Dale Erwin-Jones v Latitude Underwriting Pty Ltd

[2016] NSWDC 46

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Dale Erwin-Jones v Latitude Underwriting Pty Ltd [2016] NSWDC 46
Hearing dates:	18 – 19 February; 24 March 2016
Decision date:	08 April 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For orders see [166]
Catchwords:	Slip and fall in restaurant; negligence.
Legislation Cited:	Civil Liability Act 2003 (Qld) Evidence Act 2005 (NSW) Personal Injuries Proceedings Act 2001 (Qld)
Cases Cited:	Erwin-Jones v Latitude Underwriting Pty Ltd [2016] NSWDC 34 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Jones v Dunkel (1959) 101 CLR 298 Malec v J C Hutton Pty Ltd (No 2) (1990) 169 CLR 638 Medlin v State Government Insurance Commission (1995) 1825 CLR 1 Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211 Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182
Category:	Principal judgment
Parties:	Dale Erwin-Jones (Plaintiff) Latitude Underwriting Pty Ltd (Defendant)
Representation:	Counsel: R Foord (Plaintiff) S McCarthy (Defendant)   Solicitors: Denniston & Day Lawyers Clyde & Co
File Number(s):	14/215213
Publication restriction:	Nil

Judgment

The plaintiff’s claim

1. The plaintiff claims damages for personal injuries suffered by her on Monday 23 August 2010, when she fell in premises owned and occupied by the International Arts Promotions Pty Limited t/as the Sitar Group. The defendant stands in the shoes of that corporation which was de-registered on 21 June 2015.

2. The corporation operated an Indian restaurant at 331 Sandgate Road, Albion in Brisbane, Queensland. It was common ground in the proceedings that the substantive law of Queensland therefore applied to the proceedings pursuant to John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

3. By orders made by me on 18 February 2016 in Lismore, the plaintiff was granted leave to commence proceedings after the expiration of the three year limitation period, pursuant to s 59(2) of the Personal Injuries Proceedings Act 2001 (Qld) (“PIPA”), nunc pro tunc, by filing her Statement of Claim in this court on 14 July 2014. (see Erwin-Jones v Latitude Underwriting Pty Ltd [2016] NSWDC 34).

4. The trial proceeded on 18 and 19 February at Lismore and concluded on 24 March 2016 at Sydney.

Circumstances of the plaintiff’s injuries

5. The plaintiff claims that she attended the subject restaurant premises with a professional colleague, Mr Michael Allsop, for dinner on 23 August 2010. The weather that evening was wet and windy, and adjacent to the front door and entrance to the premises was a receptacle for patrons to leave their wet umbrellas. That entrance was also used for people to collect take-away food from the restaurant.

6. The flooring adjacent to the entrance was timber flooring. Just inside the entrance was a counter at which customers paid for their meals before leaving the restaurant. At approximately 9.45pm, the plaintiff and her colleague, Mr Allsopp, were leaving the premises. Mr Allsopp walked to the counter to pay for their meal, and the plaintiff, having descended a small stairway to the entrance area, walked directly towards the front door. She alleges that at a distance of some 2-3 metres from the doorway, she slipped on water on the timber flooring, and fell heavily. She placed her right hand out to break her fall, and claims that she suffered injuries to her right wrist and hand, her right forearm, her right shoulder and lower back.

The defence

7. The defendant admits that it owed the plaintiff a duty of care. It otherwise denies that it was negligent, and has pleaded that the plaintiff was under the influence of alcohol and was intoxicated at the time of the alleged injury, giving rise to a statutory presumption of contributory negligence. The defendant has also pleaded contributory negligence on the part of the plaintiff, and under the heading “Obvious Risk”, has pleaded as follows:

“13 In response to the entire Statement of Claim, the defendant says:

(a) Walking on wooden flooring whilst a warning sign was erected stating ‘Caution Wet Floor, cleaning in progress’, was an obvious risk within the meaning of s 13 of the Civil Liability Act (Qld) (“CLA”).

(b) The plaintiff is presumed to have voluntarily assumed the risk of injury associated with walking on wooden flooring whilst a warning sign was erected stating ‘Caution Wet Floor, cleaning in progress’, pursuant to s 14 of the Act.

14 The defendant says that pursuant to ss 13 and 14 of the CLA, the defendant should not be held liable in negligence for the alleged harm suffered by the plaintiff as a result of the materialisation of an obvious risk, and in the alternative, any damages payable by the defendant are to be reduced by 100 per cent or such other amount as the court thinks just and equitable in the circumstances.”

8. The defendant called no evidence as to the matters pleaded in paragraphs 13 and 14 above, and effectively abandoned that part of its defence at trial.

Issues to be determined

9. The issues to be determined therefore were:

1. Whether the defendant breached its duty of care to the plaintiff.

2. If so, whether such breach was causative of the plaintiff’s injuries.

3. The injuries, and extent thereof, suffered by the plaintiff.

4. Damages, excepting damages for non-economic loss which were agreed in the sum of $30,000.00 and past treatment expenses which were agreed in the sum of $809.55.

The plaintiff’s evidence on liability

10. The following summary of the evidence contains my findings of fact, unless otherwise indicated. My factual findings relevant to liability appear later in this judgment.

11. The plaintiff was born on 4 December 1960 and is now the director of a medical workforce under the jurisdiction of the Hunter and New England Local Health District. She has been a registered nurse for 33 years and a nurse manager for about 25 years, at first in New South Wales and then in Queensland. She has lived in Newcastle since 2006.

12. Just prior to 23 August 2010, the plaintiff had been to Roma, Queensland, to review a model developed by Queensland Health in respect of the shortage of rural general practitioners. She had arranged to meet Mr Allsopp in Brisbane to discuss work-related matters and was due to return to Newcastle on Tuesday 24 August 2010.

13. The plaintiff’s flight from Roma to Brisbane was delayed and she was given a complimentary glass of wine on that flight. On arrival at Brisbane, she was met by Mr Allsopp who drove to the restaurant, arriving at between 7.30 and 8.00pm.

14. Upon entering the restaurant, they walked across a timber floor, up a flight of two stairs, to an elevated area where they were shown to the table. The plaintiff gave evidence that it had been raining fairly heavily in Brisbane, and that it was still raining when they arrived at the restaurant.

15. The plaintiff and Mr Allsopp had a meal and shared a bottle of wine. As they were leaving, Mr Allsopp walked down the stairs first and went directly to the counter to pay the bill. The plaintiff walked down the stairs behind him, but not directly behind him. She gave evidence that he was already at the counter by the time she came to the bottom of the stairs. The lighting at the reception area was dim and the floor a dark timber colour. She described what happened next as follows:

“A: So I just got to the bottom of the stairs, took about two or three steps, and then just my right leg come out from under me, and I reached out and put my hand down – just as a reflex, I think – to stop my fall.”

16. She indicated that it was her right hand with her palm down behind her as she fell. Her right leg had come up from under her as she fell backwards.

17. She gave this evidence:

“Q: What did you land on?

A: On my posterior. On my bottom.

Q: Did anything else take your weight?

A: I think that the force of it has gone through my hand and up into my shoulder.

Q: Did you notice anything when you were on the ground?

A: So, immediately, I noticed the pain that I had in my wrist, and I had to actually lay there for a little bit, because I was a bit uncomposed, I guess. It was embarrassing to – for anyone to fall, but to fall in front of a colleague and, it was then I realised that I was wet, the back of me was wet, and after the wait staff had helped me get up, that’s when I realised my, I could feel that my bottom was wet, and I did make a comment to the manager at the time.”

18. The plaintiff described her clothes being wet on her bottom and upper thigh. When asked to describe that, she said:

“A: So, I could feel the sensation of being wet on my leg and my bottom through my clothes. So, I had a longer shirt on, a pair of capris-type pants, and of course underpants, and so I could feel the wetness had gone right through there.”

19. The plaintiff was wearing shoes that had a heel of about 5cms, but said that she never wore particularly high heels.

20. After her fall, the plaintiff was asked whether she looked around. She said:

“A: Yes. I guess my immediate reaction was, you know, that I was wet, that I had slipped on wet floor. My background as a nurse means that I’m always conscious of OH&S matters because I have staff reporting to me, it’s part of what I have to do in my work and I clearly noted that there were no wet floor signs around.”

21. The plaintiff was assisted to her feet by wait staff and then spoke to the manager. She gave the following evidence:

“A: Well, then he just come over to see what was going on, he didn’t come over to apologise or, you know, make any great effort to apologise about what had happened. I made a comment, I – he said, ‘What had happened?’ I said, ‘I’ve slipped on, on the floor and the floor was wet.’ He said, ‘Oh no, no, it can’t be wet’ and I said, ‘It is wet, my bottom’s wet.’”

22. The plaintiff prepared a sketch plan and marked with an ‘X’ where the water was located (Ex C). She was asked how far from the front door was it where she slipped and said:

“A: So I think it was about 2-3 metres.”

23. The plaintiff suffered severe pain in her right hand and wrist and returned to Newcastle the following day where she sought treatment.

24. In cross-examination the plaintiff said she drank two glasses of wine but could not give a definite answer. She did not recall Mr Allsopp or somebody else topping her wine as she consumed it. She denied that her consumption of wine had “taken some effect of her sense” and denied that she was a bit unsteady on her feet. They were in the restaurant for an hour and a half, during which they had a meal and a couple of glasses of wine. As to the incident in which she fell, she gave the following evidence:

“Q: You talk about the fact that your right foot slipped out from under you as you fell, but you didn’t see anything on the floor before you slipped, did you?

A: No, I wasn’t looking at the floor.

Q: Where were you looking?

A: Straight ahead.

Q: You’ve deduced from the fact that your clothing at the rear was wet that there was water on the floor. That is so isn’t it?

A: Yes.

Q: You further deduced that the water on the floor was the cause of you slipping?

A: Yeah.

Q: Are you sure the cause of you slipping wasn’t the fact that while wearing heels of about 5cms on a wooden floor, after having enjoyed some wine with your companion, that you were a bit unsteady on your feet?

A: No.”

25. She agreed that she had spoken to her lawyers about a request for particulars, and that particulars were provided in which it was stated:

“ …However, it was a wet and windy night and patrons were coming and going from the restaurant on a regular basis. Some of them were carrying umbrellas, which the plaintiff believes may have been stored near the counter.”

26. Mr Michael Allsopp gave evidence that he had arranged to collect the plaintiff from Brisbane airport on Monday 23 August 2010, and take her out to dinner. She was a friend and colleague, as he worked in health administration. He gave evidence that they had a meal and a bottle of wine and at around 8.30pm, as they were leaving, he went to the counter to pay for the meal.

27. Mr Allsopp gave evidence that the plaintiff was a couple of metres behind him and as he was in the process of paying the bill, he heard a thump and turned around and saw the plaintiff on the floor. She told him that her right arm was hurting and also her back. He was asked:

“Q: Did you observe anything about the area in which she had fallen at that time?

A: Yes, when I, when I looked, looked around, I saw that there was, there was water on the floor and also I, I looked to the, to the left and there was a bucket and a mop and that’s what I saw.

Q: And in relation to where you heard the thump and saw Mrs Erwin-Jones on the ground and the water, was that the same area, or—

A: That’s correct.”

28. Mr Allsopp gave evidence that he told a member of the staff that the plaintiff had slipped on water on the floor. He was asked :

“Q: And reply, if any, did you get?

A: Ah, she saw that and called the manager, right. Ah, the manager came and the manager denied that there was water on the floor, right, ah, and then I pointed out to them the manager that there was, there was water on the floor and pointed it out to him and then he ceased denying that.

…

Q: And when you say water on the floor, what was it that you actually saw?

A: Ah, there’s a film of water across the floor. It’s, unsure whether it was a, I’m not sure whether it was a puddle, but it was a film of water across the floor and it was obvious.

Q: The surface of the floor, sir?

A: Ah, it was a polished, polished timber floor.”

29. Mr Allsopp described the lighting as subdued restaurant lighting.

30. In cross-examination, Mr Allsopp gave the following evidence about the plaintiff’s location at the time she fell:

“Q: Did she, as far as you were able to ascertain, follow the same path as you approximately?

A: No, I think she was to the left of me. I went, I went that way and she was behind me to the, to the left because when I turned around she was there on, on the, on the ground.

Q: Just talk a little louder, please sir?

A: And when I turned around she was, she was to the left of me, right on, the ground so I, I turned and she was there so it was a different path.

Q: But you were already at the counter, weren’t you at that time?

A: That’s correct.

Q: Which necessitated a right turn, if I could put it that way? Did it not?

A: No, cause you come out of the, out of the restaurant, out of the, where we were and you just, the, the counter is, is, is basically in front.

Q: But as you walked to the counter to pay you didn’t notice any problem to the floor, did you?

A: I didn’t, wasn’t looking at the floor, no, but—

Q: But you didn’t have any trouble walking across it, you weren’t slipping and sliding or anything of that nature?

A: No.

Q: When you talk about a film of water, that’s what you saw after the fall, wasn’t it?

A: That’s correct.

Q: So you’re referring to other than a puddle?

A: I can’t recall the details of, of how deep it was. All I could see that it was, it was obvious water and it was obviously bubbled, as in, as in water on a ah on a gloss floor is.”

31. There was no re-examination.

32. The plaintiff tendered an expert report under the hand of Mr Robert Fogg, on behalf of Total Risk Solutions Pty Limited, dated 20 January 2013 (Ex D). Mr Fogg is a chartered professional engineer with qualifications in occupational health and safety, which were not challenged. He had not inspected the site before preparing his report. His report stated that there were reasonable preventative measures that could and should have been implemented by the defendant, namely:

1. Provision of absorbent matting at the entry of the restaurant adjacent to the location where patrons would be generally depositing their wet umbrellas.

2. Alternatively, the maintenance of a pedestrian walking surface which was available and fit for the purpose.

3. Routine and regular surveillance of the common pedestrian entry and exit route for the purpose of inspecting the surfaces for contaminants, and

4. Ensuring a pro-active management system that addressed the requirements of pedestrian safety was implemented in accordance with Australian Standards.

33. For the purpose of preparing his report, Mr Fogg was qualified with a report under the letterhead Cerno Limited Factual Report dated 2 February 2012. His report contained photos of the entrance area (figs 1, 2 and 4) which gave a helpful depiction of the location where the plaintiff fell.

34. No slip resistance testing was undertaken by Mr Fogg who noted that wooden type surfaces are considered to have poor slip resistant characteristics under wet conditions.

35. In cross-examination, Mr Fogg acknowledged that he had extended an invitation to the plaintiff’s solicitors to attend the premises with him for the purpose of him conducting co-efficient of friction testing and that that invitation was never taken up.

36. He agreed that he had not suggested that matting should have been laid down through the entirety of the restaurant. He also agreed that he had assumed that the likely cause of the water was from the unfurling of an umbrella by a person inside the restaurant. He also agreed that it could have fallen from somebody’s raincoat, or dropped by a customer in a glass.

37. Mr Fogg agreed that having an umbrella bucket with plastic lining was a good safety practice. He agreed that he did not know if the water had been deposited through irresponsible behaviour or by accident.

38. Mr Fogg agreed that wooden floors vary in terms of their slipperiness, depending on wear and tear and, the type of wood and whether they have been polished. Mr Fogg was asked:

“Q: I want to suggest to you respectfully, that a determination of whether this particular floor, when wet, coming into contact with this particular shoe in wet conditions is one of those situations in which one would really need to test the floor in order to confidently assert that the co-efficient of friction was in an unsafe category.

A: To confidently assert, that would be correct.

Q: It would have been a very limited efficacy to attend and attempt to measure the coefficient of friction as long ago after this accident had occurred as you were consulted about the matter, wouldn’t it?

A: It can be, things change over time on floors, particularly wooden floors.”

Defendant’s evidence on liability

39. The defendant called no liability witnesses but read an affidavit of Ms Elizabeth May Herbert sworn on 11 February 2016. Ms Herbert was a solicitor in the employ of the solicitors acting for the defendant and the purpose of her affidavit was to meet a submission anticipated to be put on behalf of the plaintiff pursuant to the principle in Jones v Dunkel (1959) 101 CLR 298. Ms Herbert was not required for cross-examination.

40. The affidavit outlined the enquiries she had made, having had the day-to-day conduct of the matter since August 2014. Those enquiries included obtaining a factual report from Mr John Ross of Cerno Limited.

41. That report, with which Mr Fogg, on behalf of the plaintiff was qualified, recorded that the Sitar Restaurant had a sitting capacity for up to 400 persons.

42. The report contained a description of the circumstances in which the plaintiff was injured. It recorded that she had walked from the raised dining room area down three steps into the foyer area of the restaurant. The report then stated:

“Having traversed the steps, the claimant then proceeded to walk in a diagonal direction across the foyer towards the exit. This required the claimant to step from a carpeted walking area onto the wooden floor surface. As she stepped onto the surface the claimant is said to have slipped and fallen over.”

43. The report confirmed that it was raining on the night and that the insured had placed a plastic lined bucket near the door to the restaurant for patrons to place their wet umbrellas in to prevent water from being traversed into the restaurant. It then stated:

“In addition we are advised as was normal practice, a yellow warning sign was placed near to the interior steps in view of patrons as they came down the steps stating ‘Caution Wet Floor – cleaning in progress’.”

44. The report went on to name two witnesses to the incident. The first, Mr Sijo Joseph, was working at the bar when he saw the plaintiff fall as she went to leave the restaurant. The report stated:

“Confirms yellow warning sign was in place that evening and at the time of the incident.”

Mr Joseph also states:

“That when he went to the aid of the claimant he saw a few drops of water on the wooden floor, near to the umbrella bucket.”

45. The second witness, Ms Shivan Sharma, was a hospitality worker at the restaurant for approximately four years. The report contained the following:

“States she was standing behind the front counter when the claimant was exiting the restaurant. Says she saw the claimant attempt to steady herself before she walked down the steps leading to the foyer of the restaurant.

Says she saw the claimant fall after coming down the steps and heard her cry out as she fell, having placed her foot near the edge of the carpet leading onto the wooden floor.

Says she has been trained to pay attention to the state of the floor, particularly as it was raining on the night of the incident. Nevertheless, states she had no cause to attend to water in the area of the incident that evening.

Noticed the claimant was wearing high heeled shoes.”

46. The affidavit also annexed details of a timber floor cleaner with a product named “Long life timber floor cleaner”, the label of which stated, “Protects and shines”.

47. The affidavit also annexed a further factual report under the hand of Mr Dale Coleman on behalf of Dale Coleman Investigations. That document set out certain basic searches and information obtained from the restaurant manager, Mr Sijo Joseph, who stated that Ms Shivan Sharma still worked in the restaurant in October 2015, notwithstanding contrary advice received that she had left her employment “a long time ago”.

48. I note that after the close of the evidence and at the end of submissions on behalf of both parties, counsel for the defendant sought an order pursuant to s 136 of the Evidence Act 2005 (NSW), restricting the use of the evidence annexed to the affidavit of Ms Herbert. The application was refused.

Defendant’s submission on liability

49. Learned counsel for the defendant provided detailed written submissions on liability and damages. The defendant submitted that the plaintiff had failed to discharge the onus of proof upon her to establish that the defendant breached its admitted duty of care to her in such a way as to cause her injuries. It was submitted that in this case there was no evidence, inferential or otherwise, to guide the court with respect to the length of time that the water had been on the floor. Because of the absence of this evidence, and evidence of how the water came to be on the floor, the court could not determine that the plaintiff came into contact with the water by way of a breach of duty of care on the part of the defendant.

50. It was submitted that the court would not find that the plaintiff fell close to the doorway. It was submitted that if that finding was made, the preventative measure advocated by Mr Fogg, namely, to place absorbent matting near the doorway, would not have any utility, as it was his “key assumption” that the accident occurred “close to the main doorway”. The defendant submitted that Mr Allsopp had not identified with any precision the place where the plaintiff slipped and fell. The plaintiff herself had estimated that she was 2-3 metres away from the doorway. It was submitted that the absorbent matting would have had to extend at least 2 metres beyond the doorway and probably more, and that was not a reasonable response to the risk of harm here.

51. It was also submitted that there was no evidence as to the quantity of water. The plaintiff did not see the water before she fell and, it was submitted that the only evidence as to the character of the contaminant came from Mr Allsopp, who after the fall, described the water as a film on the surface of the floor.

52. It was submitted that it followed that there was no evidence of any breach of duty of care on the part of the defendant that was causative of the plaintiff’s injuries.

53. The defendant also relied on the lack of any slip resistance testing by Mr Fogg, the defendant having invited such testing. That offer had not been taken up by the plaintiff or her legal advisers.

54. The defendant’s submission on Jones v Dunkel, supra, was stated as follows:

“To the extent that any Jones v Dunkel inference is sought to be drawn by the plaintiff against the defendant, the attention of the court is drawn to the affidavit of Elizabeth May Herbert sworn on 11 February 2016.”

55. In oral submissions, counsel submitted that there was no evidence before the court that the floor here was inherently slippery. The court could only speculate as to where the water came from and there was no description in the evidence of the size and nature of the contaminant, namely, water on the floor.

56. It was submitted that the evidence that no one else slipped on the water that night was “neutral evidence”, namely, did not assist either party. Counsel submitted that there were no “temporal poles” here and that reasonable care did not require the defendant to have a set of eyes trained constantly on the floor surfaces in the restaurant. Such a duty would impose an impossibly onerous burden on a small business. It was submitted that the presence of the bucket and mop, adjacent to the entrance, indicates that the defendant did exercise vigilance, and therefore the only inference could be that the water was there for a very short time.

57. Counsel submitted that causation had not been established here because of the need to have placed the absorbent matting at a distance of at least 3 metres distance from the doorway. Further, causation had not been made out on the plaintiff’s case as to lack of signage, as the court would not find the plaintiff would have in fact reacted to any such sign in any event.

58. The defendant’s submission with respect to contributory negligence was that the plaintiff gave evidence that she was not looking at the floor as she walked across the wooden floor wearing 5cm heels on a wet, windy night. Further, whilst there was no toxicology evidence available in this case, it would not be unreasonable to conclude that the alcohol consumed by the plaintiff had some deleterious effect on her, leading to a presumption of contributory negligence pursuant to s 47 of the Civil Liability Act 2003 (Qld). Unless the court found that the presumption had not been rebutted, contributory negligence of 25% or greater should be found.

Plaintiff’s submissions on liability

59. Learned counsel for the plaintiff submitted that it was entirely foreseeable that a customer exiting the premises could and would slip on water at the exit point unless a system of constant inspection and cleaning was invoked. The evidence of Mr Allsopp corroborated the plaintiff’s evidence that there was water on the floor. The evidence established that it was a wet and windy night, that adjacent to the area where the plaintiff fell was a mop and bucket, and a bucket for umbrellas, and hence, there was a foreseeable risk of harm that a person walking across the wooden floor to the exit would slip and fall, thereby causing themselves serious injury, if there was water on a polished timber floor.

60. Counsel submitted that the defendant’s reliance on the distance of the plaintiff’s fall from the doorway of at least 3 metres was a “red herring”. The evidence established that the fall occurred some 2-3 metres from the doorway and adjacent to the place where the bucket was available for patrons to leave their wet umbrellas. The presence of the mop led to an inference that there had been an earlier need to mop the area.

61. The evidence also established that the restaurant had signs available to put out to warn patrons of the presence of slippery surfaces. The evidence of the plaintiff that her clothes were soaked through led to an inference that there was a considerable amount of water present.

62. It was submitted by counsel that this was not a case about how long the water was present for, but rather, that the water should not have been present at all. It was submitted that the defendant had a duty to ensure that its employees were keeping a lookout and constantly mopping and drying the floor if required. It was submitted, “that a spill of such moment could happen with staff keeping a proper lookout beggars belief”.

63. It was further submitted that the spilling of water from a glass was highly improbable. There was no bar nearby and inferentially the water would have come from the clothing or umbrellas of the many people coming and going from the restaurant. In all of the circumstances, the court should draw an inference that the accumulation of so much water would have occurred over a lengthy period of time and should have been removed. Hence, the defendant breached its duty of care and that duty of care and but for that breach of duty of care, the plaintiff’s injuries would not have occurred.

64. A simple and cost effective preventative measure was the provision of a non‑slip mat as advocated by Mr Fogg.

65. It was further submitted that there could be no reduction of the plaintiff’s damages by her own contributory negligence. The court would accept her evidence that she was not intoxicated and therefore s 47 of the CLA was not engaged. In the circumstances in which she was injured, there could be no finding of contributory negligence.

66. The plaintiff also submitted that the court should draw an inference pursuant to the principle in Jones v Dunkel, supra, that witnesses who were available, and not called by the defendant, would not have assisted the defendant’s case. The affidavit of Ms Herbert revealed that such witnesses were available and in fact still working at the restaurant.

Findings of fact

67. Having regard to the whole of the evidence, on the balance of probabilities, I find the following facts established:

1. That the plaintiff and Mr Allsopp arrived at the restaurant at approximately between 7.30 and 8.00pm and remained there for approximately one hour and 30 minutes.

2. During that time, they consumed a meal and shared one bottle of wine.

3. Having finished their meal, Mr Allsopp went directly to the counter, adjacent to the entrance of the restaurant, to pay the bill.

4. Notwithstanding that she had earlier consumed a complimentary glass of wine on her flight from Roma to Brisbane, at the time the meal was completed, I am not satisfied on the evidence that the plaintiff was intoxicated so as to engage s 47 of the CLA. I accept the plaintiff’s evidence that she was not so affected by the consumption of alcohol.

5. The plaintiff went from the dining area and descended the three steps to the foyer area, some distance behind Mr Allsopp.

6. Rather than follow him to the counter, she proceeded to cross directly to the front entrance of the restaurant, which involved her traversing the wooden floor.

7. Adjacent to her route, was a bench seat for persons awaiting collection of their take-away food. Next to that bench seat was a plastic lined bucket provided by the restaurant for patrons to leave their wet umbrellas. Also present was a mop.

8. The plaintiff had taken two or three steps after she descended the stairs towards the front door. I accept her evidence that her right foot slipped out from under her at a point that was between 2-3 metres away from the front entrance.

9. The plaintiff fell, and in the course of doing so, placed out her right hand to break her fall.

10. The plaintiff fell heavily on her right hand and her bottom.

11. I find that there was sufficient water on the floor so as to soak through the plaintiff’s clothing on her upper leg and bottom.

Determination

68. The defendant’s duty was to take reasonable care to avoid the unnecessary risk of injury to its patrons. Given the climatic conditions, namely, a wet and windy night, the defendant addressed that duty by providing, inside the restaurant and within a short distance of the front door, a plastic lined bucket for patrons to leave their wet umbrellas. The ingress of water was also caused by being carried into the premises on customers’ clothing and shoes. It was clearly for this purpose that the defendant had a mop available for drying and cleaning the polished floor surface.

69. I do not accept the submission made by counsel for the plaintiff that “this was not a case that how long the water was present for, the water should not have been present at all”. That submission implies that the duty on the defendant was to provide constant surveillance and cleaning of the floor surfaces in its premises. That would not amount to a duty to take reasonable care.

70. The defendant’s premises comprised a large restaurant, catering for up to 400 patrons. Its owners clearly recognised the risk of harm to patrons from water accumulating on hard timber surfaces inside the foyer area. For that reason, it provided a bucket for wet umbrellas and a mop for staff to clean up any spillage, or accumulation of water on the timber surface. The evidence also established that the staff had available signs warning customers of a slippery surface. I accept the evidence of the plaintiff that there was no such sign present.

71. I also accept the defendant’s submission that this was not premises, such as a shopping centre, which would require evidence of a regular system of inspection and cleaning. However, the duty of care on the defendant did require it to take reasonable care to maintain safe premises, and to ensure that the ingress of water did not accumulate on the polished floor surfaces. Failure to do so, gave rise to a risk of harm that customers would slip and fall, and thereby suffer serious injury.

72. I find that there was a sufficient accumulation of water, which would not have been visible to the plaintiff, given the reduced lighting and dark timber surface of the flooring, to cause the plaintiff’s right foot to slip and to soak through her clothing. The description by Mr Allsopp of the surface as having a “film” of water on it, is consistent with the majority of it being soaked up by the plaintiff’s clothing. Notwithstanding that, his evidence corroborates the presence of the water on the floor on which the plaintiff fell.

73. The defendant called no evidence as to what in fact its system was. The unexplained absence of any of the defendant’s employees from the witness box, and in particular, that of Mr Stoji and Ms Sharma, as identified in the Cerno Pty Limited factual report, gives rise to an inference that their evidence would not have assisted the defendant’s case, pursuant to Jones v Dunkel.

74. Applying probabilistic reasoning, as relied on by the High Court in Strong v WoolworthsLtd t/as Big W [2012] 246 CLR 182, I find, on the balance of probabilities, that sufficient water had accumulated during the evening by ingress into the defendant’s premises on the clothing, shoes and umbrellas carried by its patrons, and those attending to collect take-away food orders, to accumulate in sufficient volume that its presence ought to have been identified and remedied by the defendant.

75. The risk of harm here was that a customer, including the plaintiff, would slip on the wet surface and suffer serious injury. That risk was foreseeable and not insignificant. There was available to the defendant a number of inexpensive preventative measures, namely, absorbent matting in the area of the foyer where umbrellas were carried until they were placed in the bucket provided, regular mopping of the floor and the placement of signs warning of a slippery surface. Having regard to the matters set out in s 9(2) of the CLA, I find that a reasonable person in the position of the defendant would have taken those precautions. I am therefore of the view that the defendant breached its duty of care to the plaintiff.

76. I further find that but for the defendant’s breach of its duty of care, the plaintiff would not have been injured. I therefore find factual causation and scope of liability made out pursuant to s 11 of the CLA, and find that the defendant’s breach of its duty of care was causative of the plaintiff’s injuries.

77. There will therefore be a verdict for the plaintiff in this matter.

78. I further find that the plaintiff was not intoxicated and there was no presumptive contributory negligence pursuant to s 47 of the CLA. Whilst the plaintiff gave evidence that she was not looking at the floor, the law does not require her to do so. Rather, I find that she was looking ahead, namely, towards the exit of the premises and taking reasonable care for her own safety. Given the reduced lighting and dark and polished surface of the floor, I decline to make any finding of contributory negligence against the plaintiff in these circumstances.

Damages

The plaintiff’s evidence

79. The plaintiff was 49 years of age at the date of injury, and 55 years at the time of the hearing. As set out above, she held a responsible position as a director of a medical workforce for the Hunter and New England Local Health District. The plaintiff was an impressive witness who gave her evidence factually, and without embellishment.

80. In 1990 the plaintiff suffered a Potts fracture of her right foot, and in 2009, she had been involved in two motor vehicle accidents in which she suffered soft tissue injuries. She had also consulted a psychologist in 2009 with respect to depression and anxiety arising from work issues.

81. The plaintiff separated from her husband in 2003 and thereafter lived with her daughter, Stephanie, who is now aged 18 years.

82. The plaintiff had also suffered, prior to the accident, from right upper quadrant pain which she described as “referred pain”. That did not impair any of her work or recreational activities. The plaintiff described herself as “a fairly active person”, playing tennis and squash, and intending to play golf. She had a fitness regime which involved Pilates and Yoga.

83. The plaintiff’s work as a manager involved her working 50-60 hours per week, often on weekends. Her work involved a lot of keyboarding and she also had to attend sites across a large geographical region described as “the size of England”. This involved driving to country towns up to six and a half hours away from Newcastle.

84. Upon her return to Newcastle, after the fall, the plaintiff attended the emergency department of John Hunter Hospital. Initial x-rays revealed no fracture, however, the plaintiff was referred to the care of Dr S Brindley, who referred her for a bone scan which revealed an un-displaced fracture of the right distal radius. She wore a “back slab plaster” for two weeks and then a fibreglass cast on her right arm for five weeks.

85. In early 2011, the plaintiff suffered another episode of upper right quadrant pain. She had only taken two days off work following the accident.

86. In March 2012, the plaintiff was referred by her solicitors to Dr M D Gliksman. At that time, she described her pain as “only intermittent, at the end of the work day or at the end of the week”. She had difficulty driving long distances and was unable to play sport.

87. The plaintiff also gave evidence that prior to seeing Dr Gliksman, she had noticed her shoulder being “achy”, but she had not connected that with the injury to her wrist.

88. Dr Brindley had referred her for physiotherapy and also recommended a splint, which the plaintiff wore whilst at work.

89. The plaintiff gave evidence that she had intended to work to age 70 prior to her injury. She enjoyed her work. She gave evidence that when she saw Dr Gliksman for the second time on 14 February 2014, she felt that she had become worse in that she had pain in both her shoulder and wrist which impacted on her ability to do housework and lift and carry things. Dr Gliksman recommended an MRI of her shoulder which she underwent on 22 January 2015. On 25 September 2015 she underwent nerve conduction studies. She had noticed that from 2012 onwards the pain in her wrist had increased, whilst the strength of her right wrist had decreased.

79. The plaintiff gave evidence of some difficulties she had in personal care involving drying her hair, and difficulties with household duties. She had not resumed any recreational activities and now relied on her daughter Stephanie to carry out the heavier work at home, including vacuuming, hanging out washing, changing sheets and moving furniture. Those activities led to pain in her wrist and shoulder. She gave evidence that in the event that Stephanie left home, she would require paid assistance to do the housework. She described herself as extremely house-proud and required assistance with heavy tasks at home and shopping. The plaintiff estimated that she spent 4-5 hours per week on housework prior to August 2010, and that Stephanie assisted her on average 2-3 hours per week in total.

80. The plaintiff gave evidence that she will have to retire earlier than she had planned, and thought that she could continue working on a full time basis at most for another 5 or 6 years, to age 62.

81. In cross-examination, the plaintiff agreed that she had attended her local medical officer between 3 September 2010 and 5 July 2012 on about 13 occasions about unrelated matters and made no complaint of any problem with her right wrist or shoulder. She said she had symptoms in her wrist between 2010 and 2012, but from 2012, the pain in her wrist and shoulder became progressively worse. At no time did she tell Dr Brindley that she had shoulder pain. She saw him on two occasions in August and October 2010.

82. The plaintiff denied that for a period of two years following the accident she had no pain in her right shoulder. She had pain which was not significant, and was not impacting upon her enough for her to complain to her GP. The plaintiff gave evidence that her pain and range of movement had become worse over time. She was asked:

“Q: As things have got worse over time, as you say, what steps have you taken in terms of medical intervention to assist you in lessening the symptoms which you say you have?

A: I use the brace to support my wrist when I’ve got pain, and try to stretch my wrist when I’m at work, when I’m keyboarding. I haven’t taken any absolute physiotherapy, it hasn’t been prescribed by Gliksman or Harvey or anybody else. My understanding from my own knowledge is that there are options for surgery on both the shoulder and the wrist which, at this stage, I wouldn’t want to undergo, the success rate is not good.”

94. The plaintiff accepted that she had a knowledge of the body and capacity to show some initiative to request assistance or treatment. Notwithstanding that, she had had no treatment. Her reason for not returning to see Dr Brindley was that she accepted that she had a slow degeneration of her wrist which was not something that was easily fixed.

95. It was put to the plaintiff that she believed her highly decorated career in the nursing field was being shortened without her seeking to understand the true nature of her problem by consulting Dr Brindley. She answered:

“A: As I outlined before, my position was that if the injury is degenerative, there is very little that you can do to address it. Yes, physio can go some way to helping you manage your pain, it won’t change the injury or the outcome of the injury, and therefore I didn’t seek to get any further opinion. I know from my own medical clinical training that the options are surgery, neither a carpal tunnel release, nor a shoulder reconstruction are very successful. They’re extremely painful and they both require a lot of time off work, all of which I can’t afford at this point.”

96. The plaintiff denied that she had told Dr Harvey that she was playing social tennis three or four times a year. She also denied telling Dr Harvey that she played two or three times a year. She agreed that her skills as a senior manager in the health industry are portable.

97. The plaintiff agreed that it was only when she had to drive for more than an hour that she had difficulty. That did not occur every day. She also had to have breaks. Before the accident she agreed she did not have a fixed retirement date in mind, rather, it was a matter of whether she could afford to retire. She agreed that managing 25 people was a stressful position, but disagreed that she would be unable to cope with this pressure to age 70. Although she suffered pain with keyboarding, the injury to her wrist had not stopped her from keyboarding. She agreed that she had a very “resolute fortitude”.

98. In respect of her work future, the plaintiff gave the following evidence in cross‑examination:

“Q: You accept this, though, don’t you, that – I’m talking in a cumulative way now because I’ve already put to you matters involving stress and pressure – when one aggregates those issues with problems you have with your foot and/or ankle and with your hip, you’d accept, wouldn’t you, that it is even more unlikely that you will have continued in this senior role until the age of 70?

A: No I disagree.

Q: Because although you say you suffer these problems with your wrist and shoulder when driving, it doesn’t stop you driving, does it?

A: No.

Q: Although you say it causes you pain when you’re keyboarding, it doesn’t stop you keyboarding?

A: No.

Q: Because you’re someone who, by your own testimony before his Honour, is someone of a very resilient fortitude, aren’t you?

A: That’s correct.

Q: Notwithstanding these problems which you’ve told his Honour about, it’s very possible, isn’t it, that you’ll soldier on through those problems and they won’t interrupt any commercial intentions you had?

A: I don’t think that anyone could give you a clear cut answer on that.

Q: That’s just the thing, isn’t it, that although you’re concerned about the future, the more likely picture that awaits you because of your stoicism and fortitude is that you’ll just keep on going and break through the pain barrier if there is one? Do you accept that?

A: I think there’ll be a time when I can’t break through the pain barrier and that it would affect my ability to do my job well and if that led to errors, then I wouldn’t want to continue to work.

Q: But putting aside the opinion of Dr Gliksman, that’s just speculation on your part, isn’t it?

A: Well, I feel the pain at the end of every day now, so if I feel it after five years, in another five years I feel that that will limit me being able to do the keyboarding at all.”

99. I intervened to ask the plaintiff whether there was any scope for future promotion or advancement in the health structure that she was working within at the moment. She answered:

“A: There’s always a possibility. Unfortunately, health is fraught with politics, so I don’t see it on the horizon.”

100. It was put to the plaintiff that as her daughter was an adult, working as a hairdresser, there would be some sharing of domestic responsibilities. She said that she was a very obsessive compulsive person in terms of cleanliness and tidiness, and did not hold expectations for her daughter to do housework. She disagreed that sharing the housework was the most likely arrangement that they would have enjoyed in any event.

101. The plaintiff was challenged about doing household chores with one hand, for example, vacuuming. She gave this evidence:

“A: I can do it with my left hand, and have done it with my left hand, but as I said earlier, I am very dominant in the right hand and not very dexterous with the left hand, so it takes me twice as long to do it.”

102. In re-examination the plaintiff gave evidence that if the condition of her wrist or shoulder deteriorated further, she would seek further medical advice.

The evidence of Ms Stephanie Jones

103. The plaintiff’s daughter, Ms Stephanie Jones, gave evidence. She is 18 years of age and an apprentice hairdresser. She was aged 12 at the time of her mother’s accident and she gave evidence that since that time she had assisted her mother with various household tasks because her mother had pain in her wrist and shoulder. Those tasks included vacuuming, cleaning the bathroom, doing ironing, putting the garbage out and washing. Ms Jones also attended to the heavier manual tasks around the house and assisted her mother with the shopping.

104. In cross-examination, Ms Jones agreed that the plaintiff did the cooking and other household chores. She agreed that she had a close relationship with her mother and she would not tolerate a situation where her mother, who worked very long hours, came home from work and had to do all the housework.

105. In further examination in chief by leave, Ms Jones gave evidence that she would probably be leaving home in a couple of years, once she finished her apprenticeship.

The medical evidence

106. The plaintiff’s medical evidence (Ex A1-A16) included the John Hunter Hospital clinical notes and two reports of Dr S Brindley dated 30 August 2010 and 14 October 2010. Dr Brindley confirmed that although an x-ray taken of the plaintiff’s right wrist did not show any significant boney injury, the bone scan was consistent with an un-displaced fracture or bone bruise in the distal radius. The plaintiff’s treatment involved immobilisation in an appropriate splint which she wore for 7 weeks. Dr Brindley reviewed the plaintiff on 14 October 2010 and reported that the fracture was healing well, although she had limitation of movement of her right wrist and her grip strength was reduced. Dr Brindley was of the opinion that she should make a very satisfactory recovery.

107. The plaintiff relied on a number of reports from Dr M D Gliksman, an occupational physician, to whom she was referred by her solicitors. In a report dated 7 March 2012, Dr Gliksman noted that the plaintiff informed him “that there are no restrictions in activities of daily living in which she can participate, provided she observes care and paces herself according to her symptoms and capacity”. On physical examination, her grip strength was reduced in her right upper limb. Clinical examination indicated the presence of ongoing right wrist pathology. Dr Gliksman also stated: “There is also a suggestion of milder ongoing right shoulder pathology”. He recommended an x-ray and ultrasound and proffered the opinion that there “exists a direct connection between the event described as occurring in August 2010 and clinical findings made by my examination on 7 March 2012”. Dr Gliksman was of the opinion that the plaintiff would require assistance in and around the home for a period of 12 weeks following the accident.

108. In a report dated 14 February 2014, Dr Gliksman proffered the opinion that there was clinical evidence of ongoing right shoulder and right wrist pathology, with objective evidence of deterioration in the latter. He went on to opine:

“Currently, the conditions do not appear to effect adversely earning capacity, although full time work of the nature described is currently conducted at the cost of symptomatic aggravation.

It is my medical opinion that due to the injury sustained and the limitations this imposes on domestic duties, current and ongoing requirements are in the order of two to four hours of domestic assistance per week.

However, with deterioration of the right wrist condition developing as expected, it is likely that the needs will increase to four to six hours per week within a decade.

Given the deterioration in the right wrist condition which represents post-traumatic degenerative change, it is my medical opinion that Ms Erwin-Jones is unlikely to remain in the workforce until the age of 70 years. She is currently 53 years old and I would anticipate that retirement will be required in approximately one decade’s time. It is also likely that she will require part‑time duties rather than full-time duties, within the next five years, due to the deteriorating condition affecting the right wrist.”

109. Dr Gliksman recommended a CT scan of the right wrist and an MRI of the right shoulder be performed. An MRI of the right shoulder carried out on 22 January 2015 concluded that there was a minor supraspinatus tendinopathic change, together with a sub-acromial bursal fluid effusion.

110. A CT scan of the right wrist carried out on 22 January 2015, reported by Dr John Korber, showed the following findings:

“CT scans of the right wrist were performed, noting the history of previous distal radial fracture. There is normal volar angulation of the distal radial articular surface. There is slight deformity of the dorsal aspect of distal radius in keeping with the previous injury. Cystic changes seen in the distal ulna, at the DRUJ. Cystic changes are also seen in the distal radius on the volar lip. A tiny bony density is seen in the volar aspect to the lunate. This could represent a small loose body. No other abnormality has been demonstrated in the right wrist CT. No significant bony deformity. Normal scapholunate joint. All wrist joint spaces are well maintained.”

111. In a report dated 24 July 2015, Dr Gliksman referred to studies performed by Dr Korber. In respect of the MRI scan, he noted the appearance was suggestive of a small insertional tear of the supraspinatus. In respect of the CT scan of the right wrist, he stated that it showed developing post-traumatic degenerative change affecting that wrist. Physical examination showed evidence of deteriorating change in the right wrist.

112. Under the heading “Medical Advice”, Dr Gliksman proffered the following:

“1 The diagnoses are of chronic tendinopathy affecting the right shoulder, and post-traumatic degenerative change affecting the right wrist resulting in significantly restricted grip strength, restricted range of motion and possibly, developing right carpal tunnel syndrome.

2 The clinical findings today are broadly similar (although a little worse) than those reported by Dr Harvey. This is consistent with deterioration in the right wrist.”

113. Dr Gliksman recommended nerve conduction studies to be performed to confirm whether or not carpal tunnel syndrome was developing “as a result of the degenerative change/injury caused to the right wrist”. That study was carried out on 25 September 2015 by Dr A Loiselle, consultant neurologist. He concluded

“There is electro physiological evidence of a mild median neuropathy at the right wrist, consistent with mild right carpal tunnel syndrome.”

114. In a report dated 20 October 2015, Dr Gliksman stated that his opinion previously expressed on 24 July 2015 that there was a possible developing right carpal tunnel syndrome was confirmed by the nerve conduction study. By email dated 21 October 2015, Dr Gliksman was asked if he could comment as follows:

“Could the carpal tunnel be caused and/or aggravated by the subject incident?”

By email dated 21 October 2015, he responded, “Yes it could”.

115. Dr Gliksman was required for cross-examination and gave evidence by telephone. His opinions as outlined above were contrary to those of Dr F J Harvey, who was qualified by the defendant. A late report of Dr Harvey was served by the defendant and Dr Gliksman was given the opportunity to give evidence in chief in relation to that report. On the question of surgery to the plaintiff’s right wrist in the context of the loose body found in the CT scan, Dr Gliksman said he would refer the plaintiff to a hand surgeon. However, there were risks involved in that surgery, including inflammation which could make the degenerative changes worse.

116. Dr Gliksman confirmed that the plaintiff’s right wrist had deteriorated since the first time he examined her and that was made out by the results he received by the objective testing of her right grip strength on the dynamometer.

117. On the question of causation of the plaintiff’s shoulder condition, relating to the mechanism of injury, Dr Gliksman gave the following evidence:

“A: It’s a bit of classic that it does so. You have an impact transmitted to the shoulder in a position where it’s likely to exert a traction force of muscular and ligament, so it’s – shall I say it’s certainly very credible.”

Q: Given the main complaint of the plaintiff following this injury, was the injury to her right wrist, do you have any experience of persons not being aware of suffering injury to other parts of their body necessarily until sometime after the more acute is beginning to resolve?

A: I am not sure whether – not aware of – what shall I say – not complaining of a lesser injury one often see this where people are of a view that something will resolve by itself and only as it declares that it will not and deteriorates, people will then draw attention to it. It’s particularly so where there’s another problem which is quite manifest and occupies a great deal of time and concern in relation to pain and function. So I guess to summarise that, yes, I think it is possible, the position that you have put.”

118. Dr Gliksman was also asked about the nerve conduction studies and agreed that they confirmed, in his opinion, emergence of a carpal tunnel syndrome. He was asked:

“Q: Just so it’s clear, on the balance of probabilities then, you relate the carpal tunnel syndrome to the subject fall?

A: In that it has caused degenerative change which is more, which is likely to have resulted in carpal tunnel syndrome. So there’s an unbroken chain.”

119. When asked about Dr Harvey’s opinion to the contrary, Dr Gliksman answered:

“A: Bearing in mind that he is a fellow practitioner, my view is the report is disingenuous.”

120. In cross-examination, Dr Gliksman was questioned about classic symptoms of carpal tunnel syndrome, for example, numbness, which he agreed was not present in the plaintiff. Another symptom was pins and needles, which also was not present. He did not agree that darting pain from the wrist was a classic symptom on the basis that it was too general. He agreed that the ring finger and the little finger would not be affected. He was asked:

“Q: Notwithstanding any of those classic signs, you began to suspect the syndrome based upon some other complaint, did you?

A: No. I suspected it on the basis of a third classic which can exist without the other two, although the other two usually don’t exist without it.

Q: What is that, doctor?

A: Weakness, weakness in grip strength.”

121. Dr Gliksman agreed that weakness may be a classic sign of many other forms of pathology.

122. Dr Gliksman agreed that there was more than one way to get carpal tunnel syndrome. In this case, Dr Gliksman gave evidence that the post-traumatic degenerative changed caused by the fracture of the wrist caused a narrowing of the carpal tunnel. Dr Gliksman’s opinion was challenged as follows:

“Q: But to the extent that you now opine that she has deteriorating symptoms through the degenerative process, it doesn’t naturally follow, does it, that that is a consequence of the accident?

A: In the absence of another identifiable cause, I believe it does.”

123. Dr Gliksman did not agree to the general proposition that overuse of a limb may be a cause of carpal tunnel syndrome. He described that as “an unproven assertion”.

124. Dr Gliksman gave the following evidence:

“Q: Have you ever to this day considered any other cause for the plaintiff’s shoulder injury other than the event of August 2010?

A: I came to the conclusion as to causation on balance of probability. So that issue doesn’t arise.

Q: Are you being a bit evasive when you say that, doctor, are you, cause you don’t seem to have answered the question?

A: I’d say only to the extent which you’re being obtuse.”

125. It was put to Dr Gliksman that the totality of his opinions with respect to the causation of the plaintiff’s shoulder problems lacked proper scientific rigor. He did not accept that. There was no re-examination.

Defendant’s medical evidence

126. The defendant’s medical evidence was contained in a tender bundle (Ex 1). The bundle contained four reports of Dr F J Harvey, orthopaedic surgeon, dated 17 February 2015, 20 July 2015 (two reports) and 21 October 2015. A further report from Dr Harvey dated 18 February 2016 became Ex 2.

127. In his report dated 17 February 2015, Dr Harvey concluded that the plaintiff suffered an un-displaced fracture through the distal end of her right radius and that fracture was caused by the fall on 23 August 2010. Dr Harvey described this as a minor fracture of minimal significance. At the time of his examination, the plaintiff had a very slight loss of grip strength and did have some residual symptoms. He expected her grip strength to improve.

126. In a report dated 21 October 2015, Dr Harvey stated that when he examined the plaintiff on 17 February 2015:

“She did give me the impression that she had experienced some pain in the right shoulder since late 2010, which was less than four months after the injury. In fact, she did not make any complaint of pain in the right shoulder until July 2012:

He saw little reason to relate the onset of shoulder pain to her previous wrist injury, almost two years beforehand. Given the plaintiff’s age, Dr Harvey saw nothing unusual about the findings on the MRI scan of her right shoulder. In respect of Dr Gliksman’s diagnosis of chronic tendinopathy affecting the right shoulder, Dr Harvey agreed with that diagnosis. However, he stated:

“If Ms Erwin-Jones had suffered any traumatic tear of the rotator cuff at the time of her fall on 23 August 2010, it would have been inevitable that she would have made some complaint of shoulder pain at the time.”

129. In the report dated 18 February 2016, Dr Harvey opined that the diagnosis of carpal tunnel syndrome could not be made on the electrophysiological evidence of mild median neuropathy at the right wrist. He disagreed with Dr Gliksman’s diagnosis of carpal tunnel syndrome and stated there was nothing particularly unusual in the nerve conduction studies. On his examination of the plaintiff on 17 February 2015, she did not describe any symptoms suggestive of carpal tunnel syndrome. He added:

“If Ms Erwin-Jones did develop carpal tunnel syndrome at this stage, I would see no reason to relate it to the un-displaced radial fracture she sustained five years previously in August 2010. The spontaneous development of carpal tunnel syndrome in females of this age group is very common and there is a high incidence in obese persons. Ms Erwin-Jones has a BMI of 33 and therefore, would come into the obese range.” (see Ex 2)

130. Dr Harvey was required for cross-examination and gave his evidence by telephone. He gave evidence that he had many years’ experience in the outpatients department at Prince of Wales Hospital in North Shore, with responsibility for acute management of orthopaedic trauma, and particularly of hand trauma. He was a foundation member of the Australian Hand Surgery Society, and also a corresponding member of the American Society for Surgery of the Hand. His curriculum vitae became Ex 3.

131. Dr Harvey gave evidence that carpal tunnel syndrome surgery would have been one of the most common operations he had carried out over the years. In respect of carpal tunnel syndrome he was asked:

“Q: Firstly, dealing with the symptoms, what are the classic symptoms?

A: Well, the classic symptoms is a person with, having tingling and numbness in the thumb, index and middle fingers and very classically it has a nocturnal periodicity with people waking up at night and that’s often a reason that brings them to surgery, they wake up at, wake up at night with, because of the painful tingling in the fingers. And they, during the day, they get it with certain activities such as driving a car and holding a book for a long time. But it’s usually not continuous until the late stages in which you get a neurological deficit and then the signs become more obvious.

Q: Well, that’s the first classic symptom. Are there others?

A: The main symptoms is pins and needles confined to the thumb, index and middle fingers and very typically occurring at night.

Q: If someone presents with none of those classical symptoms but does complain of weakness, would that, of itself, lead one to suspect carpal tunnel syndrome?

A: Certainly would not.”

132. When asked in respect about the nerve conduction studies, Dr Harvey opined that a diagnosis of carpal tunnel syndrome could not be made on that finding alone.

133. Dr Harvey was referred to the CT scan of Dr Korber dated 22 January 2015, and was asked whether he had seen any evidence that the fracture referred to therein suffered by the plaintiff to her distal radius, in any way affected the articular surface of the bone. He answered:

“A: Absolutely no evidence of that, no.”

134. Against the proposition, the last sentence of the CT scan read, “All wrist joint surfaces are well maintained”. Had there been a damage to the articular surface of the bone, Dr Harvey would have expected Dr Korber, a clinician he held in high regard, to report on it.

135. Dr Harvey was asked about matters of history taken from the plaintiff, including her playing golf and tennis since the accident.

136. In cross-examination, Dr Harvey agreed that he saw the plaintiff once only in February 2015 and described her injury as a “fairly trivial fracture”. He confirmed that he did not believe she had carpal tunnel syndrome and denied that loss of grip strength was one of the symptoms associated with that syndrome. The reason for that, was that grip strength depends on the long “flexes of the fingers”, (meaning flexor tendons), and does not come from muscles that are supplied by the median nerve beyond the carpal tunnel.

137. Dr Harvey denied that the testing of grip strength by dynamometer was an objective test. Dr Harvey did agree that the mechanism of injury by the plaintiff using her right hand to break her fall could cause an injury to the right shoulder.

138. Based on his examination of the plaintiff in February 2015, Dr Harvey agreed that she had difficulties with her right shoulder. He had recorded a slight loss of movement in the right shoulder.

139. Dr Harvey denied a degenerative condition of calcification arising from the un‑displaced fracture of the radius. He gave evidence that ossification is the bone formation that occurs in the healing of a fracture, which is not a degenerative condition. The doctor was asked:

“Q: Dr Harvey, that was precisely the point that I was driving at, and that is that where there was an un-displaced fracture such as this, the ossification could cause a narrowing of the carpal tunnel sheaf, couldn’t it?

A: Not on the – the fracture is a partial fracture and it’s on the dorsal aspect of the distal radius. There is slight deformity – I am reading from Dr Korber’s report – on the dorsal aspect of the distal radius. That’s on the opposite of the radius to the carpal tunnel.”

140. There was no re-examination.

The plaintiff’s submissions on damages

141. The plaintiff provided detailed, written submissions on damages, including submissions on the divergence of opinion between Dr Gliksman and Dr Harvey, as set out above. It was submitted that Dr Gliksman’s opinion should be preferred in circumstances where he had thoroughly examined the plaintiff on three occasions over a four year period, whereas Dr Harvey had only examined her on the one occasion.

142. Notwithstanding the agreement as to damages to be awarded for non-economic loss, this is an important issue which will affect the question of whether damages are awarded, and if so, the quantum thereof, in respect of the plaintiff’s claim for future economic loss and future paid care. It was submitted that on the basis of Dr Gliksman’s reasoning and objective investigations, what might have originally have been thought to have been a comparatively minor injury, had become the subject of degeneration and deterioration to a significant extent. Further, the mechanism of the injury was such as to provide a causal link to the plaintiff’s shoulder injury, notwithstanding the absence of any complaint by the plaintiff of shoulder pain for a period of some 18 months following the injury.

143. It was submitted that the plaintiff had mitigated her loss. She had only two days away from her employment and no other time off work. She had sought minimal treatment, but had been stoic in the face of a deterioration in her condition. The plaintiff relied on the following schedule of damages:

Non-economic loss (agreed)	$30,000.00
Past economic loss	$780.00
Future economic loss (from age 62 to 70, deferred for six years) - $2,182.00 x 345.6 x .746 x .85	$478,174.00
Treatment expenses	$809.55
Future treatment expenses including possible surgery and occasional visits to GP and Specialists	$10,000.00
Future loss of superannuation (11.5% of FEL)	$54,990.00
Future paid domestic assistance (5 hrs per week x $44 per hr x 855.7)	$188,254.00
Total	$763,007.55

144. In respect of the plaintiff’s claim for future economic loss, learned Counsel relied on the judgment of Keane JA in Reardon-Smith v Allianz Australia InsuranceLtd [2007] QCA 211 at [40], as to the correct approach to be taken in assessing damages pursuant to s 55(3) of the CLA (Qld).

The defendant’s submissions on damages

145. Learned Counsel for the defendant submitted that there were compelling reasons why the court would accept the opinions of Dr Harvey over those of Dr Gliksman. The plaintiff had suffered an un-displaced fracture of her distal radius and came under the care of Dr Brindley. He was of the opinion that she had a positive prognosis and would make a very satisfactory recovery. She has not attended upon Dr Brindley since 2011. She attended her local medical officer on numerous occasions over the ensuing years, for unrelated reasons, and made no complaint in relation to either her wrist or shoulder between 12 November 2010 and 3 April 2012.

146. Eighteen months following the accident, the plaintiff was examined by Dr Gliksman and there was no history taken at all of any problem with her shoulder. The plaintiff was an experienced health professional, being a nursing manager, and it was submitted that it would be remarkable for someone with her experience to go uncomplaining for that period of time if she was genuinely troubled by symptoms in her shoulder. It was submitted that since Dr Gliksman’s examination, the plaintiff had erroneously convinced herself that she had suffered a shoulder injury. Alternatively, Dr Gliksman had identified causally unrelated, low level shoulder pain which the plaintiff had associated with her fall. During his examination in February 2012 of her right shoulder, Dr Gliksman had found a normal range of movement.

147. From 12 November 2012 until 25 June 2014, the plaintiff had continued attending upon her local medical officer without any further complaint in respect of her wrist or shoulder. On 30 July 2014, some three and a half years after the accident, the plaintiff did complain of an injury to her wrist and her right shoulder at the same time to her local medical officer. However, from that date until recently, the plaintiff made no complaint of any problem to her wrist and shoulder to her GP. At no time did the plaintiff seek a referral back to Dr Brindley, who she held in high esteem. It was submitted that the court would not be satisfied that her condition could be deteriorating in the manner alleged by her over a period of five years without it even occurring to her to have a referral back to Dr Brindley.

148. It was submitted that Dr Harvey is eminently more qualified than Dr Gliksman to opine on matters of diagnosis and prognosis of injuries to the upper limb. Dr Harvey was a very experienced orthopaedic surgeon with vast experience in hand surgery. Dr Gliksman, however, was an occupational physician with no form of specialised knowledge of the hand/wrist/arm/shoulder. It was clear from the evidence that Dr Gliksman was not able to provide any plausible explanation as to how an un-displaced fracture of the distal radius could, many years later, be causative of the symptoms now complained of. Dr Gliksman was wrong in opining that the post-traumatic degenerative change suffered by the plaintiff was caused by a fracture which likely involved an articular surface. Dr Harvey, on the other hand, was correct in stating that there was absolutely no evidence of the fracture affecting the articular surface of the bone. As the court would find that the plaintiff had suffered a very minor fracture of the distal radius which had fully healed, there was no organic reason for the plaintiff to suffer degeneration at or around the fracture site, or to find that the plaintiff’s alleged ongoing symptomology in the right arm is, in any way, related to the accident.

149. Learned counsel for the defendant submitted that the court would not find the plaintiff suffered a carpal tunnel syndrome caused by any injury she received in her fall. The court would prefer the evidence of Dr Harvey to the effect that the plaintiff did not suffer a developing right carpal tunnel syndrome. Dr Gliksman had not asked the plaintiff about the classic signs of such a syndrome and the nerve conduction studies did not support such a diagnosis. The court would accept that the spontaneous development of carpal tunnel syndrome in females of this age group is very common.

150. The defendant therefore advocated the following awards of damages:

Non-economic loss (agreed)	$30,000.00
Past treatment expenses	$538.00
Total	$30,538.00

151. The defendant submitted that the court would not find that the plaintiff had established any loss of earning capacity as a result of her injury. The court would not accept Dr Gliksman’s opinion that her retirement would be required in approximately 10 years’ time, and that within the next five years, she would require part-time duties rather than full-time duties, due to the deteriorating condition affecting her right wrist.

152. It was submitted that the plaintiff was a high achieving, high earning professional, who suffered complaints which were mild in nature. With respect to the shoulder, those complaints were intermittent. Further, the plaintiff had, in five and a half years since the accident, not had any treatment for her hand, wrist or shoulder.

153. It was submitted that if there was to be any finding of loss of earning capacity, there were obvious vicissitudes which are likely to have caused it. For example, she had suffered a compound Potts fracture in 1999 and still suffered ongoing problems with crouching and wearing of high heels. She also suffered hip problems and had had injections into her hip. The defendant submitted that it was more likely that the plaintiff would have retired at a significantly earlier age than age 70 years, and, prior to that, she would have sought less demanding or part-time work. Given those assumptions, the defendant submitted that the plaintiff had not proved, on the balance of probabilities, that she was entitled to any award for economic loss.

154. In respect of domestic assistance, it was common ground that the plaintiff did not qualify for an award of past domestic assistance. With respect to future domestic assistance, the plaintiff relied on the evidence of Dr Gliksman and also evidence given by her daughter, Ms Stephanie Jones. It was submitted that Ms Jones’ contribution was that of a “loving and devoted daughter, eager to do her bit around the house”. It was submitted therefore that the plaintiff had not discharged her onus of proof as to any entitlement to damages for domestic assistance causally related to the accident.

155. Finally, it was submitted there should be no allowance for future treatment expenses, as the plaintiff had sought virtually no treatment in the past five and half years in respect of her injuries, and it is highly unlikely she will have any future treatment for her injuries.

Determination – assessment of damages

156. Damages are to be assessed pursuant to Chapter 3 of the CLA (Qld). Notwithstanding that the parties have agreed on damages for non-economic loss, or general damages, the onus of proof is on the plaintiff to establish on the balance of probabilities that the injuries claimed by her were caused by the defendant’s breach of its duty of care. I am satisfied on the evidence the plaintiff suffered an un-displaced fracture of the distal radius. I am also satisfied, on the balance of probabilities, that the mechanism of injury was such that the force exerted on the plaintiff’s right hand, as it was extended to break her fall, extended through her right arm to the right shoulder. Dr Harvey agreed with that mechanism of injury. I accept the evidence of the plaintiff that she became aware of restriction of movement in her shoulder within some four months of the accident. I accept her explanation for not seeking medical treatment in relation to it. She had been under the care of Dr Brindley, who she regarded highly. His prognosis was that she would make a satisfactory recovery.

157. I am not satisfied, on the balance of probabilities, that the plaintiff has suffered a carpal tunnel syndrome, or that that syndrome is causally related to the fall that the plaintiff suffered in August 2010. I prefer the evidence of Dr Harvey, an orthopaedic surgeon with vast experience in hand surgery, to the opinions proffered by Dr Gliksman on this issue. I accept that there can be many causes for a person of the plaintiff’s age and gender to develop carpal tunnel syndrome, particularly in a person required to extensively use a keyboard during her work. However, the evidence upon which the plaintiff relies, namely, the suspicion of Dr Gliksman, his recommendation for nerve conduction studies, and the result of those studies themselves, do not causally relate any developing condition of carpal tunnel syndrome to the plaintiff’s frall. I accept Dr Harvey’s evidence that there were no classic signs present indicating such a syndrome, nor was it confirmed by the nerve conduction studies.

158. Section 55 of the CLA (Qld) provides as follows:

“55 When earnings cannot be precisely calculated

(1) This section applies if a court considering making an award of damages for loss of earnings but are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss, having regard to the persons’ age, work history, actual loss of earnings, any permanent impairment, and other relevant matters.

(3) If the court awards damages the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

(4) The limitation mentioned in s 54(2) applies to an award of damages under this section.”

159. In determining the assumptions on which an award for future loss is based and the methodology to be used, I note the approach taken by Keane JA (with whom Williams JA and Atkinson J agreed) in Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211 as relied on by counsel for the plaintiff. His Honour there relied on the High Court’s decision in Malec v J C Hutton Pty Ltd(No 2) (1990) 169 CLR 638, in determining its assessment of future events.

160. In determining the plaintiff’s diminished earning capacity for the future, I make the following assumptions:

1. That the plaintiff has been highly successful in her chosen field as a nurse manager and holds a position of some authority in the health system.

2. At age 55, she has some limited scope for further advancement.

3. The plaintiff has no doubt developed work skills which are transportable to other positions if she was to seek them out.

4. It is likely that the plaintiff will suffer a further deterioration of the degenerative condition in her right wrist which will limit her capacity to carry out properly the duties of her current position. For this reason alone, the plaintiff’s injuries are, or may be, productive of financial loss, and therefore compensable – see Medlin v State Government Insurance Commission (1995) 1825 CLR 1.

5. The likelihood is that but for the injury the plaintiff would have worked to age 70. I am satisfied on the balance of probabilities that she will now be required to retire early, but may work part-time thereafter.

161. I am not persuaded that the arithmetical approach advocated by the plaintiff’s counsel is applicable here. I am not satisfied that the plaintiff will retire at age 62, given her impressive work history. Rather, given her high earning capacity, and based on the assumptions set out above, I assess the plaintiff’s future loss of earning capacity in the sum of $200,000.00 as a lump sum.

161. In addition to that loss, the plaintiff will lose superannuation entitlements which I round out to $25,000.

162. I am satisfied that the plaintiff has proved on the balance of probabilities a need for future paid assistance into the future with heavier household duties. I allow that claim on the basis of three hours per week, but defer it for a period of five years. The calculation is therefore 3 x $44.00 per hour x 855.7 x 796.6 x 0.784, a total of $82,439.00.

163. I also award the plaintiff past economic loss for two days wages of $780.00, and award a lump sum of $5,000.00 for future treatment expenses which will cover visits to the GP and any specialist for advice in respect of her deteriorating condition.

Summary of the award of damages

165. I therefore award the following damages:

Non-economic loss	$30,000.00
Treatment expenses	$810.00
Past wage loss	$780.00
Future economic loss	$200,000.00
Loss of future superannuation benefits	$25,000.00
Future treatment expenses	$5,000.00
Future paid domestic assistance	$82,439.00
Total	$344,029.00

Orders

166. I therefore make the following orders:

1. Verdict and judgment in favour of the plaintiff against the defendant in the sum of $344,029.00.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits are to be returned forthwith.

4. The parties have liberty to apply on 7 days’ notice, by way of Notice of Motion, for any special costs order.

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Amendments

15 August 2016 - Paragraph 163 - Sentence altered to read "The calculation is therefore 3 x $44.00 per hour x 855.7 x 796.6 x 0.784, a total of $82,439.00.

Paragraph 165 - Future paid domestic assistance altered to $82,439.00

Paragraph 166 - Verdict sum is now $344,029.00.

Decision last updated: 15 August 2016