third party proceedings, pars 9 and 10.
St Mary's claims WCDF did not:
(i)assess Ms Carusi's fitness to be a 'Runner' (being a volunteer who conveyed reports from the dance adjudicator to the lower foyer of the PAC);
(ii)examine her footwear to see if it was suitable; and
(iii)instruct, direct or warn Ms Carusi not to be a 'Runner' unless she was physically fit to do so, unless she was wearing suitable shoes to take care when descending the steps of the PAC, to take precautions when descending the steps of the PAC including not to rush, avoid being distracted by the dance competition and watch where she placed her feet.[12]
[12] Defendant's substituted statement of claim in the third party proceedings, par 11.
St Mary's claims against WCDF to be indemnified pursuant to the Terms and Conditions of Hire under cl 7.1, cl 7.2 or cl 8.4.[13]
[13] Defendant's substituted statement of claim in the third party proceedings, par 16.
In summary, St Mary's claims it was a provision or regulation of St Mary's that patrons at the PAC were prohibited from using the lower doors of the PAC to enter the lower foyer during performances.[14]
[14] Defendant's substituted statement of claim in the third party proceedings, par 18.
Further, St Mary's claims it is entitled to indemnity under cl 8.4 because Mrs Carusi's claim is for losses, expenses, liabilities, claims and/or damages incurred by her as a member of WCDF's staff.[15]

WCDF defence

[15] Defendant's substituted statement of claim in the third party proceedings, par 19.

WCDF says it was a not‑for‑profit association of volunteers with a common interest in fostering the activity of dance for children.[16] Mrs Carusi offered to act and acted as a volunteer at the children's dance competition.[17]
[16] Substituted defence to statement of claim in the third party proceedings, par 3.3.
[17] Substituted defence to statement of claim in the third party proceedings, par 5.1.
WCDF says that Mrs Carusi was a mother of a child dancer and was not 'engaged' by WCDF. Mrs Carusi undertook simple tasks of handing trophies to children who were judged in the top three in their dance session, and collecting and carrying score sheets from the judge.[18]
[18] Substituted defence to statement of claim in the third party proceedings, pars 5.3.1 - 5.3.2.
WCDF says that the class of volunteers to whom a duty of care was owed were persons who volunteered to undertake straightforward tasks to hand out trophies or make score sheets available to parents at a dance competition and performing those tasks did not present any apparent risk of any or significant injury.[19]
[19] Substituted defence to statement of claim in the third party proceedings, par 7.2.
WCDF had no reason to inform a dance school in the manner alleged by St Mary's.[20]
[20] Substituted defence to statement of claim in the third party proceedings, par 9.
WCDF had no reason to undertake the assessment or examination, or to give to Mrs Carusi the instruction, or warning as alleged by St Mary's.[21]
[21] Substituted defence to statement of claim in the third party proceedings, par 10.
WCDF says that the duty of care to volunteers:[22]
12.1was owed by WCDF in its capacity as a not‑for‑profit incorporated association of volunteers that conducted a children's dance competition to foster the activity of dance;
12.2arose in the context of a children's dance competition that took place for the benefit of many parents and their children who were taught dance at many and different dance schools; and
12.3was to be exercised at the standard expected of such a not for profit volunteer organisation.
[22] Substituted defence to statement of claim in the third party proceedings, par 12.
WCDF in its defence to the indemnity claim under the Hire Agreement says that that there was no relevant provision or regulation of St Mary's, no Act or regulation and no conduct by WCDF that engaged cl 7.[23]
[23] Substituted defence to statement of claim in the third party proceedings, par 15.

WCDF says that as a parent volunteer helper, Mrs Carusi was not 'staff' of, and was not 'employed' or 'provided' by WCDF.[24]
[24] Substituted defence to statement of claim in the third party proceedings, par 17.

Issues arising for determination

Issues arise for determination with respect to the following topics:
•The history and construction of the PAC
•Structure and lighting of the PAC
•Events of 3 October 2015
•The use of the PAC by St Mary's and WCDF
•Consideration of expert evidence

The PAC

In 1995 the school board decided to construct a performing arts centre. The school principal at that time was Ms Audrey Jackson.
Toussaint Rayner Associates Pty Ltd was engaged to provide an initial design concept and to work with the architects to be approved by the school in the design of the PAC.[25]
[25] ts 786; Exhibit D 43 (letter from Toussaint Rayner Associates Pty Ltd to Ms Audrey Jackson dated 25 October 1996).
The building committee agreed that letters be sent to four architectural companies requesting their expression of interest in the project.[26] Ultimately, RJ Ferguson and Associates Pty Ltd was selected by the school as architects.[27]
[26] Exhibit D 44.
[27] Exhibit D 53 (letter from Mr Peter Mead, director of finance and administration to RJ Ferguson and Associates Pty Ltd).
Ms Jackson retired at the end of the first term in 1997 and that ended her involvement with the development of the PAC.[28]
[28] ts 800 - ts 801.
Ms Jackson confirmed that St Mary's was a kindergarten to Year 12 school with students ranging in age from about five to about 17. Ms Jackson confirmed that the PAC would be used for all age‑appropriate activities and would also expect parents and grandparents to be present in the PAC. Ms Jackson also confirmed that the facility was one that would have been wanted to be multifunctional.[29]
[29] ts 802.
Mrs Lynne Thomson was the principal of St Mary's from April 1997 to 12 December 2018.[30]
[30] ts 1008.
Following the selection of the project architect, a number of companies were invited to tender for the building of the PAC. Ultimately the board awarded the contract for the building of the PAC to GEO.A.Esslemont & Son.[31]
[31] Exhibit D 10, Meeting held 25 August 1998 (Geo.A.Esslemont & Son).
The City of Stirling issued the building licence for the PAC on 30 September 1998.[32]
[32] Exhibit D 59.
During construction the school's building and grounds committee met with the builders for updates on how the building was going. Mrs Thomson attended some of those meetings.[33]
[33] ts 1022.
Mrs Thomson confirmed that she was at the meeting of the building and grounds committee held on 24 January 2000.[34] At that meeting it was noted that the new facility was officially handed over to the school on 3 December 1999.
[34] Exhibit D 23.
Mrs Thomson confirmed that the school assumed control and occupation of the PAC once it was officially handed over on 3 December 1999.[35]
[35] ts 1046.
Mrs Thomson confirmed that the committee would have considered whether or not they were satisfied with the work and completion on the part of the builder before they accepted a handover of the building. Mrs Thomson said:[36]
Look, that would have been done on the advice of Peter [Mead] and/one of the architects in - involved, or I would think Doug Harvey who was the Ferguson architect. So we would have been taking that expertise as what should be followed.
[36] ts 1045.

Structure and lighting of the PAC

The layout of the PAC is set out in the Aide Memoire formerly MFI A.
The Aide Memoire was not formally numbered as an exhibit. As it was treated as evidence, I will mark it as Exhibit 1.
The PAC consists of a stage, backstage areas, seating for 515 people, a control room at the rear of the auditorium, a lower foyer and upper foyer.
There are steps and changes in level throughout the PAC. The stairs schedule to the level 1 floor plan identifies nine separate sets of stairs.[37] The four aisles leading to audience seats are not identified in the stairs schedule. The upper and lower foyers are connected by stairs. Each foyer has doors to the theatre itself. The doors from the lower foyer lead to the area between the stage and the seating and the doors from the upper foyer lead to the rear of the auditorium.
[37] Exhibit 1, Aide Memoire (formerly MFI A).
The seating consists of 13 rows, 11 of which are tiered. The first two rows are removable so that the area in front of the stage can be converted into an orchestra pit.
The rows are labelled from A at the front through to N at the back.
The seats are accessible via four aisles, one on each side of the auditorium and two in the middle, that have been described as the right and left centre aisles. Each of the aisles has a landing at each row.
Dr Chew visited the PAC on 26 April 2017 and took measurements of one of the middle aisles in the PAC and took some photographs.
Photographs 1 and 2 from his report,[38] of the right centre aisle photographed from the floor of the PAC looking up and from the top level looking down respectively are shown below. A close‑up photograph of the right centre aisle is Exhibit D85.
[38] Exhibit P 2.1, Dr Chew's report dated 29 August 2017.

Photograph 1
Photograph 2

Dr Chew observed the following:[39]
There are two rows of seats on the floor adjacent to the stage, i.e. Rows A and B.
Each of Rows C to J is located on a separate level, with there being one intermediate step between each row and the row below it, from Row J down.
Each of Rows N to K is also located on a separate level, with there being two intermediate steps between each row and the row below it, from Row N down.
The floor of the seating area is carpeted. There is an anti‑skid strip fitted onto the nosing edge of each step on the right aisle.
[39] Exhibit P 2.1, Dr Chew's report dated 29 August 2017, pages 4 and 6.
He noted there was a low barrier between Row E and Row F.
The horizontal plane of a step or landing is called a going and the vertical height is the riser.
Dr Chew prepared a table of the measurements of the riser dimensions of each step on the right centre aisle.[40] He did not set out the going dimension of the steps and landings of the right centre aisle in his report.
[40] Exhibit P 2.1, Dr Chew's report dated 29 August 2017, page 5.
There is no evidence of any other measurements of other steps or changes in level throughout the PAC.
Mr Maney, Mr Jensen, Mr Krahner, Dr Chew and Dr Culvenor gave evidence about the lighting of the PAC.
Dr Chew on his visit on 26 April 2017, from discussion with Mrs Carusi, understood that the lights in the PAC were switched off with the exception of stage lights. He photographed the PAC with the lights in the PAC with the exception of stage lights switched off.[41] He observed a person who was walking down the right aisle from Row F to Row B would have localised illumination from two small electric lights mounted on the end frame of the aisle seat of Row E and Row C on his/her right.
[41] ts 274.
Dr Chew took photographs with a digital camera in 'auto setting'. The camera setting was not intended to reflect what the eyes would see in the lights off condition. He said the house lights were turned off. He was asked:[42]
And you were able to see where you were going?---Yes.
[42] ts 323.
Dr Chew did not take any measurements of the illumination in the PAC.[43]
[43] Exhibit P 2.1, pages 7 and 9.
Mr Lars Jensen is the theatre operations manager at the PAC and has been in that role since 2007.[44] Mr Jensen has worked in theatres for almost 30 years in London and Australia.[45] His duties included using his expertise with handling technical equipment, audio, lighting, visual rigging etc.[46]
[44] ts 1177.
[45] ts 1177.
[46] Exhibit D 83, page 1.
He testified that the PAC lighting at the time of Mrs Carusi's fall was incandescent lighting. The lighting has now changed to LED lighting.[47] Mr Jensen prepared two lighting plots: a pre‑2021 lighting plot[48] and a 2022 lighting plot.[49]
[47] ts 1200.
[48] Exhibit D 91.
[49] Exhibit D 92.
Mr Jensen was satisfied that the pre‑2021 lighting plot showed the fixture positions as they were during the West Coast Dance Festival. He was satisfied that the lighting plot was an accurate representation of the lighting at the time that Mrs Carusi had her accident.[50]
[50] ts 1193, ts 1199.
Mr Jensen explained the meaning of the boxes on the lighting plot and the difference in colouring. He spoke of the nine quadrants of the stage, downstage, mid‑stage and upstage.[51] He was asked about his observation of the two respective sets of lights from the first lighting plot to the second lighting plot. Mr Jensen answered:[52]
So the reason that there are a lot more lights on the second lighting plot, on 329, is because the output of LED light is lower.
[51] ts 1195 - ts 1196.
[52] ts 1202.
Mr Jensen was then asked:[53]
Right. Well, thinking just at the time when there were the incandescent lights, and putting aside entirely any comparison with the LED lights, if I'm in the theatre and all those incandescent lights that you identified in the first lighting plot are on, can I be in one part of the theatre and find it brighter and another part of the theatre and find it dimmer?---Okay. Yes. Up to - towards the rear of the auditorium it will be darker, and towards the front of the auditorium, or what we call the floor, it would be brighter.
[53] ts 1203.
He was then asked whether he had ever walked down the central aisles with the same lights on that were on at the time of Mrs Carusi's fall and he answered 'yes'. He was asked:[54]
And what have you been able to see? What's the visibility been like?---Very good.
[54] ts 1203.
From his observations, he was asked:[55]
When you would traverse the steps in the centre aisles when the lights were as they were pre the change in 2021 and the change in 2022, pre both of those changes, …
From your observation as you went up or down the stairs what could you see?---Rather clearly where I'm putting my feet so rather clearly I could see the steps.
All right, and did that vary for you from top to bottom, bottom to top?---Yes.
And how did it vary?---Well, it's brighter closer to the floor than it is at the back.
[55] ts 1203 - ts 1204.
In cross-examination by senior counsel for Mrs Carusi, Mr Jensen was asked:
So what you say is that if the house lights are on, you can clearly see where you're putting your feet on the steps?---That's correct.
Does that change when the house lights aren't on?---No. You can still clearly see your feet.
By reference to what lighting?---The stair lighting. That's what it's there for.
So by reference to the stair lighting you can see what you're putting your feet?---Yes, you can.
And you say that's what it's there for?---Yes.
That's what it's designed to do?---That's correct.
Can I suggest to you that when you say that you can clearly see the step, what you're really referring to is those shiny strips on the edge of the step which helps you place your foot on the step?---I would say that's reasonable.
Because without the - those strips, the colour of the carpet just blends in from one level to the other?---I would say so too, yes.
In re-examination by counsel for St Mary's:[56]
So thinking about the bottom steps, if we can call them that, that lead down to the orchestra level in the two central aisles, and thinking about pre‑modification and thinking about the WCDF lighting configuration as per the incandescent light plot that you've provided, can you tell us what it is - what - what you could see in that location in those circumstances?---You can clearly see the floor and the steps and - - -
…
[56] ts 1269.

Credibility of witnesses

I found Mrs Carusi to be an honest witness. However, for reasons that I will give, I find her evidence was not reliable or accurate in some respects particularly as to the events leading to her fall, her medical and vocational history.
I found the lay witnesses who gave evidence, that is, Ms Audrey Jackson, Mrs Lynne Thomson, Mr Lars Jensen, Mr Scott Maney, Mr James Krahner and Ms Trina Woodhouse, to be truthful, accurate and reliable in their recollection of events.

Events of 3 October 2015

On the morning of 3 October 2015 Mrs Carusi, Mr Jensen and Mr Maney from St Mary's and Ms Woodhouse from WCDF were in attendance at the PAC.
Mr Scott Maney is the PAC assistant at St Mary's. Mr Maney has been working in this position full‑time since 2013. His office is in the PAC and most of the tasks he was required to do were operated from there. His office was at the top of the auditorium and he would use the steps in the aisles every day.[57]
[57] ts 1412 - ts 1413, ts 1423.
During school holidays Mr Maney would record the dances or performances for WCDF.[58] The WCDF dance competition would typically run up to 10 days. There would be three sessions during a day, the morning, afternoon and evening, starting at 8.00 am and finishing at 9.00 pm or 10.00 pm.
[58] ts 1413.
In relation to the lighting during the competition, he said the stage lights were on during performances, so just the basic lighting set. He was not a lighting technician but the only change to which lights were on and which lights were off during a session was the cyclorama, where it may change from pink to purple depending on the style of the dance or blue.[59]
[59] ts 1414.
On the morning of Mrs Carusi's fall, Mr Maney was in the control box which is at the top left of the auditorium, behind the seating. He knew Mrs Carusi had suffered an injury in the PAC. He was asked:[60]
And how did you come to know that Mrs Carusi had suffered an injury?---I was asked by the adjudicator to stop the music.
And how - how was that request made by the adjudicator?---Well, the adjudicator had a microphone that she was - would use to adjudicate at the end of each section. And she would - she basically picked that up and asked me to stop the music through that.
And what did you then do?---Stopped the music.
[60] ts 1414 - ts 1415.
Mr Maney could not see what was going on in the auditorium. He waited a little while and after probably a minute, two minutes perhaps, he was then asked to turn on the auditorium lighting.[61]
[61] ts 1415.
Mr Maney agreed during cross‑examination by counsel for WCDF that through the whole period he did not know what had happened.[62]
[62] ts 1417.
He agreed that he had no idea what length of time elapsed from the moment when Mrs Carusi suffered her injury to the moment when someone asked him to stop the music.[63]
[63] ts 1418.
He explained his role in this way:[64]
So what happens during that process?---So basically at the end of each section you might have four or five dancers. The section would finish, the adjudicator would complete her forms that she has that she was - would hand back to the dancers and then she would tell the participants who had basically placed in that particular section and that's where she would use her microphone and at the end of that adjudication we would then just go onto the next section.
[64] ts 1418 - ts 1419.
He said:[65]
So each performance or each dancer who is competing would supply a CD of music and my role was to play each song for the particular dancer that was on stage. It just - in a predefined order and I would just play the particular music for that dancer. Once that dancer finishes I would wait for a bell to be rung by the adjudicator and I would then start the next CD and then the next dancer would - would perform.
[65] ts 1419.
Mr Maney agreed at the conclusion of the dance in that section there would be no music because the performances were finished, the adjudicator would speak in relation to the performance that just occurred, and the adjudicator would announce the winners of the section.
In relation to the stage lighting, Mr Maney said that the cyclorama lights on the stage changed colour, and the rest of the lights stayed the same. He explained that the cyclorama is a fixed colour and does not change during a performance. He said that the brightness on the stage does not change during a performance, it stays the same.[66]
[66] ts 1421.
Mr Jensen was at the auditorium on the day of Mrs Carusi's fall. He designed the lighting for that day.
He said the lighting for competitions:[67]
Yes, we didn't - we didn't change the - we didn't change the light setting for the competitions at all, it was always the same lighting, the only thing that changed would be the colour on the cyclorama at the back.
[67] ts 1221.
He explained what a cyclorama does in this way:[68]
It's a big white surface that is the very, very back wall of the stage. It allows you to shine coloured light onto it and it will reflect that light forward.
[68] ts 1237.
As for the stage lighting he said:[69]
But in any event, going back to the situation here, all the lights were shining in the direction of the stage, none were shining in the direction of the audience or their eyes?---That's correct, sir.
Yes. And what you were trying to achieve is to reflect light off the stage and the back of the stage and off the participants so that the audience can see them?---That's correct.
[69] ts 1239.
He said:[70]
So, the lighting was one state and the only thing that changed was the colour of the site at the back, it wasn't my job to change that colour, it was something that we did, depending on whether it was a lyrical part of the competition or it was the ballet part of the competition, might change to pink, might change to blue, whatever, the - all of the overhead lighting and the front lighting and the side lighting remained the same, the only thing that changed would be the colour of the cyclorama. Those changes would be made by the person who was doing the audio, but the initial design of that state would have been mine, yes.
And for that design you had a static lighting situation, whereas other designs you may have lighting that fluctuates?---Yes, that's correct.
[70] ts 1245.
Mr Jensen described the process of collecting the forms from the adjudicator in a similar way to Mr Maney. He agreed that the papers would be collected from the adjudicator by a person during a break between the sections. They were then brought to the box office where the participants would pick them up. His observations of the sequence were:[71]
[71] ts 1247.
You have the final dance in a section?---Yes.
Can you explain from your observations what occurred then please?---The person who was collecting the - the adjudication reports would go and collect them from the table and bring them to the box office.
And in amongst that, there'd also be some presentations of ribbons and trophies?---That's correct.
And where did that take place?---That took place on the floor on what we called stage left.
So within the auditorium?---Yes.
So how long did that normally take? That - that process before the next section commenced?---It would take a couple of minutes. … Sometimes the adjudicator would have to finish commenting on the previous of … of the last person in the competition, I guess.
And so what you observed seems that the person would then come in through that curtain that we discussed earlier from the foyer?---Yes.
Walk across the floor of the auditorium and go up some steps to where the adjudicator was in about the middle of the seating?---Yes.
And you would see them come up for example the centre aisle closest to the door through which the person - ?---Yes.
You would see them take the forms and go back down?---Yes.
The same steps?---Yes.
And back out to the main auditorium?---Yes.
And whilst that was happening there was no performance going on?---No.
In relation to Mrs Carusi's fall, he said:[72]
I was actually leaving the auditorium at the time of the accident and I can say this because I heard the adjudicator ask for the music to be stopped, and then I went down to the bottom of the staircase and Ms Carusi was at the bottom of the stairs.
[72] ts 1246 - ts 1248, ts 1251.
He was asked:[73]
[73] ts 1252 - ts 1253.
So it sounds as if somebody was performing at that time?---That's correct.
And they asked for that to be, what, stopped before it finished?---Yes, that's correct.
And that's when you came in and saw, according to your recollection, Ms Carusi on the floor?---That's correct.
So from what you're saying this didn't happen between sessions between different levels of competition?---That's correct.
So the under 12s versus the under 10s?---That's correct.
You think it happened whilst there was a performance going on?---Yes, there was.
So there would have been no occasion, based on your observation of how things worked for Ms Carusi to have been where she was?---No, she shouldn't have been, no.
So from your point of view you couldn't understand what she'd been doing?---Why she was doing it at the time she was doing it.
So that being the case it would have been inappropriate to have the house lights on at that time?---It would have, definitely.
It was during the performance?---Yes, that's correct.

Ms Woodhouse was on the committee of the WCDF and was backstage at the time of Mrs Carusi's fall in October 2015. She became involved with the WCDF because her daughter was a dancer. She was not paid to be on the committee.
Ms Woodhouse observed Mrs Carusi prior to her fall. Ms Woodhouse saw Mrs Carusi in the morning at the entrance prior to her helping out. She said:[74]
She was standing up and she walked towards inside the auditorium and she could walk normally.
[74] ts 1487.
She continued:[75]
Well, she could walk as well as I could. I remember he [sic] walking - she would have walked up some stairs to where her daughter's change room was prior to helping with the West Coast - she would have taken her daughter's costumes up to the change room, using some stairs, and coming back down them.
[75] ts 1488.
Ms Woodhouse said that Mrs Carusi would only have been walking when there was nobody on stage:[76]
She wouldn't have been walking in the auditorium when somebody was on stage.
And why do you say that?---Because it was constantly called out on the microphone, especially by me, that people are not to move in the audience while somebody is on stage.
[76] ts 1490.
Mrs Carusi attended the PAC at about 8.30 am on the morning of 3 October 2015. Mrs Carusi's daughter was a participant in the dance competition that day.
Mrs Carusi said she was wearing black pants with an elastic waist band, a top and grey Skechers shoes. Skechers shoes have a flat rubber sole.
They were the same ones as she was wearing in court on 28 February 2022 except for the colour. The shoes were described:[77]
It's a black shoe with a rubber sole and what looks to be elasticated material coming halfway up the front of the foot and closed around the heel.
[77] ts 223 - ts 225.
In relation to her right ankle, Mrs Carusi was reminded of a consultation with Dr Ang and a report to her general practitioner dated 11 December 2012.[78]
[78] Exhibit D 97.
Dr Ang said he had seen Mrs Carusi as an emergency and that her right ankle had puffed up and become severely swollen together with MTP joints, being the joints in her hands. Dr Ang commenced her on steroids with good results but on weaning from steroids the symptoms returned. Mrs Carsusi said she did not recall it.[79]
[79] ts 218 - ts 219.
Mrs Carusi denied ever having anything such as a heel raise inside of her shoe.[80] She denied telling Ms Sophie Cousins, a physiotherapist, on 25 November 2015 that she always had a wedge in her shoe as she was unable to get her ankle to neutral prior to surgery.[81]
[80] ts 219.
[81] Exhibit D 134.
Mrs Carusi denied telling Dr Meyerkort on 20 January 2016 that 'she normally has 30 degrees of fixed plantar flexion which is the current position that she is in and she normally uses a heel raise because of the rheumatoid arthritis'.[82]
[82] ts 221; Exhibit D 135.
Mrs Carusi agreed that when she was going out somewhere nice, she often wore shoes with wedged heels. However, she maintained that she was not wearing wedged heels on 3 October 2015.[83]
[83] ts 222.
Mrs Carusi did not dispute her measured height of 155 cm.
According to the evidence her weight was 111 kg.[84]
[84] ts 201; Defendant's bundle, Exhibit D 118.
Mrs Carusi had been to the PAC a number of times before as a parent of her daughter who was a competitor in dance competitions. Mrs Carusi was also a member of the audience.[85] In examination‑in‑chief, Mrs Carusi said she had attended the PAC five times at most.[86] However, in cross‑examination, Mrs Carusi said she had been to the PAC potentially 8 to 10 times before October 2015.[87] Later in evidence, she agreed that she had been there at least on 10 prior occasions.[88]
[85] ts 91.
[86] ts 91.
[87] ts 145.
[88] ts 194 - ts 195.
On the day of the fall Mrs Carusi was in the changeroom with her daughter.
Someone came into the changeroom and asked if anyone was available to volunteer. Another mother, Kerry Walker and she 'put up our hand'[89] and were 'happy to help'.[90]
[89] ts 1434.
[90] ts 1432.
Mrs Carusi said:[91]
Then the same person that came in to ask if there was anyone available to volunteer asked myself and another parent if we could work together to do the job of runner they call it. That's essentially to collect reports, return them to the front desk for collection by students and teachers and distribute trophies at the end of each section.
[91] ts 1432.
The word 'runner' was a description used by parents in discussion with Mrs Carusi. No running was required.[92]
[92] ts 1440.
Mrs Carusi said that by mutual agreement 'Kerry and I organised the job between ourselves'.[93]
[93] ts 101.
Mrs Carusi said for the first two sections she presented trophies and Kerry was the runner, so collecting the reports and returning them to the foyer.[94]
[94] ts 105.
After the first two sections their roles changed so that each mother had an opportunity to watch the children that were performing.
Mrs Carusi had not volunteered at a dance competition before but knew what to do because her daughter had been dancing for years before the competition in October.[95] Mrs Carusi had been to many West Coast Dance Festivals. Mrs Carusi watched people on many occasions volunteer to carry out simple, straightforward tasks of runner and hand out trophies.[96]
[95] ts 101.
[96] ts 1440, ts 1441.
After the third section of the dance competition was completed, Mrs Carusi went to collect the reports or score sheets from the adjudicator.[97] Mrs Carusi described her fall in this way:[98]
So I was sitting in row A. The section had finished. I made my way up the stairs to the row where the adjudicator sat. I collected the reports from her and made my way down the steps with the intention to go out those doors and give them to the ticket booth. On the first time going down the steps I fell.
[97] ts 133.
[98] ts 106.
Mrs Carusi continued:[99]
So I was walking down the steps. The steps were a step and intermediate step, a step and intermediate step, a step and intermediate step and then this unexpected difference and drop. I put my foot down - it was my right foot - down with the intention to even put that on the next step. The step wasn't there. I wasn't expecting for there not to be a step there and I - my ankle rolled.
[99] ts 106.
As can be seen from that passage in the evidence Mrs Carusi made it clear in her evidence‑in‑chief that she was walking down the steps, step and then intermediate step, step and intermediate step.
In cross-examination by counsel for St Mary's, Mrs Carusi was asked in further detail about the circumstances before she fell:[100]
[100] ts 193, ts 194.
And what is the time period between the sections, one girl going off and another girl going on?---It varies. It depends whether the child starts on their routine on stage or off stage. It depends how long the adjudicator takes to write notes or for her scribe to write notes.
Well, typically is there a long delay, like five minutes or a ‑ ‑ ‑ ?---No.
‑ ‑ ‑ short delay like 30 seconds or something in between?---No, it would be maximum 30 seconds.
Okay. So the section stops. You leave your seat in row A?---Yes.
You go up the stairs to row F?---Yes.
You collect the reports?---Yes.
And you head back down?---Yes.
And how long does it take you to get from row A to row F?---10 seconds, maybe 15 seconds.
And how long does it take you to collect the reports?---If they're ready immediately. They're handed over immediately.
And how long does it take you to get down to the last step?---The same time it takes to go up, 15 seconds maybe.
So the step that you fell on ‑ ‑ ‑ ?---Yes.
‑ ‑ ‑ was a step you'd gone up no more than a minute before you fell on it?---Correct.
So you must have known, mustn't you, that there was no intermediate step associated with that last step because you'd just walked up it?---The - when - the first time going up I had no expectation. I wasn't paying attention to whether it was one step or four steps.
…
The first time going up a set of stairs I wasn't acknowledging, 'Oh, I'm going up three stairs or five stairs or two stairs' or - it was the very first step and the very first time I went up that step. So I didn't realise I - I was going to have to pay attention to it for the purpose of coming down the step. It just is an automatic thing you do. You see stairs. You walk up them without really paying too much attention to how many there are, what heights they are.
…
And if you couldn't see the step, you wouldn't have gone up it, would you?---I'm not sure what you're asking.
If you couldn't see the step you wouldn't have tried to get up the step, would you?---Of course.
Now, each of the rows of seats in the aisle have a landing area, don't they, so that people can [get] into their row?---Yes.
And then there are steps between each landing?---That's been brought to my attention now. It wasn't something that I ever noticed prior to the accident.
Mrs Carusi did not give evidence that she was distracted. In cross‑examination she did not agree that anyone was dancing on the stage.[101] She agreed the stage was just blank and there was nobody there.[102] She was asked whether she did not pay attention when she walked up the step and she replied:[103]
Not in the sense that I was distracted by something else. In the sense that I didn't take mental note of how many steps there were. It wasn't something I thought I was going to need to know to have to refer back to it at any time.
[101] ts 193.
[102] ts 193.
[103] ts 194.
It was suggested to Mrs Carusi on a number of occasions that she was moving quickly or under pressure and that she was in a rush. Mrs Carusi denied those propositions.[104]
[104] ts 226 - ts 227.
Mrs Carusi did not give evidence that she was not physically able to descend steps.
Mrs Carusi agreed that because she was a bigger person she had to take particular care, but said that she had lived in homes with stairs and was not unfamiliar with them. Before the fall she was mindful to take care going down steps normally. She was careful anyway and always aware and alert to what she was doing.[105]
[105] ts 227.
Mrs Carusi was shown a Facebook post that she sent to a friend on 7 October 2015.[106]
[106] Exhibit D 84; ts 196.
Now, do you agree that's a Facebook exchange between yourself and Joanne Dunn(?) on 7 October 2015?---Yes.
So a mere four days after your accident?---Yes.
And you see that you've said to Mrs Dunn:
'Jo, I tripped down one step at St Mary's dance comp. It was just a freak, silly fall, landed very awkwardly, couldn't be avoided or helped'.
?---Yes.
Now, you said that to Ms Dunn because that was true, didn't you?---I said it because I don't - I'm not comfortable with people feeling worried about me. So it was a comment that I made where I underplayed or under - reduced the severity of not - of her knowing how bad the situation was.
But the use of the word 'tripped' reflects the truth, doesn't it?---Yes, tripped. Yes, I tripped.
Mrs Carusi was shown a report from Dr Bairstow to her lawyers on 11 October 2018:[107]
Can you see the third full paragraph and five lines down is a sentence that starts:
'She said that she missed the last step and fell heavily onto her right foot'.
?---Yes.
That's what you told Mr Bairstow about how the accident occurred, isn't it?---No. I said to him that I was walking down the stairs, that the last step is where I fell because it was extremely high.
So he's just failed to write down what you told him?---There's been many reports and many errors, yes.
[107] Exhibit P 7.1, page 4; ts 197.
Mrs Carusi was then shown a report from Dr Tan. Mrs Carusi was asked:[108]
[108] ts 198 - ts 199.
Second paragraph, you'll see Dr Tan writes:
'She recalled doing exactly that and whilst coming down a flight of a few steps in the auditorium, she had inadvertently missed the last step, falling forward and rolling onto her right ankle.'
Now, Dr Tan's recorded that correctly, hasn't he?---Again, a lot of information has just been brought forward from previous reports. Some of those facts are incorrect, so I would never have used the term, 'Missed the step'.
Are you sure about that, Mrs Carusi? Because you've used it in the last two documents we've looked at. You've used it when speaking to Mr Bairstow and Dr Tan?---It would not be possible for me to miss an entire step. The intermediate step prior to the step where I fell, the distance would be too far for me to miss that step.
So your evidence is that Dr Tan hasn't accurately recorded what you told him?---I - no, he hasn't. I believe information was taken from a previous report and simply reused.
When you think about the expression, 'Missing a step,' doesn't that mean putting part of your foot over the edge of the step? Is that what that means to you?---Missing a step to me means if there are three steps in a staircase and you are on the third step, then you would miss the second step and stand on the first step. That would be missing a step.
So you're thinking that the expression, 'Missed a step' means entirely stepping over a full step?---Correct.
And not misplacing your foot on the step?---No.
That is what happened, isn't it, Mrs Carusi? You simply didn't put the whole of your foot onto that last step?---No, I had both feet on the last step.
You put both feet on the last step?---Correct, yes. Stepped forward with my left, stood with my right on that step, and then used my right step to lead to go down the bottom step onto the floor.
All right. So you say that you didn't simply trip over the edge of that step and fall on the floor?---No, I didn't trip on anything or over it.
And you couldn't explain why you've used the word 'trip' when describing a fall four days after the fall?---It's just a term used, I guess.
Now, in all the times that you've described the accident to various medical professionals ‑ ‑ ‑?---Yes.
‑ ‑ ‑ you've never told anyone that you couldn't see where you were putting your feet, did you?---I was never asked if I could see. They asked for the - the mechanical explanation of how I fell.
You've never mentioned to any doctors that you couldn't see, have you?---No.
And the question of the adequacy of lighting came from Dr Chew, didn't it, not from you?---He explained - when we were there, he asked the – I'm not sure of his title, I'm assuming studio manager to turn the lighting to how it was on the day that I fell. That was the first instance of lighting being talked about.
Mrs Carusi was shown the unsigned statement identified in Dr Chew's first report as Ms Carusi's statement.[109]
[109] Exhibit 2.7.
Mrs Carusi was taken to a number of paragraphs in the statement. Mrs Carusi denied drawing up the document or even ever having seen the statement before.[110]
[110] ts 191.
She was asked:
Can I suggest to you, Mrs Carusi, that if you were taking care at the time that this happened, you would have seen the floor in front of you and stepped onto the floor without any difficulty?
Mrs Carusi answered:[111]
--- Well, the floor is - the - the unexpected height difference is what contributed or caused the fall. So even though you can see the floor, depth perception in dim lighting is not always 100% accurate.
Well, you could see the step couldn't you?---Yes.
So you've got the landing area that you are standing on. You said before you were standing on that with both feet?---Yes.
You've had to walk across that landing area?---Yes.
You're at the edge of the step?---Yes.
You can see the floor in front of you?---Yes.
[111] ts 227 - ts 228.
Counsel for WCDF asked Mrs Carusi about the circumstances immediately before she fell:[112]
[112] ts 262 - ts 263.
Mrs Carusi, is this all you remember about the events immediately before you were injured? You were walking down steps of an aisle?---Yes
And you fell?---Yes
That's all you actually remember?---Yes. I don't - I'm not sure if what else I would have thought or remembered. I remember walking down the stairs. I remember falling.
And that's it, really?---I remember rolling onto my back. I remember holding my leg up. I remember closing my eyes and just hearing blur and noises.
That's all you have actual recollection of?---Yes.
Going down the steps and falling?---Yes.
All right. You were in court when your counsel did his opening address, weren't you?---Yes.
And he used the term 'intermediate step'?---Yes.
A lot. Do you remember that?---Yes.
In your evidence you also talked about an intermediate step?---Yes.
An intermediate step is an idea that you have only thought about after the incident?---Correct, yes.
And also the question of the height difference?---Yes.
It's something you only thought about after the incident, isn't it?---Correct, yes.
When Mrs Carusi was recalled in the proceedings on 1 November 2022 she was asked further questions by counsel for WCDF about the lighting:[113]
The lighting wasn't fantastic so that contributed, I imagine, but, yes, the step was just - to me looked like another step like every other step that I've used steps before.
But the lighting was dim?---It was.
But it wasn't dark?---No. Correct.
And there was enough light for you to see. You're nodding your head?‑‑‑Yes.
It's being recorded?---Yes. Sorry.
In fact, that's why you were able to see what other people had done because there was enough light?---Yes.
[113] ts 1443.
For the reasons outlined below, I do not accept as accurate or reliable Mrs Carusi's recollection of her descent down the aisle before her fall as she told the court in examination‑in‑chief and when cross‑examined by counsel for St Mary's. In cross‑examination by counsel for WCDF, Mrs Carusi finally conceded she had no memory of how she fell.
In giving her evidence I find Mrs Carusi's reconstructed the events leading to the fall rather than having a memory of how she fell.
I understood Mrs Carusi to be describing a regular gait as she descended the aisle.[114]
[114] See [123] and [124] of these reasons.
However, I do not accept that was the way Mrs Carusi descended the aisle before her fall for the following reasons.
First, her description of her descent is inconsistent with the structure of the aisle. There was no regular stepping from step and then intermediate step, a step and intermediate step as Mrs Carusi described.
The aisle required the user to walk across a landing at each row.
According to Dr Chew, depending on the width of the user's step a user of the aisle had to walk at least two steps and perhaps three steps across the landing before stepping down again.
Accordingly, Mrs Carusi's movement across each landing before the ground floor level must have been at least two steps across the landing level before she stepped down from the landing to the next level.
I find there was no pattern in her gait in descending the aisle from Row F to Row B.
As Dr Culvenor said:[115]
… the journey down the aisle in question is not one where there is a repeating gait pattern.
[115] ts 555.
Second, Mrs Carusi said 'she wasn't expecting for there not to be a step there'. I do not accept that evidence.
Mrs Carusi ascended the same aisle from Row A to Row F a matter of seconds before descending the same aisle. Furthermore, Mrs Carusi had been to the PAC on at least 10 prior occasions. In those circumstances, the steps and landings were not unfamiliar to her.
In these circumstances, I find that in descending from Row C to Row B there was not an unexpected change to a pattern.
Third, I find Mrs Carusi's evidence that she was not able to, in her words, judge depth perception in dim lighting was also a reconstruction of the events leading to the fall.
Dr Chew was the first person who provided information to Mrs Carusi about the lighting in the PAC when they met on 27 April 2017.
There is no evidence that the lighting on that day was identical to the lighting on the day of her fall. Mr Jensen was not present on that day. The evidence only establishes that the lights in the PAC, with the exception of the stage lights, were switched off at the time of Dr Chew's visit.
As set out in [132] Mrs Carusi made clear in evidence that was the first instance of lighting being talked about.

I accept Mrs Carusi's evidence that there was enough light for her to see the changes in level, the steps and the landings as she ascended and descended the aisle.
I find Mrs Carusi did see the changes in level, the steps and the landings as she ascended and descended the aisle.
I am supported in my finding by Mr Jensen's observations of the lighting in the PAC at the time of Mrs Carusi's fall.[116] Mr Jensen made clear that the visibility was very good. I accept his evidence that the lighting is brighter closer to the floor in the PAC.
[116] [73] - [76] above.
I am also supported in my finding by Mrs Carusi's documented description of the circumstances of her fall in a Facebook message to her friend on 7 October 2015, four days after the fall. Mrs Carusi was clear in that message that 'it was just a freak, silly fall', she 'tripped' and that it 'couldn't be avoided or helped'. There was no mention of the unexpected change in height, gait pattern or lighting in the PAC.
I will return to my findings as to Mrs Carusi's footwear and alleged equinus deformity when I consider the medical evidence in this case.
I accept Mrs Carusi's evidence that she 'put her hand up' to help at the competition. I find Mrs Carusi knew what was expected and what she had to do because Mrs Carusi had been to the WCDF dance competitions many times and observed the volunteers many times.
Mrs Carusi and another mother, Ms Walker, volunteered to collect reports, return them to the front desk for collection and distribute trophies. Mrs Carusi and Mrs Walker agreed between themselves the job.
Initially, Mrs Walker collected the reports and returned them to the foyer and Mrs Carusi presented trophies. The role then swapped, and it was Mrs Carusi's turn to collect the reports and return them to the foyer.
At the time of Mrs Carusi's fall I find:
1.Mrs Carusi ascended the aisle from floor level at Row A to Row F.
2.Mrs Carusi collected the reports from the adjudicator and was descending the aisle from Row F.
3.On balance, I accept Mrs Carusi's evidence that the section had finished and there was nobody on the stage. I make that finding for the following reasons:
(a)first, there would be no reason for her to ascend the aisle unless she was collecting reports;
(b)second, Mr Maney and Mr Jensen's evidence that the adjudicator called for the music to be stopped does not necessarily mean that Mrs Carusi was descending the aisle during a performance. Neither Mr Maney nor Mr Jensen observed Mrs Carusi in the aisle. The evidence does not establish with any certainty the time lapse between one dancer going off the stage and another dancer going on stage;
(c)third, Ms Woodhouse by microphone reminded audience members not to walk in the auditorium when someone was on the stage, a request with which Mrs Carusi was likely to have complied.
4.Mrs Carusi was not rushing. I accept her evidence in that regard.
5.Mrs Carusi was not descending the aisle in a regular or patterned way. The aisle was not a set of internal stairs. Neither was it a flight of stairs or a stairway.
6.The step down from the landing at Row C to Row B on ground floor level was not unexpected.
7.Mrs Carusi could see and did see the changes in level, steps and landings as she ascended and descended the aisle.

Duty of care

It is not in dispute in this trial that St Mary's, as the occupier of the PAC, owed Mrs Carusi a duty of care.
The nature and content of that duty are set out in the OLA.
Section 4 of the OLA provides:
4.Application of s. 5 to 7
(1)Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers -
(a)to that person; or
(b)to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.
(2)Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent.
Section 5 of the OLA provides:
5.Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
While s 5 of the OLA describes the duty of care for an occupier, the Civil Liability Act 2002 (WA) (CLA) contains matters that are relevant to the breach of that duty. The criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA.[117]
[117] Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [85].
The provisions of s 5B of the CLA apply to whether the duty has been breached.[118]
[118] See Garnett v Qantas Airways Ltd [2021] WASCA 110 [124] - [136].
Section 5B of the CLA provides:
5B.General principles
(1)A person is not liable for harm caused by that person's fault 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.
In considering an alleged breach of duty by an occupier a number of matters must be considered: The Department of Housing and Works v Smith [No 2] (Buss JA):[119]
… First, the determination of what, if anything, a reasonable person in the occupier's or lessor's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
[119] Department of Housing and Works v Smith [No 2] [87].

What was the risk of harm?

The Court of Appeal in Nikolich v Webb said:[120]
[120] Nikolich v Webb [2020] WASCA 169 [69].
…
1.The formulation of risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
2.The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.
3.What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning; for example, because:
(a)it obscures the true source of potential injury;
(b)it too narrowly focusses on the particular hazard which caused the injury; or
(c)it fails to capture part of the plaintiff's case.
As Garling J said in Garzo v Liverpool/Campbelltown Christian School Ltd:[121]
As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the 'risk of harm' in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a Court in a position to determine the defendant's knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant's response, or lack of response, to that risk, thereby avoiding the type of error discussed by Gummow J in RTA v Dederer (2007) 234 CLR 330 at [59]-[61].
[121] Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292 [60].
In summary, Mrs Carusi contends that a fall/trip hazard arose from the height of the first landing from the floor level, identified as step C/B, differences in riser and tier levels between the higher landings and steps and conditions of dim lighting.
In addressing this issue in closing, senior counsel for Mrs Carusi submits:[122]
In the present case, there was a foreseeable risk that a person would misjudge the height of step C/B and lose their balance. It was an anomalous step.
[122] Plaintiff's Outline of Closing Submissions, par 46.
Further, senior counsel contends that the relevant danger in this case was not descending steps generally. It was submitted that it was these steps, and in particular step C/B, and the absence of an intermediate step. That was compounded by the dimmed lighting and the absence of dedicated lighting on that step.[123]
[123] Plaintiff's Outline of Closing Submissions, par 52.
I accept in any set of given factual circumstances a number of risks of harm that can be identified.
However, in my view, the formulation of the risk of harm by focussing on what is described as the height of the 'anomalous step' by senior counsel and the height differences of the higher landings and steps is too narrow.
In my view such a formulation obscures the true source of potential injury.
In my view the correct formulation of the risk of harm in this case has been correctly stated by counsel for WCDF.[124]
[124] Third Party Outline of Submissions, pars 81 and 82.
The risk of harm is the risk of a person misplacing a step or tripping, and falling, when descending the aisle in the PAC and suffering personal injury.
In my view that formulation of the risk of harm identifies the true source of potential injury and the potential causal mechanism of Mrs Carusi's injury.
That risk of harm exists irrespective of heights and/or height differences of the changes in level, steps and landings in the aisle.

Was there a breach of duty?

In deciding whether there has been a breach of duty, one must first ask whether a reasonable person in St Mary's position would have foreseen that its conduct involved a risk of injury to Mrs Carusi or a class of persons including Mrs Carusi. If so, it is for the tribunal of fact to determine what a reasonable person would do by way of response to the risk.[125]
[125] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

Was the risk of harm foreseeable?

The first step is that Mrs Carusi must establish that the risk of harm was foreseeable, that is, a risk of which St Mary's knew or ought to have known.[126]
[126] CLA, s 5B(1)(a).
Senior counsel for Mrs Carusi argued the case on the basis that St Mary's ought to have known of the risk: s 5B(1)(a) of the CLA. It is a question of what a reasonable occupier would have foreseen (bearing in mind that they are upon the premises on a daily basis, are able to see the state of the premises in full light, and know how the premises are used).[127]
[127] Plaintiff's Outline of Closing Submissions, par 44.
St Mary's contends that the risk posed by the step was no more significant than that posed by any steps and staircases. St Mary's contends that steps and staircases are inherently and obviously dangerous, and the mere fact that a person falls on a step or a staircase does not give rise to a prima facie case of negligence.
St Mary's refers to authorities involving steps and tripping and falling.[128]
[128] Gentle v Wright [2021] WADC 63; Wilkinson v Law Courts Ltd [2001] NSWCA 196; Zaya v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/as Energised Alliance [2019] NSWCA 320.

Use of the PAC

It was not in dispute in this trial that the aisle that Mrs Carusi descended and the other centre aisle had not changed from the time of the completion of the PAC in December 1999 until the aisles were modified after the conclusion of the school year in 2018.
Evidence about the usage of the PAC was given by Mrs Carusi, Mrs Thomson, Ms Houwen, Mr Jensen, Mr Maney and Ms Woodhouse.
Mrs Thomson was the principal at St Mary's for 21 years until the end of 2018. She gave evidence that she would have personally gone into the PAC maybe 15 times a term, and sometimes in the holidays.[129] I accept counsel for St Mary's estimate that equates to about 950 occasions when Mrs Thomson went to the PAC.[130]
[129] ts 1009.
[130] Defendant's Outline of Closing Submissions, par 10.
Mrs Thomson usually sat in a seat near where the adjudicator sat at WCDF performances.[131] Mrs Thomson would exit the PAC either by coming down the same aisle that Mrs Carusi used on 3 October 2015 or the aisle by the wall.[132]
[131] ts 1049.
[132] ts 1011, ts 1049, ts 1050.
Mrs Thomson confirmed that people using the PAC range from babies in arms, grandparents in their 70s and rarely people in their early 90s.[133] During that period of 18 years from when the PAC was first used by St Mary's, Mrs Thomson did not recollect seeing anybody stumble or fall in either of the two middle aisles.[134]
[133] ts 1012.
[134] ts 1012, ts 1013.
Ms Michelle Houwen is currently the director of business operations at St Mary's. Ms Houwen said that in 2016 the student population was approximately 1,350 students. There were approximately 260 permanent staff and up to 200 casual employees.[135]
[135] ts 806.
Between 1998 and 2004 Ms Houwen was the accountant at St Mary's. During that period Ms Houwen testified that there was a paper‑based system for reporting accidents or incidents on the campus. Staff were instructed to complete an incident report form if an incident or accident occurred.[136]
[136] ts 804.
Ms Houwen gave evidence that upon her return to St Mary's in 2016 the same system for reporting accidents or incidents was in place. In 2017 an online system for reporting was initiated.[137]
[137] ts 808; CompliSpace incident form.
Ms Houwen was asked what would occur if, for example, someone tripped on bricks raised by tree roots at the school. Ms Houwen set out the stages of reporting the incident, highlighting the issue and actioning a response.[138]
[138] ts 805.
Ms Houwen conducted a search of the paper-based system and the online reporting system in relation to accidents or incidents at the PAC for the years from 1999 to 2017.
The incident report forms were tendered.[139]
[139] Exhibits D 67, D 68, D 69, D 71, D 73, D 74, D 75, D 76.
The workplace safety incident forms show that, other than Mrs Carusi, the only person who reported an incident on one of the centre aisles in the PAC during that search period was Mr Jensen.
In the Complispace injury form the cause of incident in Mr Jensen's fall on 14 November 2018, was 'stairs, darkness'. He said that was not a complete account. He said:[140]
… the main contributor of me falling was me looking at the lights as they were moving across the stage and not looking down on my feet.
[140] ts 1205.
He said he fell on the last landing before the bottom in the left‑hand centre aisle. Immediately before he fell, he was trying to look at some lights tracking across the stage. At the time, six moving lights on the stage were on and moving. The lights were positioned directly above the stage. The only other lights on were the stair lights. He did not think the modifications to the lights in the aisle had taken place by then.[141]
[141] ts 1254.
Ms Houwen said that in the summer of 2018 - 2019 the school re‑did the carpet in the auditorium, and the school took the opportunity to add a step. It was Ms Houwen's ultimate decision to install the step. The step was installed in-house by the maintenance team and Ms Houwen consulted the property manager and occupational health and safety manager. Ms Houwen did not receive any engineering or other professional advice before making the decision.[142]
[142] ts 815.
Ms Houwen was shown photographs and asked whether she knew that the stair treads now have lights on them. Ms Houwen was not sure. She was trying to think if it was a reflection or a light.[143]
[143] ts 820.
In relation to the frequency of use of the PAC, Mr Jensen gave evidence that there are four terms and usually the PAC is used between 10 and 20 times a term.[144]
[144] ts 1180.
The PAC during term was used mainly for musicals and plays and parent information evenings. Mr Jensen imagined that a reasonable average calculation would be that the PAC would be 75% full. During those times Mr Jensen described the age range of audience members as toddler to great‑grandparents.[145]
[145] ts 1180.
Out of term the school hired out the PAC. As to outside hire, he said:[146]
So that's varied a lot. We're talking 15 years. We used to have 60 clients when I first started. We tapered that down over my period of time there, in 2019 I had 10 clients.
[146] ts 1180 - ts 1181.
He explained that the PAC was hired out on a regular basis during term as well.
Mr Jensen said that at the busiest time his calculation would be that the PAC would be hired about 100 times a year. That tapered down over time, to 20 to 30 times a year in 2014.[147]
[147] ts 1181.
In respect of seating capacity, he said:[148]
So for things like an orchestra or a dance recital, as we can call it, it would be 100 per cent. For a dance competition it would be probably a maximum of about 100. But the dance competition would run from like 8.30 in the morning till 10.30, 11 at night. Varying throughout the - - -
It would vary throughout the day but over the course of a day how many patrons would sit in those audience seats?---Yes. They would come in and go out all the time. So probably - it would be about 200 people walking in and out from the auditorium on those occasions.
… the general demographic of the audience?---The same thing. Toddlers to grandparents - great-grandparents.
[148] ts 1181.

Upon his return from work about 6.00 pm he would cook and Mrs Carusi would assist.[414] Mr Carusi completed the family laundry on Saturdays, on average five loads a week, online shopping except for fresh fruit, vegetables and fresh meat which he would purchase each Saturday. Saturday would also be the cleaning day. Sundays he would rest.[415]
[414] ts 484.
[415] ts 487.
Mr Carusi would drive Mrs Carusi to medical appointments, that is, to her rheumatologist Dr Hanrahan once every three to four months; and to her general practitioner once per fortnight.[416]
[416] ts 505.
Mrs Carusi's further updated particulars of damage claim gratuitous care for the period 3 October 2015 to 3 November 2022 by hours per week separated between Monday to Friday, Saturday and Sunday at $35.70 per hour.
The claim for hours from Monday to Friday varies from 4 hours per day from 3 October 2015 to 31 December 2015, 5 hours per day from 1 January 2016 to 31 December 2016, 4 hours per day from 1 January 2017 to 31 December 2017, 4.5 hours per day from 1 January 2018 to 31 December 2018 and 2 hours per day from 1 January 2019 to 3 November 2022.
The claim for each Saturday is from 6 hours per day 3 October 2015 to 3 November 2022.
The claim for each Sunday varies from 5 hours per day from 3 October 2015 to 31 December 2016, 6 hours per day from 1 January 2017 to 31 December 2017, 2 hours per day from 1 January 2018 to 31 December 2018, 6 hours per day from 1 January 2019 to 31 December 2020 and 2 hours per day from 1 January 2021 to 3 November 2022.
The total cost of gratuitous care claimed to 3 November 2022 is $340,523.73.
The claim is based on Ms White's report.[417] Ms White prepared the table in her report from the hours described by Mrs Carusi.[418]
[417] ts 1634.
[418] Exhibit P 12.1, page 13, vol 4.
Counsel for St Mary's in closing submissions submitted in essence that Mrs Carusi's claim for gratuitous services is flawed as a plaintiff cannot recover the cost of services provided to other people. In this case counsel for St Mary's submitted there was a clear delineation between Mr Carusi doing the laundry for the entire family and the large long shop that would not be required in order to provide meals and provide meals to Mrs Carusi.[419] I accept that Mrs Carusi cannot recover the cost of services provided to her children or her husband, even if they were things she did herself previously.[420]
[419] ts 1574.
[420] See generally CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1.
I accept Ms Sharp's opinion:[421]
Taking into consideration Mrs Carusi's injuries and pre-existing health conditions, I agree with Prof Jerzy Sikorski (5.8.2020) assessment that: 'on average she required 1-2 hours help a day, or a full day once a fortnight'.
[421] Exhibit DE 7, page 25.
I do not accept Mrs Carusi's estimate of hours provided to Ms White. First, it includes the work Mr Carusi did for the entire family. Second, Mrs Carusi's estimate is not supported by the evidence of Mr Carusi. Again, his estimate was for the entire family. In my view 9 hours per week is an appropriate award for the household tasks together with transportation assistance.
Mrs Carusi is entitled to damages of 9 hours per week x $35.70 per hour. Mrs Carusi is entitled to past gratuitous services from 31 October 2015. Mrs Carusi was in hospital until 31 October 2015.
I accept the rate of $35.70 per hour is reasonable. Counsel for St Mary's did not contend otherwise.
Therefore, had Mrs Carusi been successful in her claim she would be entitled to $131,411.70 (409 weeks (from 31 October 2015 to 1 September 2023) x 9 hours per week x $35.70) for past gratuitous services.

Interest on past loss

The rate that is claimed is 3%. I accept that rate. Counsel for St Mary's did not contend otherwise.
The calculation for interest for past gratuitous services is $131,411.70 x 3% x 409 weeks = $30,908.03.
The calculation for interest for past economic loss is $157,971.84 x 3% x 6 years = $28,434.93.
The calculation for interest for past superannuation is $11,864.96 x 3% x 6 years = $2,135.69.

Future medical expenses

Mrs Carusi would be entitled to recover from St Mary's her reasonable future medical expenses.[422] In assessing reasonableness, the court will balance the health benefits to the plaintiff against the cost of the treatment proposed.[423]
[422] Sharman v Evans (1997) 138 CLR 563, 573 - 574 (Gibbs & Stephen JJ) (Sharman).
[423] Sharman (573) - (574).
There are two components to this head of damages in the claim. The first is the medical support services recommended for Mrs Carusi by Ms White.[424] In summary, Ms White recommends the following:
[424] Exhibit P 12.1, pages 9 - 12.

Table 3 - Summary of Medical Services Mrs Carusi

Service Amount per annum Total Cost

Occupational therapy 2 sessions (+ travel) $370.20

Physiotherapy 52 sessions $7,020.00

Psychology/Counselling As required $7,477.50

GP 26 sessions $2,964.00

Pain Specialist Quarterly (estimated) $640.00

Dietician As required $956.40

Vocational Rehabilitation As required $10,000.00

Case Management 24 hours per annum $4,385.76

Podiatry 6 consults $675.00

Total $34,488.86

The second component to this claim relies on the report of Dr Dawn Barker. Mrs Carusi claims 26 consultations with a psychologist at a rate of $251 per consultation and continued use of Reboxetine for six months at a cost of $41.30 per month.
The total claim for future medical expenses is $139,513.05.
I turn first to the recommendation of Dr Barker. I accept Dr Barker's opinion that further psychological therapy would likely improve Mrs Carusi's prognosis of her trauma‑related symptoms. In her report Dr Barker recommended that Mrs Carusi has psychotherapy on a one to two weekly basis for at least the next three months and that this is then reduced to a two to four weekly basis for the following three to six months.[425]
[425] Exhibit P 9.2, page 12.
In accordance with Dr Barker's recommendation I would allow 12 sessions, that is, six sessions in the first three months and six sessions on a monthly basis thereafter at the rate of $251 per consultation totalling $3,012.
Dr Barker accepted the prescription for Reboxetine should continue for six months.[426] In those circumstances the claim for $247.80 is reasonable. I allow this amount.
[426] ts 687.
I turn now to the medical support services recommended by Ms White.
The first is occupational therapy two sessions (plus travel) for $370.20. That claim is not supported by the evidence and I make no allowance.
The second is weekly physiotherapy sessions at a cost of $135 per session and totalling $7,020 per annum for five years. That claim is not supported by the evidence. Dr Goucke opined that further hydrotherapy treatment should not be contemplated. He was of the view that exercise is generally good for anybody with persistent pain particularly with CRPS. Formal physiotherapy which is often passive is not usually valuable.[427] I therefore make no allowance for physiotherapy.
[427] ts 528.
The third is 10 sessions of marriage counselling. There is no expert evidence in support of this claim. Ms White has no expertise in this field. I make no allowance.
The fourth is fortnightly general practitioner consultations for the foreseeable future at a cost of $114 per consultation. On the evidence before the court, I am not satisfied on the balance of probabilities that every one of Mrs Carusi's fortnightly general practitioner consultations would be an appointment that she would have needed, but for her injuries. Professor Sikorski estimated she would need to see her general practitioner approximately monthly.[428] Dr Goucke was also of the same opinion. He was of the view that the major reason for her to see a general practitioner would be for monthly medications.[429] He added that Mrs Carusi is on a large number of medications. He agreed that telehealth appointments are suitable.[430] In those circumstances, I am of the view that 12 sessions with a general practitioner once per month is reasonable at a cost of $114 per consultation. A yearly cost of $1,368 is appropriate. Therefore, the calculation is $1,368 ÷ 52 = $26.30 (weekly cost) x 779 (multiplier) = $20,493.69.
[428] Exhibit DE 6, page 19.
[429] ts 532.
[430] ts 85.
The fifth is quarterly sessions with the pain specialist which is estimated by Ms White at $640. Ms White notes that Dr Veltman bulk bills Mrs Carusi and therefore there is no cost associated with this service.[431] Mrs Carusi claims an amount of five years at a cost of $160 per consultation. I would not allow this claim as the attendances were bulk billed with no out‑of‑pocket expenses. Further, Professor Sikorski was of the opinion that a further consultation with a pain specialist is only required if Mrs Carusi decided to proceed with spinal stimulation.[432] There is no evidence that Mrs Carusi wishes to try this option. Therefore, I make no allowance.
[431] Exhibit P 12.1, page 10.
[432] Exhibit DE 6, page 19.
The sixth head is dietician at a cost of $956.40 per annum for five years. A total of $4,161.66 is claimed, which is reasonable and I allow.
The seventh head is vocational rehabilitation as required at a cost of $10,000. Ms White recommends that on the basis of Mr Parry's recommendation for a return-to-work programme. Mrs Carusi has no residual capacity for work. Therefore, I make no allowance.
The eighth head is case management services for one year at a total cost of $4,385.76. I am of the view that a case manager to oversee Mrs Carusi's total health care rehabilitation in the community is not required. Mrs Carusi can manage her medical appointments and treatment regime independently. In this regard I rely on Ms Sharp's opinion.[433]
[433] Exhibit DE 7, page 25.
The ninth is podiatrist consultations. Podiatrist consultations are claimed every six weeks at a cost of $75 per session totalling $675 per annum for the foreseeable future. In my view it is reasonable for Mrs Carusi to have periodic podiatry services but not every six weeks. I would allow quarterly consultations for the foreseeable future. Accordingly, I would allow $300 ÷ 52 = $5.76 (weekly cost) x 779 (multiplier) = $4,494.23.
The tenth head is pain medications at a cost of $98 per month totalling $1,178.04 per annum for the foreseeable future. Given Mrs Carusi's significant number of medications, I cannot assess the basis of the claim. No particulars have been provided. Accordingly, I cannot assess this claim.
In summary, a provisional assessment for future medical costs is:

Component Amount

Psychology $3,012.00

Reboxetine $247.80

General practitioner consultations $20,493.69

Dietician $4,161.66

Podiatry $4,494.23

Total $32,409.38

Future gratuitous services

Mrs Carusi's further updated particulars of damage claim formal support services of cleaning three hours each week and community access/cooking Monday to Friday at five hours per week. In addition, Mrs Carusi claims informal support services from her husband and children for the foreseeable future claiming six hours each Saturday and Sunday at the rate of $35.70 for driving, cooking, cleaning and washing. In my view, Ms Sharp's recommended formal support services of five hours per week is a reasonable assessment having regard to Mrs Carusi's needs.[434] Therefore, had Mrs Carusi been successful in her claim, I would have allowed her five hours at $49.02 per hour being a cost of $245.10 per week. For informal support services Mrs Carusi would be entitled to five hours per week at $35.70 per hour being a cost of $178.50.
[434] Exhibit DE 7, page 26.
In relation to informal support services for the Mrs Carusi provided by her family, in my view five hours per week is an appropriate award for the household tasks together with transportation assistance. I refer to my findings earlier in these reasons.
The combined weekly cost is $423.60. I would allow that amount. Therefore, the calculation is $423.60 x 779 (multiplier) = $329,984.40.

Aids and appliances

I preferred Ms Sharp's assessment of items of equipment required by Mrs Carusi for the reasons I set out below. I will allow all of the items recommended by Ms Sharp.
Ms White made recommendations for services not within Ms White's area of expertise. I therefore disregard her recommendations that relate to Mrs Carusi's psychological/counselling needs.[435]
[435] Exhibit P 12.1, page 9.
Further, in my view the schedule of items of equipment that Ms White considered Mrs Carusi required is extravagant. I am of the view that some of the items recommended by Ms White were not needed, were unreasonable, were not appropriate or all three.
For example, items of equipment recommended for Mrs Carusi include a Thermomix, a food processor and a slow cooker.[436] The cost of those appliances alone with replacement in Ms White's schedule amount to $20,713.30.
[436] Exhibit P 12.1, page 12.
The items of the Thermomix, food processor and slow cooker were not pressed or pursued in the further updated particulars of damage for trial.
Mrs Carusi already owned and used each of those items prior to the accident.
I asked Ms White why there was a recommendation for both a Thermomix and a food processor:[437]
Can I just make an observation? I've got a Thermomix, and a Thermomix does the same thing as a food processor, doesn't it?---Does it? I've never had one.
Well, you've recommended both here and so - - -?---Okay.
- - - on what basis have you done that?---Only from reports from friends who have a Thermomix who say that it saves them an awful lot of time and a lot of effort.
[437] ts 754.
I find Ms White gave insufficient justification for recommending the Thermomix. I would not have allowed all three appliances. In my view the claim for all three items of equipment was extravagant.
In addition, Ms White recommended elbow crutches and an iWalk knee crutch. Again, these items were not pressed by Mrs Carusi in her further updated particulars of damage for trial.
I would not have allowed the items in any event.
Ms White knew that the elbow crutches were tried by Mrs Carusi without success but despite that knowledge included the items in the schedule.
When questioned about the elbow crutches Ms White said:[438]
Now, you recommended elbow crutches and an iWALK knee crutch. And you know, don't you, that Mrs Carusi's already tried elbow crutches in hospital and she wasn't able to use them?---Yes, I think she ‑ ‑ ‑And she was told she wasn't suitable for elbow crutches?---Yes, I put them as a potential. It wasn't a essential item.
[438] ts 759.
And further:[439]
And do you agree with Ms Sharp that she's not likely to be able to use the iWALK knee crutch because she won't be able to simultaneously use elbow crutches?---Yes, I think that's fair enough.
[439] ts 760.
Similarly, the over toilet frame recommended by Ms White was found by Mrs Carusi to be a hindrance when she was at Osborne Park Hospital.[440]
[440] Ms Sharp's report, page 30.
Moreover, I find Ms White's assessment that items of equipment be replaced at the end of the warranty period was unreasonable. The replacement period for items of equipment is not the warranty period.
Ms White said:[441]
So the - the manufacturer's warranty is their guarantee that the - the thing should be good for that amount of time before if - if it becomes faulty, then it's out of warranty. Then, you know - so when I do a replacement schedule, if there is a warranty on a piece I will put the warranty period in there as that's the gold standard of when it - how long it should last, be functional, but I can't say after that time how long it will last.
[441] ts 747.
I do not accept Ms White's evidence that the warranty period is the gold standard for replacement of a product.
Given the extravagance of some of the items recommended, the view that a warranty period is a gold standard of when an item of equipment should be replaced, and Ms White going beyond her area of expertise, I am of the view that Ms White's opinion in relation to the recommended equipment should be given little weight.
In all the circumstances I accept Ms Sharp's assessment of Mrs Carusi's needs including her assessment of the lifespan of items.
Ms White said the Impulse 400 queen bed was recommended on the basis of Mrs Carusi's long‑term needs to improve comfort and mobility.[442]
[442] ts 711.
However, in cross‑examination Ms White said the reason the bed was required was because it had a pressure care mattress which 'keeps some marital intimacy' and 'would benefit her mentally as well as physically'.[443]
[443] ts 756.
Ms White's opinion is not within her field of expertise.
I accept Ms Sharp's opinion that the Impulse 400 queen bed is not appropriate. There is no clinical criteria indicating the need for an electric profiling bed.[444]
[444] Exhibit DE 7, page 30.
I also accept Ms Sharp's view that Mrs Carusi has no need for an electric lift armchair for the reasons set out in Ms Sharp's report.[445]
[445] Exhibit DE 7, page 30.
I accept Ms Sharp's view that the following items of equipment are not appropriate for Mrs Carusi for the reasons set out in Ms Sharp's report.[446] That is, the mezzaluna knife, wheelchair cup holder, shoulder wrap heat pack, over toilet frame, extra care perching stool and leg lifter.
[446] Exhibit DE 7, page 30.
I turn now to the wheelchair. I am persuaded by Ms Sharp's exposition of Mrs Carusi's needs, together with the evidence of Mrs Carusi and Mr Carusi that a properly fitted knee scooter together with a folding bariatric manual wheelchair with Smartdrive attachment is reasonably needed for Mrs Carusi's needs.
I do not accept Ms White's assessment that Mrs Carusi requires an electric wheelchair at a cost of $21,000 to be replaced each year according to the manufacturer's warranty.[447]
[447] Exhibit P 12.2, page 6.
Ms White based her recommendation on a view that for community use, 'long term use of shoulder joints pushing a manual wheelchair through shopping centres etc is likely to exacerbate pain via the existing diagnoses of fibromyalgia and RA'.[448] However, there is no evidence that Mrs Carusi would be travelling long term through shopping centres etc.
[448] Exhibit P 12.2, page 5.
Mr Carusi and Mrs Carusi gave evidence that the family's form of shopping was online except for fresh fruit, vegetables and meat.[449]
[449] ts 486; ts 256.
I accept Ms Sharp's evidence that a power wheelchair works very well when required for people with very high physical needs but that is not the case for Mrs Carusi.[450]
[450] ts 1314.
Ms White recommended a bariatric folding manual wheelchair for in‑home use.[451] In her second report Ms Sharp recommended a Daily Glide bariatric wheelchair with Smartdrive MX attached.[452]
[451] Exhibit P 12.2, page 5.
[452] Exhibit DE 9, page 3.
I have no evidence of the cost of the particular items from Ms Sharp. However, Ms White costed an extra care bariatric wheelchair in her report at $1,249.[453] I would allow that cost to be replaced every seven years. Ms Sharp was of the view that replacement is anticipated to be 5 - 10 years.[454] I would also allow the cost of the Smartdrive attachment. With no evidence as to cost, I cannot calculate a provisional cost for the device. I would allow a new scooter/knee walker every three years. In my view that is reasonable. Mrs Carusi has had her current scooter/knee walker for a number of years.

Summary

[453] Exhibit P 12.1, page 13.

[454] Exhibit DE 7, page 31.

In summary I am of the view that the following items of equipment are reasonable. I have assessed the total cost using the calculations in Mrs Carusi's updated further particulars of claim.

Equipment item Initial Cost Replacement Total Cost

Shower transfer bench $685.00 3 years $3,420.61

Scooter - knee walker $746.43 3 years $3,727.37

Knee walker gel seat cover $70.00 1 year $1,048.65

Long handled sponge $25.00 1 year $374.52

Grabber $45.00 1 year $674.13

Dressing stick $15.00 5 years $44.94

Wheelchair cushion $150.00 1 year $2,247.12

Manual wheelchair bariatric folding - I have used the cost from Ms White's report as no cost set out for a Daily Glide bariatric wheelchair $1,249.00 7 years $2,673.00

Bed cradle $65.00 TBA $65.00

Smartdrive MX TBA TBA

Total cost $14,275.34

Motor vehicle

Mrs Carusi no longer has a West Australian driver's licence as she is now medically unfit to drive. Mrs Carusi claims that regaining the ability to drive will assist her in improving her independence level and her mental health. Initially, Mrs Carusi claimed a vehicle with a rear hydraulic lift and foot pedals accommodating left foot control at a cost of $150,000.[455] Mrs Carusi now claims an amount of $80,000 to include the cost of a suitable van and modifications to make it wheelchair compliant which will need to be replaced every eight years. The total claimed is $152,271.06.
[455] Exhibit P 12.1, page 16.
Mrs Carusi also claims a disability driving assessment with an occupational therapist service in the sum of $1,235.
On the evidence I am not persuaded on the balance of probabilities that Mrs Carusi would ever be able to obtain a driver's licence. I make that determination on the basis of the expert medical evidence particularly Dr Tan. In his view, the combination of all the medication that Mrs Carusi takes will cause severe drowsiness.[456] Dr Tan also gave evidence in relation to Mrs Carusi's pain from her CRPS.[457]
[456] ts 175.
[457] ts 160.
Moreover, I accept Ms Sharp's opinion that due to Mrs Carusi's CRPS, driving in a car aggravates her condition particularly going over speed bumps, any vibration of the vehicle and any touch to her foot. Mrs Carusi can only tolerate being in a vehicle for a short amount of time and does not go on lengthy trips.[458]
[458] Exhibit DE 7, page 22.
As I am not persuaded that Mrs Carusi will ever be able to obtain a motor vehicle driver's licence, her claim for a motor vehicle with modifications is not reasonable. I make no allowance for a motor vehicle.

Home modifications

Mrs Carusi relied on the evidence of Mr Whittle, the building report[459] and the evidence of Ms White in her claim for home modifications. I do not accept that the home modifications proposed by Mrs Carusi are reasonable in the circumstances of this case.
[459] Exhibit P 6.1.
As Ms Sharp set out in her report, Mrs Carusi can use her knee scooter on various terrain and ramps.[460]
[460] Exhibit DE 7, page 15.
Ms White in her report recommends low tyrex rubber ramps at the low thresholds at the main entrances of her home to assist the scooter to roll over these. I accept her estimate of ramp requirements and costs from similar quotations from Grafton General Products at a cost of $1,964.11.[461]
[461] Exhibit P 12.1, page 6.
In addition, I accept Ms Sharp's recommendation and I would allow the extra cost involved in acquiring and replacing the existing washing machine with a front‑loader washing machine to be installed on a wall bracket. With no evidence as to cost, I cannot calculate a provisional cost for the washing machine.[462]
[462] Exhibit DE 7, page 31.
I also accept Ms Sharp's recommendation to renovate Mrs Carusi's ensuite bathroom to remove the wall separating the toilet to create a larger space for mobility. I would allow a cost of $20,000 based on bathroom modifications as recommended by Ms Sharp.[463]
[463] Exhibit DE 9, page 3.

Holidays

As the Court of Appeal said in Morris v Zanki:[464]
The increased cost of holidays is an item that is properly compensible in a case such as this because it is an expense that would not have been incurred had the tort not been committed.
[464] Morris v Zanki (1997) 18 WAR 260, 282.
I accept that I may award Mrs Carusi compensation for such costs.
The issue here is what is a reasonable award?
Mrs Carusi's claim, on the basis of the assessment of Ms White, is that she would need to be assisted by a 24/7 attendant. That would double the cost of any travel and accommodation costs with additional standard weekly care rate of $7,899.28.
Mrs Carusi claims an allowance for two future one‑week trips in the amount of $35,798.56 being two weekly care rates plus $20,000 as a global contribution towards travel and accommodation costs.
Ms Sharp is of the opinion that the assistance of a 24/7 companion is not reasonable. In her opinion 'this is not related to the index accident and Mrs Carusi would not have travelled unaccompanied previously due to the pain and fatigue experienced with her pre‑existing fibromyalgia and RA'.[465]
[465] Exhibit DE 7, page 26.
I accept Ms Sharp's opinion. In my view, Mrs Carusi's claim for a 24/7 attendant is not reasonable. I also accept Ms Sharp's opinion that because of Mrs Carusi's CRPS it would be very difficult for her to travel by airplane.[466]
[466] ts 1308.
It is very difficult to quantify these costs. In all the circumstances I would allow a $15,000 global contribution towards travel and accommodation costs to recognise the increased organisation required for Mrs Carusi.

General damages

General damages are ordinarily awarded to compensate for pain and suffering and other non‑pecuniary loss.[467]
[467] MR & RC Smith Pty Ltd [113] (Pullin JA, with whom Newnes JA agreed & Murphy JA generally agreed).
The age of the injured person will be relevant because if the pain and suffering or loss of amenities will be borne for a relatively short time, then the award will be less than the award for a person who has to bear the pain and suffering and loss of amenities over a longer period of time.[468]
[468] MR & RC Smith Pty Ltd [128].
The amount of damages must be a fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current ideas of fairness and moderation.[469] The amount must be proportionate to the injuries received and the disabilities suffered by the plaintiff.[470]
[469] Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ).
[470] Planet Fisheries (125).
Pursuant to s 10A of the CLA, in determining damages for non‑pecuniary loss, the court may refer to earlier decisions in order to reach an appropriate award: CLA s 10A(1). The parties to the proceedings or their counsel may bring to the court's attention awards of damages in earlier decisions: CLA s 10A(2). Senior counsel for Mrs Carusi referred me to three authorities, two of which were medical negligence claims with awards ranging from $40,000 to $450,000.[471] Counsel for St Mary's could not find a comparable case in Western Australia. I have also had regard to the Court of Appeal judgment MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2].
[471] Panagoulias (by his Next Friend Fiona Averil Panagoulias) v The East Metropolitan Health Service [No 4] [2017] WADC 118; Wall v Cooper [2008] WASCA 53; Strempel v Wood [2005] WASCA 163.
There is no doubt that Mrs Carusi has suffered an injury which has and continues to have a significant detrimental effect on her, both physically and psychologically. Having regard to all the circumstances of this case an amount of $110,000 would be fair and reasonable compensation for the injuries received by Mrs Carusi and the disabilities caused, having regard to current general ideas of fairness and moderation.

Summary of damages

I provisionally assess Mrs Carusi's damages as follows:

Past economic loss $157,971.84

Past loss of superannuation $11,864.96

Interest on past gratuitous services $30,908.03

Interest on past economic loss $28,434.93

Interest on past loss of superannuation $2,135.69

Future loss of earning capacity $224,568.10

Future loss of superannuation $18,911.22

Special damages $61,438.64

Past gratuitous services $131,411.70

Future gratuitous services $329,984.40

Aids and appliances $14,275.34

Home modifications $21,964.11

Holidays $15,000.00

Future medical expenses $32,409.38

General damages $110,000.00

Total $1,191,278.34

The appropriate order is that Mrs Carusi's claim against St Mary's be and is hereby dismissed.
The appropriate order is that St Mary's claim against WCDF be and is hereby dismissed.
I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Stewart
1 SEPTEMBER 2023

Table 3 - Summary of Medical Services Mrs Carusi
Service	Amount per annum	Total Cost
Occupational therapy	2 sessions (+ travel)	$370.20
Physiotherapy	52 sessions	$7,020.00
Psychology/Counselling	As required	$7,477.50
GP	26 sessions	$2,964.00
Pain Specialist	Quarterly	(estimated) $640.00
Dietician	As required	$956.40
Vocational Rehabilitation	As required	$10,000.00
Case Management	24 hours per annum	$4,385.76
Podiatry	6 consults	$675.00
Total		$34,488.86

Component	Amount
Psychology	$3,012.00
Reboxetine	$247.80
General practitioner consultations	$20,493.69
Dietician	$4,161.66
Podiatry	$4,494.23
Total	$32,409.38

Equipment item	Initial Cost	Replacement	Total Cost
Shower transfer bench	$685.00	3 years	$3,420.61
Scooter - knee walker	$746.43	3 years	$3,727.37
Knee walker gel seat cover	$70.00	1 year	$1,048.65
Long handled sponge	$25.00	1 year	$374.52
Grabber	$45.00	1 year	$674.13
Dressing stick	$15.00	5 years	$44.94
Wheelchair cushion	$150.00	1 year	$2,247.12
Manual wheelchair bariatric folding - I have used the cost from Ms White's report as no cost set out for a Daily Glide bariatric wheelchair	$1,249.00	7 years	$2,673.00
Bed cradle	$65.00	TBA	$65.00
Smartdrive MX	TBA	TBA
Total cost			$14,275.34

Past economic loss	$157,971.84
Past loss of superannuation	$11,864.96
Interest on past gratuitous services	$30,908.03
Interest on past economic loss	$28,434.93
Interest on past loss of superannuation	$2,135.69
Future loss of earning capacity	$224,568.10
Future loss of superannuation	$18,911.22
Special damages	$61,438.64
Past gratuitous services	$131,411.70
Future gratuitous services	$329,984.40
Aids and appliances	$14,275.34
Home modifications	$21,964.11
Holidays	$15,000.00
Future medical expenses	$32,409.38
General damages	$110,000.00
Total	$1,191,278.34