De Pasquale v Viet THAHN Bakery Pty Ltd
[2012] SADC 121
•27 September 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DE PASQUALE & ANOR v VIET THAHN BAKERY PTY LTD
[2012] SADC 121
Judgment of His Honour Judge Costello
27 September 2012
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
DAMAGES - GENERAL PRINCIPLES - GENERAL AND SPECIAL DAMAGES
Plaintiffs' claim for damages for personal injury - first plaintiff, a customer in the defendant's shop injured by slipping and falling on wet shop floor - whether defendant negiligent - Held: defendant negligent - damages assessed as follows:
FIRST PLAINTIFF - Non-Economic Loss - 15 points - $26,110; Past Economic Loss - $38,280. Interest on Past Economic Loss - $4,000; Past Loss of Superannuation - $4,000; Future Economic Loss - $45,000. Future Loss of Superannuation - $4,950; Past Gratuitous Assistance - $12,000; Interest on Past Gratuitous Assistance - $2,000; Future Gratuitous Assistance - $3,000. Future Medical Treatment - $6,500; Special Damages - $10,000. TOTAL: $155,840.00.
SECOND PLAINTIFF - Loss of Consortium - $3,000.
Civil Liability Act 1936, referred to.
Neindof v Junkovic (2005) 222 ALR 641; Modbury Triangle v Anzil (2005) 205 CLR 254; Ragnelli v David Jones (Adelaide) Pty Ltd and Anor (2004) 90 SASR 233; Drotem Pty Ltd v Manning [2000] NSWCA 320; Dibbins v Dibbins (1978) 80 LSJS 165; Medlin v SGIC (1995) 182 CLR 1; Chinner v Panagaris [1997] SASC 6476; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Versace v Messer (1993) 172 LSJS 414, considered.
DE PASQUALE & ANOR v VIET THAHN BAKERY PTY LTD
[2012] SADC 121Nature of Case
This is a claim for damages for personal injuries.
At about 9.00am on 20 July 2007 Mrs De Pasquale slipped and fell on a “puddle” of water whilst attending the defendant’s bakery shop in James Place Adelaide to purchase a bread roll.
She claims damages for physical and psychological injuries resulting in both economic and non-economic loss. Her husband, Mr De Pasquale claims damages for loss of consortium.
The defendant denies liability and asserts that if Mrs De Pasquale slipped and fell she did so outside its premises and in James Place. It also denies that (even if she fell as alleged) she sustained any serious injury as a result.
For the reasons which follow I find in favour of the plaintiffs and I have assessed damages for the first plaintiff in the sum of $155,840.00 and for the second plaintiff in the sum of 3,000.00.
Issues for Determination
The defendant accepts inter alia that on the day in question:
·it was carrying on the business of a bakery from James Place;
·it was an occupier of premises within the meaning of the Civil Liability Act 1936 (“the Act”); and
·the first plaintiff attended at its premises and purchased a bread roll.
The legal and factual issues in dispute and for determination are as follows:
1Did the first plaintiff slip and fall on the day in question?
2If she did fall, what caused her to fall?
3If she did fall, where did she fall, i.e. inside or outside the defendant’s premises?
4If she did fall as she asserts, what is the duty and standard of care owed by the defendant to her?
5Whether the defendant breached its duty of care.
6If the defendant breached its duty of care did the breach cause injury and damage to the first and second plaintiffs?
7The assessment of the plaintiffs’ damages.
Overview of the Evidence
Liability
In addition to the first plaintiff’s evidence on this issue, the plaintiffs called Ms Connie Crawley who accompanied the first plaintiff back to the defendant’s premises later that day following the alleged fall and spoke to one of the defendant’s shop assistants. The defendant called two witnesses, both shop assistants, Ms Myha Lam who served the first plaintiff in the shop and “heard” her fall and Ms Muoi Lam who although not present at the time of the fall gave evidence as to the general state of the premises in and around the period of the alleged fall.
Damages
On this issue the following witnesses gave evidence:
(a)the plaintiffs;
(b)Dr Munyard, orthopaedic surgeon;
(c)Ms Polymeneas, a psychologist;
(d)Mr Richter, an occupational therapist;
(e)Dr Tri Cao, the first plaintiff’s general practitioner;
(f)Dr Thoo, an occupational physician;
(g)Ms Richardson, Human Relations Manager at the first plaintiff’s former place of employment;
(h)Mr Ridings, Mrs De Pasquale’s work supervisor at the time of the accident;
(i)Mr Roberts, physiotherapist;
(j)Dr Kutlaca, psychiatrist;
(k)Mr Paul de Pasquale, the plaintiffs’ son;
(l)Ms Tiggeman, psychologist; and
(m)Dr Eriksen, general surgeon.
In addition to this oral evidence, the Court received two Books of Reports[1] containing medical reports from the medical experts who gave oral evidence and some who did not.
[1] Exhibit P5 - Plaintiffs' Book of Medical Evidence; D20 - Defendant's Book of Medical Documents.
The Hearing
The expert “medical” practitioners were all impressive in the manner in which they gave their evidence and in the concessions they were prepared to make. Although there was a substantial area of agreement as to their diagnosis and prognosis, some were in sharp disagreement with respect to the causes of the first plaintiff’s shoulder injury and the existence of any psychological injury. I will deal specifically with these areas of disagreement later.
I was also impressed with Mr Ridings, one of the first plaintiff’s supervisors who gave his evidence as to his observations of the plaintiff at work in a candid and forthright manner as I was with Ms Richardson who in 2008 took over the role of managing the first plaintiff’s absences from work for medical treatment.
Although Ms Crawley gave evidence in English it was apparent to me that English was not her first language. Despite her difficulties with English I was nevertheless satisfied that she was a witness of truth. Although the compass of her evidence was quite narrow she was firm on the important parts of her evidence namely the weather on the day in question, the existence of water on the shop floor and the position of a skid mark inside the shop.
The two shop assistants who gave evidence on behalf of the defendant did so via a Cantonese interpreter. While I do not believe that either witness was being deliberately untruthful I gained the impression that when they insisted that the first plaintiff’s fall took place outside the shop (despite neither of them having actually witnessed the fall) they were trying to put a “favourable gloss” on the incident in order to assist the shop owner.
Finally, with respect to the plaintiffs and their son, I formed generally favourable impressions although with respect to both plaintiffs there were occasions, particularly on the issue of the first plaintiff’s level of disability, where they were prone to exaggeration.
Background Facts
The first plaintiff was born in Adelaide on the 25th of August 1969. The second plaintiff was born on the 7th November 1965.
Mrs De Pasquale completed part of her Year 10 schooling before leaving to take up work as an assistant in a fruit and vegetable shop. At the age of 17 she married the second plaintiff. They have one child, a married son, aged 23 who was actually married during the course of the hearing before me.
After her marriage Mrs De Pasquale commenced working in her husband’s family business (being a wholesaling nut/confectionary business). When her son was born she ceased that work until he went to kindergarten after which she returned to part-time work in the fruit and vegetable shop.
Around 1999 she did a make-up/cosmetic course after which she commenced work for a company called Trimex as a counter manager for a “fragrance house” operating within the National Pharmacies store in Gawler Place in the City. She did this work until around 2006 when she took up a position as a pharmacy assistant working for the National Pharmacies (at the Gawler Place store) in their fragrance, skincare/cosmetics section. Although Mrs De Pasquale described herself as the “second-in-charge”, Ms Richardson indicated that this was more of an informal title such that, in the absence of the supervisor, she would be the person to “provide direction”.[2]
[2] Transcript p 489.
She continued working in that capacity until the day of the accident. I observe at this point that although she said that she “had a passion for my work”[3] and that she was in generally good health,[4] employment records, tendered by the plaintiffs,[5] indicate that in the year and a half prior to the accident she had used her entire sick leave entitlement in addition to using part of her annual leave as sick leave as well as some leave without pay.
[3] Transcript p 72 and 73.
[4] Transcript p 25.
[5] Exhibit P16 - Letter from National Pharmacy together with Annexures dated 13.05.2010.
The Accident
On the day of the accident the weather was inclement. Meteorological records taken in nearby Kent Town reveal periods of consistent rainfall during the early hours of the morning through until around 9.30am.[6]
[6] Exhibit P18 - Extract from the Bureau of Meterology dated 17.07.2007.
Prior to commencing work around 9.00am Mrs De Pasquale walked through City Cross to the defendant’s premises. She said (and I accept) that it was raining at this time. She walked into the shop and selected a Vietnamese roll from a display case situated in the middle of the shop. After paying for the roll she proceeded to walk out of the shop. She said that as she did (and prior to exiting the shop) she slipped on the floor.
She indicated, on a photograph depicting the current layout of the premises (which layout was, for practical purposes, the same as it was on the day of the accident), that she slipped at a position on the floor inside the shop which I estimate to be a couple of feet from the entrance.[7]
[7] Exhibit P1 - Bundle of 4 Photographs Depicting General Layout of Defendant's Premises - Photograph No.1.
She told the Court that after she got to her feet she observed there to be a small “puddle” of water in the position where she slipped.[8] After getting to her feet she recalls the shop assistant asking her whether she was “alright” to which she replied with words to the effect:[9]
You really need to mop this up, clean this up because someone is going to seriously hurt themselves.
[8] Transcript p 32.
[9] Transcript p 34.
Although the photographs depict a mat on the floor she says that there was no mat on the floor at the time of her fall.
The defendant called the shop assistant, Ms Myha Lam who served Mrs De Pasquale. She said that although she did not see Mrs De Pasquale fall she heard something which caused her to look in the direction of James Place.[10] She said she saw her “getting up”.[11] She identified this position (on a photograph depicting the shop and James Place) as a position outside the shop and in James Place.[12] She said that she asked her whether she was alright but that Mrs De Pasquale simply hurried away without responding.
[10] Transcript p 513.
[11] Transcript p 513.
[12] Exhibit P1 - Bundle of 4 Photographs Depicting General Layout of Defendant's Premises; Transcript p 513.
When she fell Mrs De Pasquale said that she landed on her right side and stiffened her neck to prevent her head hitting the ground. On reaching work she said that she was in pain and exhibiting obvious signs of distress. At that time she was experiencing pain in the top of her right leg and lower back.
After recuperating at her workplace for approximately one and half hours she returned to the bakery. She did so on the advice of Mr Ridings who said that it was appropriate (and “fair to both sides”) to inform the proprietor in circumstances where she was likely to miss work because of the injuries she sustained.[13] It was agreed that she should return to the bakery in the company of a work colleague, Ms Crawley because she spoke Cantonese.
[13] Transcript pp 546-547.
Ms Crawley told the Court that she accompanied the first plaintiff in order to speak to the shop assistants in a language they might understand.[14] Whilst at the defendant’s premises the first plaintiff pointed out to her a skid mark about 8 inches long[15] (on the floor inside the shop) as the position where she had slipped and fallen.[16]
[14] Transcript p 384.
[15] Transcript p 396.
[16] Exhibit P10 - Bundle of Photographs; Transcript p 387.
Ms Crawley said that it was wet on the floor in the area of the skid mark and that the wet state of the floor was consistent with it having occurred as a result of drippings from umbrellas.[17] She was unable to recall seeing a mat on the floor in the shop on that day.[18] Although she conversed with the shop assistants she was unable to recall what was said. Finally, she said that the floor surface where the skid mark was situated was not covered by any mat.[19]
[17] Transcript p 388.
[18] Transcript p 390.
[19] Transcript p 399.
Post Accident – Medical Condition
After leaving the bakery for the second time the first plaintiff consulted a GP complaining of low back pain and nausea. She had a few days off before returning to work the following week. She next consulted a GP some 6 days after the accident at which time she complained of pain in her lower back and in the neck on the right side.
Dr Tri Cao who has been her treating doctor since the accident reported in November 2007 that since the fall she complained of migraine headaches and ongoing neck and back pain.[20] In November 2007 she also reported her as complaining of pain in her back and shoulder.
[20] Exhibit P5 - Book of Medical Evidence p 1.
In January 2008 she was seen by Dr Ormandy who concluded that she had strained her neck and lower back in the fall.[21] By March 2009 he concluded that she was (in physical terms) able to carry out her pre-accident duties.[22]
[21] Exhibit P5 - Book of Medical Evidence p 6.
[22] Exhibit P5 - Book of Medical Evidence p 12.
In April 2008 she was assessed by Ms Tiggeman, a psychologist, as having a mild reactive depression.[23] In late 2008 Ms Tiggeman reported that her psychological condition had stabilised although she had become more anxious as a result of feelings of being discriminated against by a new supervisor at her work.[24] I will refer to this factor a little later.
[23] Exhibit P5 - Book of Medical Evidence p 49.
[24] Exhibit P5 - Book of Medical Evidence p 54.
In January 2009 she was assessed by Dr Munyard who concluded that she had suffered soft tissue injuries to her neck and back which were consistent with the fall she described as well as some “psychological” problems which he said were also related to the fall.[25]
[25] Exhibit P5 - Book of Medical Evidence p 15.
In 2010 Dr Munyard assessed her as having a 10% disability of the lumbar spine, 7.5% disability of the cervical spine and a 10% disability of her right shoulder.[26] In his evidence Dr Munyard concluded that the problems with her shoulder were probably explicable in terms of referred pain from her neck.[27] He reiterated that there were still psychological problems at play and considered that she was fit only for lighter types of employment avoiding heaving lifting (above 4-5 kgs) pulling, pushing and overhead work.[28]
[26] Exhibit P5 - Book of Medical Evidence p 22.
[27] Transcript p 197.
[28] Transcript p 200.
Dr Thoo saw her on a number of occasions in mid to late 2009. He concluded that she had sustained soft tissue injuries to her cervical and thoracic spine together with myofascial pain affecting her right shoulder. In his opinion she was best treated with a multidisciplinary pain management program. In his evidence and based on the assumption that the onset of her shoulder complaint commenced months rather than weeks after the fall, he did not relate her shoulder complaint to the accident.[29]
[29] Transcript p 470.
Throughout 2009 she was treated by Ms Polymeneas who in November 2009 concluded that she was experiencing a chronic pain condition,[30] with an adjustment disorder, moderate depression and anxiety. She too considered that Mrs De Pasquale would benefit from a pain management program. She also felt that her condition had been exacerbated by “the way her manager had dealt with her limitations”.[31] Her prognosis for the first plaintiff was guardedly optimistic provided she undertook the pain management program but that regardless she would be unlikely to return to full-time employment.[32]
[30] A condition characterised by a long term pain experience with treatment requiring re-training of the neural pathways in conjunction with a physical fitness regime to eliminate an individual's pain experience - T pp 344-348.
[31] Exhibit P5 - Book of Medical Evidence p 62.
[32] Transcript pp 321-322.
Mr Richter carried out an Activities of Daily Living Assessment at Mrs De Pasquale’s home in December 2010. He concluded that, with some limitations (e.g. hanging out washing, lifting heaving shopping articles), she was capable of performing the bulk of her household duties. He recommended the purchase of some labour saving equipment and services to alleviate her workload.[33]
[33] Exhibit P5 - Book of Medical Evidence pp 42-43.
In September 2008 she was examined on behalf of the defendant by Mr Lewis who concluded that she had suffered soft tissue injuries to her neck and back in the fall but that her prognosis for a return to normal work was good.[34]
[34] Exhibit D20 - Book of Medical Reports p 8.
In October 2009 Dr Eriksen saw her and diagnosed a sprain injury to cervical and lumbar spines as a result of the fall. In his view it was unlikely, given the significant time gap between the fall and symptoms in the shoulder, for the fall to have resulted in a significant shoulder injury.[35] In February 2012 he concluded she was (from a physical point of view) fit to work in her pre-injury employment then and in the future.[36]
[35] Exhibit D20 - Book of Medical Reports p 21.
[36] Exhibit D20 - Book of Medical Reports p 50.
In April 2012 she was assessed by Dr Kutlaca. He concluded that she was not suffering from a psychological disorder be it a pain disorder or a depressive disorder.[37]
[37] Exhibit D20 - Book of Medical Reports p 64.
The First Plaintiff’s Personal and Employment History Post Accident
After leaving work on the day of the accident Mrs De Pasquale remained off work for the next few days before returning to work the following week.
She was able to resume her normal duties in the cosmetic/fragrance section but she did require assistance with things like lifting some of the heavier boxes (over 5 kgs) and she did avoid cleaning shelves at levels which required her to stand on a footstool.[38]
[38] Transcript pp 180 and 181.
She was treated over the course of the next 12 months by her general practitioner, Dr Cao and her physiotherapist Mr Roberts. During this period she was permitted to attend appointments (even during work hours) by an understanding supervisor, Mr Ridings and generally to “pace herself” at work.
Around June 2008 Mr Ridings was replaced by a new manager, Ms Ashworth who was not as understanding as Mr Ridings. Ms Ashworth adopted the attitude of “it didn’t happen at work and so we will not accommodate” your absences from work for treatment.[39]
[39] Transcript pp 215 and 217.
Mrs De Pasquale did not feel supported or believed, and gradually became more anxious, de-motivated and depressed. Her general mood deteriorated to the point where the Human Relations Manager, Ms Richardson became directly involved in the day to day decisions concerning her time off and the liaison with Mrs De Pasquale’s medical practitioners. In March 2009, in conjunction with her medical advisors, National Pharmacies determined to reduce her hours to 30 hours per week for the next 3 months thereby enabling her to attend for physiotherapy treatment and to further moderate her workload. By June 2009 she was, in the view of Mr Roberts, making some improvement.[40]
[40] Exhibit P5 - Book of Medical Evidence p 79.
Despite her improvement Mrs De Pasquale continued to complain of neck and shoulder pain. In July 2009 Dr Cao organised some CT scans which revealed some disc bulging in the cervical and dorsal spine. Dr Cao recommended that she take a month off work to focus on her treatment.[41]
[41] Exhibit D13 - Montague Farm Medical Centre Notes.
I pause to observe here that none of the physical doctors related these radiological findings to the fall.[42] Subsequent to being given time off by Dr Cao in July of 2009 Mrs De Pasquale did not return to work. Between July 2009 and mid 2010 she was provided with medical certificates to support her absences by Dr Cao. In June of 2010 she was terminated by her employer.
[42] Exhibit D20 - Book of Medical Reports p 22; Exhibit P5 - Book of Medical Evidence pp 25-26; Transcript pp 197 and 198; Transcript p 470.
Between then and the time of trial she has been unemployed save for work packing confectionary and nuts in her brother-in-law’s business. She did this work for about 4 hours a day for 3 days per week over a period of some 3 months in 2011. She told me that she was forced to stop this work after that time due to pain in her arm and shoulder.[43]
[43] Transcript p 50.
She was however able in late 2011 and early 2012 to assist a girlfriend on a casual basis in her hairdressing salon doing things like sweeping floors, washing bowls and making coffee. She did this work sporadically and for perhaps 1‑2 hours per day.[44]
[44] Transcript pp 50-51.
At home prior to the fall she completed all her household chores with little help from her husband and son. Since the fall she has needed continual assistance with things like vacuuming, hanging out washing, bathroom cleaning and carrying heavy shopping items.[45]
[45] Transcript pp 56-59.
Mr De Pasquale estimated that subsequent to her fall these household chores occupied him for perhaps two to three hours per week[46] and that the level of assistance which he has needed to provide has remained constant from between six to twelve months after the accident until the present time.
[46] Transcript p 641.
Paul De Pasquale said that from about six months after her fall until he left home in May 2012 he was providing assistance around the house (both inside and out, the latter to relieve his father who was doing more chores inside the house) at a level of one to one and a half hours per week. Both said that they were providing this level of assistance because Mrs De Pasquale was constantly complaining of pain in her shoulder, hip and back.
Until a year or so ago she also had assistance from her aunt, Rosa with general housework.
Mrs De Pasquale feels that her condition is generally stabilised. She wants to return to paid employment, perhaps in the area of a fragrance/cosmetics outlet but doubts that she would be capable of doing work other than part-time.
In terms of further treatment she is anxious to undergo a pain management treatment course but in her present straitened financial circumstances cannot afford it.
Findings on Liability Issues
In the paragraphs that follow I set out my findings on the liability issues which fall for determination.
1. Did the first plaintiff fall on the day in question?
I am satisfied that on the day in question (in the hours leading up to her attendance at the shop) it had been raining on and off[47] and that the city streets, including James Place, were wet.[48]
[47] Transcript pp 28-29, 387, 399; Exhibit P18 - Extract from Bureau of Meterology 17 July 2007.
[48] Transcript p 79.
I am also satisfied that after purchasing her roll Mrs De Pasquale slipped and fell as she attempted to leave the defendant’s shop.
2. What caused the first plaintiff to fall?
I am satisfied that at the time Mrs De Pasquale entered the shop parts of the shop floor were wet.[49] I am also satisfied that the area where she fell was covered with water which Mrs De Pasquale described as “puddle of water”.[50] I also accept that as she slipped her shoe left a skid mark on the floor about 8 inches long.[51] I accept the evidence of both the plaintiff and Ms Crawley that at the point where she fell, the shop floor was not covered with a mat.[52]
[49] Transcript pp 32, 33, 38, 95, 96, 387, 388, 391.
[50] Transcript pp 32, 95 and 96.
[51] Transcript p 396.
[52] Transcript p 38 and 399.
Mrs De Pasquale was adamant that there was no mat on the floor on the day she fell.[53] While it may be fairly open to conjecture as to whether she would have taken particular note of the presence or otherwise of a mat at the time of her actual fall she returned an hour or so later in circumstances where she was specifically looking at the floor and drawing Ms Crawley’s attention to the skid mark on the floor.[54]
[53] Transcript pp 30, 38 and 90.
[54] Transcript p 395.
Furthermore she told the Court that within a short time after the accident (being weeks rather than months) she observed there to be a mat or a couple of mats on the floor.[55]
[55] Transcript pp 39, 40 and 89-90.
As against this, Ms Myha Lam said that there was a mat. She also said that there was no water on the floor of the shop and that James Place was dry.[56] She maintained this position despite not moving out from behind the counter to examine the state of the floor following the fall.[57] I reject both of these statements and her evidence as to the presence of a mat.
[56] Transcript pp 523 and 526.
[57] Transcript p 526.
The witness Muoi Lam asserted that Mrs De Pasquale fell outside the shop despite the fact that she was not present and did not see the incident.[58] As to the mat she said that it was “always there”[59] and was there when she started working at the shop back in the 1990’s.
[58] Transcript p 579.
[59] Transcript p 574.
I reject this evidence as well. As I have already said, I am satisfied that, in general terms, the evidence of both these witnesses was directed towards putting a “favourable gloss” on the condition of the defendant’s premises and where their evidence differs from that of the first plaintiff and Ms Crawley I prefer the latter.
As a result I am satisfied that the reason for her fall was the presence of a “puddle” of water on an otherwise uncovered vinyl floor which rendered the floor slippery.
3. Where did the first plaintiff fall?
It follows from the above that I am satisfied that she fell inside the shop and not in James Place.
Ms Myah Lam accepted that she did not actually see Mrs De Pasquale fall. Her attention was drawn only by a noise which may have been of the fall. In any event, by the time she actually looked up Mrs De Pasquale was getting to her feet. In so far as she said that, when she saw Mrs De Pasquale, she was in James Place it is not necessarily inconsistent with her slipping in the shop, composing herself, getting to her feet and when so doing moving the very short distance into James Place. Alternatively she may simply be mistaken as to where Mrs De Pasquale was when she turned to see her. In any event, I am quite satisfied by the evidence of Mrs De Pasquale, on this issue, supported as it is by the subsequent observations of Ms Crawley.
Duty of Care
The starting point in relation to this issue is the Civil Liability Act 1936 (“the Act”) and in particular s 20(1)[60] which dictates that:
The liability of the occupier of premises for injury, damages or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
[60] Neindorf v Junkovic (2005) 222 ALR 641 per Kirby J at para 41.
That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt.[61] Accordingly I am satisfied that the defendant owed a duty of care to customers in the shop for the legitimate purposes of purchasing its goods. This included Mrs De Pasquale.
[61] Modbury Triangle v Anzil (2005) 205 CLR 254 per Gleeson CJ at para 17.
Standard of Care
In determining the standard of care to be exercised by the defendant, s 20(2) of the Act obliges the Court to take into account the following matters:
20—Occupier's duty of care
…
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account—
(a) the nature and extent of the premises; and
(b) the nature and extent of the danger arising from the state or condition of the premises; and
(c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of—
(i) the danger; and
(ii) the entry of persons onto the premises; and
(f) the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g) the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h) any other matter that the court thinks relevant.
The nature and extent of the premises
The premises comprised a small, rectangular-shaped shopping area with a single access-egress point for members of the public. Goods sold comprised foodstuffs for consumption off the premises. Behind the customer shopping area lay a display case and serving area.
The nature and extent of the danger
The area where Mrs De Pasquale fell was dangerous. The surface of the floor was vinyl tiling with a “puddle” of water situated at a point on the floor directly between the entrance and the position where customers stood to be served. The passage of customers in and out of the shop on a wet and rainy day ensured that water would continue to remain on the floor. I am satisfied that the combination of a “puddle” of water on a vinyl floor created a slippery floor which posed a considerable risk of injury for customers entering or exiting the shop.
The circumstances in which the person injured became exposed to the danger
Mrs De Pasquale entered the store with the intention of purchasing a roll and leaving. There is no suggestion that she did so in other than an orthodox manner or that the footwear she was wearing was other than appropriate.[62] On attempting to leave she was confronted by the presence of water on a patch of the floor which water she did not see and with respect to which she did not fail to take reasonable steps to avoid.
[62] Transcript p 77.
The age of the person and her ability to appreciate the danger
Mrs De Pasquale was a relatively young woman in generally good health with the requisite ability to appreciate any obvious risks of danger. The fact that the “puddle” of water on the floor was colourless understandably affected her ability to appreciate the inherently dangerous state of the floor.
The extent to which the occupier was aware or ought to have been aware of the danger and the entry of persons on the premises
There is no evidence to suggest that the defendant through its employees was actually aware of the slippery nature of the floor. However it had been raining during the hours leading up to the incident; James Place was wet and the customers patronising the shop were likely to bring water in with them. The defendant, through its employees, should have been aware of the potential for the floor to become wet and slippery given the weather and the passage of customers.
The extent to which it would have been reasonable and practicable for the defendant to take measures to eliminate, reduce or warn against the danger
I am satisfied that there were relatively simple measures available to the defendant to eliminate, reduce or warn against the danger.
It was both reasonable and practicable for the defendant to have employed a floor-length, non-slip mat, running from the entrance to the shop to the far end of the display area to reduce if not eliminate the danger. It could also have posted warning signs at the entrance to or inside the shop of the “watch your step”, or “floor slippery when wet” variety.
I am also satisfied that an adequate cleaning/inspection regime could have reduced the risk. Ms Myha Lam said there were no regular checks of the floor during the day and that it was only cleaned after lunch.[63] A system of regular mopping or drying on wet days could have reduced the danger.
[63] Transcript pp 527 and 569.
Other Relevant Matters
In circumstances where the defendant is an occupier of commercial premises the Courts have taken into account the degree of control which the occupier had over the premises.[64] In these circumstances the defendant had a high degree of control.
[64] Ragnelli v David Jones (Adelaide) Pty Ltd and Anor (2004) 90 SASR 233.
It is appropriate to conclude that the defendant owed Mrs De Pasquale a duty of care which required, inter alia, that it cover the floor, at least on days when the weather was wet, with a non-slip mat and on such days, make regular inspections of the floor and/or install warning signs at or near the entrance.
Breach of Duty of Care
I have found that Mrs De Pasquale slipped and fell on a water puddle on the defendant’s floor while exiting the shop and that the condition of the floor presented a significant risk for customers exiting the shop.
Reasonable, practical and economic measures were available to the defendant to obviate the risk of injury. In commercial premises there is an obligation to pay attention to accident prevention.[65] I have no doubt that the defendant breached its duty of care by not employing the use of a non-slip mat. The foreseeability of risk of injury to a person slipping and falling in circumstances such as these was not insignificant and a reasonable person in the defendant’s position should have employed the use of a mat, regular checks and/or warning signs.
[65] Drotem Pty Ltd v Manning [2000] NSWCA 320 para 36.
In the context of s 32 of the Act, in considering whether it was reasonable to employ these precautionary measures, I have taken into account the following:
·the probability of a person slipping and falling was quite high;
·it was likely that a person could sustain a significant injury in the fall;
·there was no burden to the defendant at least in purchasing a non-slip mat or warning signs; and
·the defendant’s shop was providing a worthwhile service to the public.
I have no doubt in the circumstances that the defendant was in breach of its duty to Mrs De Pasquale.
Causation
The Act deals with the issue of causation in s 34 as follows:
Division 2—Causation
34—General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
I am satisfied that the scope of the defendant’s liability extends to the harm suffered by the plaintiffs.
In Strong v Woolworths Ltd[66] the High Court said:[67]
The determination of factual causation under [s 34(1)(a)] is a statutory statement of the “but for” test of causation: the plaintiff could not have suffered the particular harm but for the defendant’s negligence…
… factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm.
[66] [2012] HCA 5.
[67] [2012] HCA 5 paras 18 and 20.
I am quite satisfied, in these circumstances, that but for the defendant’s failure to employ a non-slip mat the plaintiff would not have slipped and fallen. I am also satisfied that if the defendant had displayed warning signs at or near the entrance, Mrs De Pasquale would have been alerted to the state of the floor and thus avoided a fall. I am also satisfied that a regular check of the floor for water and where necessary mopping or drying of the floor would have prevented the floor from becoming or remaining wet and slippery.
In short I am satisfied that the defendant’s negligence caused Mrs De Pasquale to fall.
Contributory Negligence
The defendant’s claim that Mrs De Pasquale was contributorily negligent was abandoned by the defendant in final submissions. There was no evidence to support such a finding.
Assessment of Damages
In the paragraphs that follow I set out some general findings on this issue together with my assessments in relation to the various heads of damage.
There is no serious dispute that Mrs De Pasquale suffered soft tissue injuries to her neck and back. This much is common ground among the medical practitioners.
The real areas of dispute (from a physical point of view) are the severity of these injuries, the longevity of any disability flowing from them and whether or not she sustained any injury to her shoulder as a result of the fall.
There is also a dispute as to whether or not she sustained any psychological injury or a mixture of a physical/psychological injury in the fall.
Injuries to the Neck and Back
In his evidence Dr Eriksen concluded that she sustained a chronic strain/spraining injury of the cervical and lumbar spine as a result of the fall. In his report of October 2009,[68] although he accepted her symptoms were genuine he could find no assessable impairment.
[68] Exhibit D20 - Book of Medical Reports pp 21-22.
In his evidence Dr Munyard concluded, as I have previously noted, that she had suffered soft tissue injuries to her neck and back consistent with the fall.[69] In 2010 he assessed her as having a 10% disability of the lumbar spine and a 7.5% disability of the cervical spine.[70] Both Dr Eriksen and Dr Munyard mentioned that there were non-physical factors in her presentation which I will refer to later.
[69] Exhibit P5 - Book of Medical Evidence p 15.
[70] Exhibit P5 - Book of Medical Evidence p 22.
In so far as there appears to be a disagreement between the two I have had regard to the observations of Bright J in Dibbins v Dibbins where His Honour said:[71]
This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognise this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient’s account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.
[71] (1978) 80 LSJS 165, 165-166.
As I have already indicated I accept the first plaintiff as an honest witness. I have borne in mind that during her evidence she was giving evidence about events which took place, in some respects, up to five years ago. Although there were occasions when I felt that she was prone to exaggerate her complaints of pain and disability, I gained a generally favourable impression of her as being both accurate and genuine in recounting her overall level of complaint.
With that caveat, on the issue of injury to her neck and back I generally prefer the assessment of Dr Munyard. I am satisfied that these injuries were both painful and partially disabling from the time of the accident until the present although in my view the level of that discomfort and disability was reduced from 2010 onwards after she was put off work and then terminated.
The Shoulder Injury
In his evidence Dr Eriksen concluded that Mrs De Pasquale had “developed shoulder symptoms with a significant efflux of time passing since the time of the accident … [and that this efflux of time] made it unlikely that a significant shoulder injury would occur in these circumstances”.[72]
[72] Exhibit D13 - Bundle of Medical Documents p 21.
Dr Thoo, in his oral evidence, agreed with Dr Eriksen and said that the efflux of time between her fall and a complaint of shoulder pain by Mrs De Pasquale made it unlikely that there was any impairment in the right shoulder as a result of the fall.[73]
[73] Transcript p 468.
In his evidence Dr Munyard said that the pain in her shoulder and right arm was probably due to the injury to her neck which then gave her referred pain in the right shoulder.[74] He said that the onset of this pain could take a “considerable time, years in fact”.[75]
[74] Transcript p 197.
[75] Transcript p 208.
The doubts expressed by both Drs Thoo and Eriksen as to the relationship between shoulder pain and the fall lay in the passage of time between the fall and initial complaints of pain in the shoulder. If their assumptions were correct on this issue there would be some force in their opinions.
However, whilst the defendant rightly pointed to the absence of any note of a complaint of shoulder pain in the reports of a number of doctors[76] who saw her in 2008 this was not universally true.
[76] E.g. Exhibit P5 - Report of Dr Ormandy and Exhibit D13 - Report of Dr Lewis.
In March and April of 2008 she saw Ms Tiggeman who reported Mrs De Pasquale as telling her:[77]
In the next week post injury she told me that she had pain in her neck and shoulder and lower back.
[77] Exhibit P5 - Book of Medical Documents p 46.
In cross-examination on this issue of a relationship between pain in her shoulder and the fall she said:[78]
[78] Transcript pp 109-110.
"Q“Can I suggest that it wasn’t until 20 January 2008, some nearly six months after this fall, that you first complained of anything relating to your shoulder.
AWhen I did speak to my doctor about it, I did say that it was from my neck going down, all this area (INDICATES), all this area down here (INDICATES) I did specify that to her and my physio. Maybe I didn’t use the word “shoulder” but I did incline to her that it was that area.
QCan I suggest to you that on 10 January 2008 you didn’t complain about any pain in your shoulder but you complained of pins and needles in your neck and shoulder.
AThat’s correct.
QSo is this the position, that you didn’t have pain in your shoulder, you had pins and needles in your shoulder by 10 January 2008.
AI had pain as well. Like I said, I probably didn’t specify that it was my shoulder but I did tell her that it was from the neck, leading down, all this area.
QCan I suggest that after that consult –
HIS HONOUR
QBy “this area” you’re referring to.
AThis area here (INDICATES), yeah, this way up (INDICATES). I did specify to her it was from my neck going up and behind.
QYou are indicating on top of your shoulder and continuing down to the back side of your right shoulder.
AThat’s correct.
XXN
QCan I suggest that you didn’t complain about pain in the shoulder until 22 February 1999.
ASorry?
QWhat I’m saying is you did mention on 10 January 2008 about pins and needles in your neck and shoulder but I suggest that you didn’t make any complaint about pain in your shoulder until 22 February 1999.
HIS HONOUR 2009.
Q2009, I apologise.
XXN
QDo you agree that it wasn’t until nearly one-and-a-half years after this fall that you complained of pain in the shoulder.
ANo, I don’t agree. Like I said, I may not have specified that it was my shoulder but I did tell the doctor and my physio that it was that area and the pain did worsen and did travel as time went on”.
I accept her evidence that she was experiencing pain in her shoulder from a period of time shortly after the accident and that the absence of any specific reference by those doctors to a complaint of shoulder pain can be explained by the fact that although she was suffering pain in the general area leading from her neck into her shoulder she may have described it as pain in her “neck”.
I also note in this respect the evidence of Mr Roberts who said that notes made by a physiotherapist colleague of his, on 27 July 2007, record that, despite telling his colleague that she was experiencing “neck pain”, the area ascribed to that pain as shaded or “mapped” by the colleague, on a sketch of a human skeleton, depicted an area across the top of both her shoulders.[79]
[79] Transcript p 596.
In summary I am satisfied that the pains and discomfort in her shoulder are related to the fall; were the subject of complaint from an early stage and are probably due to pain being referred from her neck as suggested by Dr Munyard.
Psychological Injury or Physical/Psychological Mix
In his evidence Dr Kutlaca, who admittedly did not see Mrs De Pasquale until April 2012, did not identify her as suffering from any depressive disorder or psychiatrically-based pain disorder. However his sole reason for rejecting the diagnosis of a psychiatrically-based pain disorder was his view that psychological factors did not satisfactorily explain her pain experience. In effect he concluded that she was malingering.[80] In so far as this was his opinion I reject it. In my view the plaintiff was consistent, honest and genuine in her presentation to me, albeit with the tendency to exaggerate which I have previously noted.
[80] Transcript pp 632-633.
Ms Tiggeman who saw her in April assessed her initially as having a mild reactive depression which had stabilized by the end of that year. Ms Polymeneas who saw her during 2009 felt that she was suffering initially from an adjustment disorder. However when giving evidence she said she had “recovered” and no longer needed psychiatric intervention.[81]
[81] Transcript p 346.
Ms Polymeneas considered that her continuing problem was that of a chronic pain condition and that for her to recover she required treatment via a pain management program. A pain management program, she said, would help her to retrain her brain and develop skills to change the way her brain perceives her pain.[82] She acknowledged that the treatment of chronic pain in this way is a relatively new and developing area. As I have already said, Ms Polymeneas was guardedly optimistic about her chances of a recovery. However she felt that she would be unlikely to return to full-time employment.[83]
[82] Exhibit P5 - Book of Medical Documents p 62.
[83] Transcript pp 321-322.
In his evidence Dr Eriksen indicated that his assessment led him to conclude that there were other factors involved in her presentation. He said that he suspected the presence of a “pain condition”.[84] He was aware of the expertise of Ms Polymeneas as a pain practitioner being himself involved in the pain management field. He said that he would defer to her view that Mrs De Pasquale was suffering from a chronic pain condition.[85]
[84] Transcript p 709.
[85] Transcript p 709.
I am satisfied that as well as suffering soft tissue injuries to her neck and back and related shoulder pain, Mrs De Pasquale also developed a psychological injury being a mild reactive depression or adjustment disorder from which she has largely recovered. She has however been left with a chronic pain condition which requires her to undergo a pain management program together with a physical hardening or rehabilitation program. I am further satisfied that with those interventions she will largely recover from the effects of her injuries over the next two years. In this respect I disagree with Ms Polymeneas’ diagnosis in so far as she made no allowance for the exaggeration in the first plaintiff’s presentation.
The other areas of general dispute involve the role played by the supervisor, Ms Ashworth in the first plaintiff’s decision to stop work and the reasonableness of her decision to remain off work from July 2009 until her termination in 2010.
Role of Ms Ashworth
The defendant asserts that the introduction of Ms Ashworth, as Mrs De Pasquale’s supervisor, had a significant impact on her and was in effect the true reason for Mrs De Pasquale’s decision to cease work. It was contended that the involvement and attitude of Ms Ashworth should be treated as a “novus actus interveniens” relieving the defendant of liability for any economic loss from the time she ceased work in mid 2009.
The principles relating to this issue were stated by the High Court in Medlin v SGIC namely:[86]
The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent act or decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. In some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed, e.g. where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.
[86] (1995) 182 CLR 1.
I accept that the attitude of Ms Ashworth did have an effect on Mrs De Pasquale. However I am also satisfied that following Ms Ashworth’s removal from a role in her injury management her condition returned to the level which had existed prior to Ms Ashworth taking over. As such in my view her involvement had nothing to do with Mrs De Pasquale’s decision to stop work.
In any event I am satisfied that the facts and circumstances under consideration here were never capable of constituting a “novus”. This is because the asserted intervening circumstance (the behaviour of Ms Ashworth) was, in my view, a foreseeable consequence of the injuries caused to the first plaintiff.[87]
[87] Chinner v Panagaris [1997] SASC 6476, per Lander J p 12.
Reasonableness of Decision to Stop Work
As I have said the first plaintiff’s decision to stop work had nothing to do with Ms Ashworth. Rather it occurred as a result of the medical advice of her general practitioner, Dr Cao.
In July 2009 because Mrs De Pasquale did not seem to be improving Dr Cao ordered some x-ray investigations of her neck which revealed disc bulging in the neck. This led Dr Cao to issue sickness certificates for a month in late July of 2009. In my view the discovery of the disc bulging confirmed in Mrs De Pasquale’s mind a belief that she had sustained a significant injury in the fall. This was supported by Dr Cao and the medical certificates. Thereafter she remained off work, supported by medical certificates, until her employment was terminated in 2010.
In summary, I find that Ms Ashworth’s attitude did not lead to her decision to stop work. Rather it was due to a genuine but mistaken belief that she had sustained a more significant injury to her neck in the fall. As such I am satisfied that her decision to cease work and remain off work was reasonable.
Against the background of these general findings I now turn to an assessment under the various heads of damage.
Non-Economic Loss
Mrs De Pasquale is entitled to damages under this head as governed by s 52 of the Act. I am satisfied that her ability to lead a normal life was significantly impaired for at least 7 days as required by s 52(1)(a) of the Act.
As a result of the fall Mrs De Pasquale suffered soft tissue injuries to her neck and back with referred pain into the shoulder from her neck, a psychological injury encompassed by reactive depression and/or adjustment disorder together with a chronic pain condition.
These injuries or a combination of them have caused her significant pain and discomfort over the last five years. Although she was able to work, even on a full time basis for a large period, she did so with constant pain and discomfort.
The effects of the soft tissue injuries and any psychiatric condition have abated but the resultant effects of the chronic pain condition continue to cause her pain and discomfort.
Her injuries have restricted her ability to carry out some of the heavier aspects of her household work and have detrimentally impacted upon her enjoyment of life. Having said that, I am satisfied that if she undertakes the recommended pain management program successfully (which I am confident she will do due to her motivation to get her life back in order) she will recover from her injuries over the next two years or so.
In summary she sustained significant injuries which have and will continue to detract from her general enjoyment of life.
In all the circumstances I assign the numerical 15 to her non-economic loss. Her injury having occurred in 2007, her damages under this head of loss amount to $26, 110.00.
Past Loss of Earning Capacity
Under this head the Court’s task is to arrive at a sum which will compensate Mrs De Pasquale for her diminished earning capacity which has been productive of pecuniary loss.[88] Although in this situation a person’s actual loss of earnings has proved to be a useful guide, it is the loss of earning capacity, not loss of earnings which must be measured.[89]
[88] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 5.
[89] Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 658.
In the plaintiff’s case a letter from National Pharmacies was tendered[90] purporting to identify a potential loss of earnings for Mrs De Pasquale assuming that the accident had not intervened and that she had remained in constant employment at her pre-accident hours and rates of pay up until her date of termination. So understood, she would have received some $94,513.53. In fact she was paid only $64,712.84 leaving a shortfall of $29,800.89.
[90] Exhibit P16 - Letter from National Pharmacy together with Annexures dated 13.05.2010.
There is a measure of artificiality about this calculation because it is clear to me from her evidence and that of her general practitioner that other medical conditions intervened which resulted in her having time off. Allied to this is her pre-accident work history which, as I have noted, indicated a relatively high degree of time taken off as sick leave. I am satisfied however that the majority of her loss until the time of her termination was attributable to the injuries sustained in the fall. Doing the best I can and recognising that it is very much “broad axe” I would attribute 75% of her gross loss to the injuries sustained in the fall which represents a gross figure of about $22,340.00.
The period since her termination in 2010 stands in a somewhat different category. I am not persuaded that the level of her incapacity has remained the same. In short I am satisfied that Mrs De Pasquale has exaggerated, although not consciously, the degree to which she is incapacitated.
I note, in this regard that, from a perusal of the Schedule of Medical Expenses[91] she has had almost no medical treatment of any sort since her termination. She gave evidence of working in her brother-in-law’s business between April and June of 2011 although only at a modest rate before being forced by the level of her pain to stop. She also gave evidence of assisting her girlfriend in her salon. I also take into account that, for practical purposes, she was able to hold down a full time job for nearly three years post the accident.
[91] Exhibit P24.
I accept that her decision to stop work was largely due to concerns arising from the radiological findings instigated by Dr Cao and it was thereafter reasonable for her to remain off work under the medical certificate provided by Dr Cao.
On the other hand I am satisfied that by the time of her termination in 2010 the relationship between those x-ray findings and the accident had been explained to Mrs De Pasquale. In short I am satisfied that by that time she was largely back to the state she was in as at June/July 2009, namely with a capacity to hold down the position of a pharmacy assistant for up to 30 hours per week.
If she had continued to be totally incapacitated, from the date of her termination to the present, her gross loss would have been approximately $88,000.00. I would reduce that figure by 75% to represent her loss of earning capacity which gives a gross figure of $22,000.00. I again acknowledge that this is a somewhat “broadbrush” approach but it roughly equates to someone capable of working 30 hours of a 38 hour week which she had demonstrated being able to do up until ceasing work in 2009.
The total gross figure under this head from accident to the present is therefore approximately $44,000.00. Figures provided for her 2010 financial year disclose tax of approximately 13% which if applied to the gross loss which I have identified would equate to some $38,280.00.
She is entitled to interest on this amount. Applying a rate of interest of 7% on $38,200.00 over three years[92] gives a figure of approximately $4,000.00.
[92] I have used three years because the bulk of any loss has come since she ceased work in mid 2009.
Post Loss of Superannuation
She would have been entitled to superannuation payments on the basis of 9% of her gross income which I would round off at $4,000.00.
Future Loss of Earning Capacity
For the reasons already expressed I am satisfied that Mrs De Pasquale is motivated to return to work and that with the recommended pain management program she will recover largely if not totally within the next two years.
In summary, whilst I accept the evidence of Ms Polymeneas as to the appropriate diagnosis I do not share her pessimism or her “guarded optimism” in terms of her prognosis. Having undertaken the pain management and work rehabilitation programs and freed from the stress of a trial, I am satisfied that she will be able to return to the workforce, in the area I understand her to favour, namely working in a beauty salon or the general cosmetics area.
In considering an award under this head I have also had regard to the observation of Perry J in Versace v Messer[93] that persons seeking employment are commonly asked to disclose whether or not they have previously suffered an injury and to give details of it and its consequences. It is a fact of life that persons in that situation even if they are capable of doing the job, in a physical sense, may well be at a disadvantage in securing such a position in the first place.
[93] (1993) 172 LSJS 414 p6.
Awards under this head are notoriously difficult to determine with any degree of precision. Doing the best I can I would allow a figure of $45,000.00.
Future Loss of Superannuation
I accept the submission of counsel for the plaintiffs that it is appropriate to adopt a rate of 11% for net losses which gives a figure of $4,950.00.
Past Gratuitous Assistance
I am satisfied that Mrs De Pasquale is entitled to an award under this head. I accept that in the first three years following the accident it was reasonable to allow assistance from her husband and son (although I attribute little to the latter) of 2 hours per week at a rate of $30 per hour. This equates to a figure during that three year period of approximately $9,000.00. In the two or so years since her termination I would only be prepared to allow one hour per week which equates to around $3,000.00. She is entitled to interest on this figure over five years which is approximately $2,000.00.
Future Gratuitous Assistance
For reasons already expressed I would be prepared to allow her a figure equating to one hour per week over the next two years or $3,000.00.
I am not persuaded that a Pilates membership or any of the other domestic aids referred to by Mr Richter are warranted.
Future Medical Treatment
I am satisfied that the pain management program and the rehabilitation program mentioned by Ms Polymeneas and Mr Roberts are valuable aids to her recovery. I would allow a figure of $6,500.00 under this head.
Special Damages
These are agreed at $10,000.00. No claim is made for interest.
Second Plaintiff’s Claim for Consortium
The second plaintiff makes a claim pursuant to s 65 of the Act for loss of his wife’s consortium. This allows him to recover for the loss or impairment of his wife’s comfort, society and fellowship previously provided to him by her. This recovery must relate only to matters temporal as opposed to matters spiritual and must be capable of estimation in money: Toohey v Hillier (1955) 92 CLR 618. There can be no recovery for suffering distress or depression consequent upon the injury to the First Plaintiff: Andrewartha v Andrewartha (1987) 44 SASR 1.
I am satisfied the accident and its consequent effect on Mrs De Pasquale have robbed Mrs De Pasquale of her comfort, society and fellowship. I am satisfied that prior to the accident she was bright, bubbly, outgoing and active and that post accident, at least for some years, her character and general approach to life changed to his detriment. This has manifested itself in a significantly reduced sexual relationship, her general irritability and depressed mood with the obvious strains on their relationship as a consequence. Under this head I assess damages at $3,000.00.
A summary of the awards is as follows:
First Plaintiff
Non-Economic Loss $26,110.00
Past Economic Loss $38,280.00
Interest on Past Economic Loss $4,000.00
Past Loss of Superannuation $4,000.00
Future Economic Loss $45,000.00
Future Loss of Superannuation $4,950.00
Past Gratuitous Assistance $12,000.00
Interest on Past Gratuitous Assistance $2,000.00
Future Gratuitous Assistance $3,000.00
Future Medical Treatment $6,500.00
Special Damages $10, 000.00$155,840.00
Second Plaintiff
Consortium $3,000.00There will be judgment for the first plaintiff in the sum of $155,840.00 inclusive of interest.
There will be judgment for the second plaintiff in the sum of $3,000.00 inclusive of interest.
I shall hear counsel as to the question of costs and any other orders.
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