El-Kak v Canterbury-Bankstown Council

[2019] NSWDC 768

District Court

New South Wales

Medium Neutral Citation:	El-Kak v Canterbury-Bankstown Council [2019] NSWDC 768
Hearing dates:	20 November 2019, 21 November 2019, 22 November 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Civil
Before:	Weinstein SC DCJ
Decision:	(1) Verdict and judgment for the defendant; (2) The exhibits are to be returned; (3) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; (4) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.
Catchwords:	TORTS - Negligence - Proof of negligence HIGHWAYS - construction, maintenance and repair of footpaths NONFEASANCE – immunity from suit pursuant to statute
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 Roads Act 1993
Cases Cited:	Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Clifton & Ors v Lewis [2012] NSWCA 229 Coleman v Barrett [2004] NSWCA 27 Cupac v Cannone [2015] NSWCA 114 Dell v Dalton (1991) 23 NSWLR 528 Hall v State of New South Wales [2014] NSWCA 154 Majkic v Bonanno [2008] NSWCA 253 Moran v Nominal Defendant [2008] NSWSC 804 Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423 Southgate v Waterford (1990) 21 NSWLR 427 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3 Strong v Woolworths Ltd [2012] HCA 5 Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Category:	Principal judgment
Parties:	Okbale El-Kak (plaintiff) Canterbury-Bankstown Council (defendant)
Representation:	Counsel: Mr J Jobson (Plaintiff) Mr D Hanna (Defendant)     Solicitors: Ms N Husaini (Plaintiff) Ms L Steer (Defendant)
File Number(s):	2019/00063631
Publication restriction:	N/A

Judgment

1. The plaintiff brings a claim for damages for personal injury as a result of a fall sustained on 27 February 2016 on a footpath outside 2-14 Meredith Street in Bankstown, New South Wales. On that date, she was accompanied by her son Abdullah El-Kak who was attending the police station as part of his bail reporting conditions.

2. The plaintiff’s claim in negligence alleges that the defendant was the owner, manager, and controller of a Telstra pit located at 2 – 14 Meredith Street Bankstown in the State of New South Wales. She further alleges that the defendant had a duty of care to ensure that the pit and its surroundings were maintained in such a manner so as not to create a hazard for pedestrians walking in the area including the plaintiff.

3. The plaintiff pleads, at paragraph 4 of the Statement of Claim, that on or about 27 February 2016, at approximately 9:30 am, she was walking down Meredith Street and as she traversed an area of footpath which adjoined the pit, she tripped and fell in a crack/gap which had formed around the pit and the surrounding concrete.

4. In its Defence, the defendant denies that it was the owner, manager, and controller of the pit and denies the duty of care as alleged. It says that it owed a duty of care to the plaintiff in its capacity as the roads authority pursuant to the Roads Act 1993, and subject to section 45 of Civil Liability Act 2002 (the Act). However, it was conceded that the defendant had the care and control of the footpath the subject of the incident, and that the duty owed to the plaintiff was to take reasonable precautions against a risk of harm that might cause foreseeable injury, subject to section 45 and subject to the plaintiff taking reasonable care for her own safety. I accept this as the duty owed to the plaintiff by the defendant.

5. The claim is dismissed for the reasons that follow.

6. The matter falls to be determined pursuant to the provisions of the Act.

7. I acknowledge the assistance of Mr Jobson, counsel for the plaintiff and Mr Hanna, counsel for the defendant.

Facts

8. The essential facts of the case are not controversial. The defendant conceded that it was not in a position to challenge the plaintiff’s version of the occurrence of the accident itself, as no person witnessed the plaintiff’s fall. The plaintiff’s case is that on 27 February 2016, whilst going to the police station with her son, “my shoe or sandal stuck in something on the footpath and I just fell – right on my face. I tried very hard not to fall but I couldn’t”: [T 10.46-48]. Looking at a photograph showing a crack, the plaintiff said at T 13.41-42: “I was going to the police station and my shoe or sandals got stuck in there.” The plaintiff’s footwear was variously described as a thong or sandal, but nothing turns on that description.

9. The evidence of the plaintiff is said to be supported by photographic evidence which became Exhibit 3. I do not know who took this photograph or when it was taken. It is said to depict the crack in which the plaintiff’s sandal got stuck. No measurements were made of this crack. I do not know its length, width, or its depth. I do not know how long it had been there. I am unable to discern from the photograph whether or not there was any tar or other filler in the crack making it smooth between the concrete parts in which it had formed. No attempt was made to compare the crack with regular joins in the pavement. Indeed, I know nothing at all about the crack at or about the time of the incident, and from my observation of the photograph, I can describe it as nothing more than a mere crack in the pavement. It may in fact be indistinguishable from other cracks nearby or from the space between the pavers nearby. Such is the state of the evidence about it, that I can make no findings about its characteristics other than it appears to be a crack in the pavement similar to many other cracks and depressions in the pavement, concrete and pavers near to it.

The Plaintiff as a Witness

10. The plaintiff gave evidence through an interpreter. The relevant parts of her evidence about the incident are set out in paragraph 6 above.

11. As a result of her stumble, the plaintiff said she fell onto her hands, face right knee, right leg and left shoulder. Her son Abdullah also gave evidence that he saw the plaintiff falling and that she fell in this manner (although he said nothing about the crack itself). The defendant submitted that the injuries sustained by the plaintiff were not controversial, but that there was an issue as to what permanent disabilities flow from the incident (to which see below).

12. The plaintiff was cross-examined at some length as to her credibility and reliability as a witness by Mr Hanna. I found the plaintiff to be an honest witness who made appropriate concessions under cross-examination. She did not deny (and occasionally volunteered) pre-existing and subsequent injuries and conditions. She was not defensive. She readily agreed that she had traversed the area in which she fell on many occasion prior to the incident. The plaintiff was adamant that the incident had aggravated her pre-existing conditions.

13. I acknowledge the “fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom”: see Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3 at 88. Nonetheless, in my opinion the plaintiff was generally a witness of truth.

The Plaintiff’s Son & Daughter

14. The plaintiff’s son Abdullah, and her daughter Mona Kak both gave evidence in support of their mother’s case on damages. Both of them said, in effect, that their mother’s ability to perform domestic tasks was different (ie diminished) after the incident.

15. Like their mother, I found both the plaintiff’s children to be candid. Neither of them denied that their mother required assistance prior to the incident, and each made appropriate concessions in cross-examination.

The Defendant’s Witness

16. The defendant called only one witness, Mr Kevin James Aiden Mullen, who was (at the time of the incident), and is presently a roads investigation officer at the defendant. His role involves investigating complaints from residents who ring the call/customer service centre at the defendant. He personally goes to the site of the complaint and investigates what has happened and takes photos on his iPad. He then returns to his office and with his “three leading hands” prepares a response to the complaint. Entries are made in the defendant’s computer system about the complaint, its location and any action required. It was not in dispute that neither the plaintiff nor her children (or anyone else on her behalf) had complained to the defendant about this incident. Mr Mullen only became aware of the incident shortly before the first day of trial. He was asked to search his records for complaints about the footpaths near to 2 – 14 Meredith Street, which he brought along to court. He was both examined and cross-examined on those documents. Two incident reports were of some relevance, in that they were logged in the year before the incident, and the addresses were said to be proximate to 2- 14 Meredith Street.

17. When Mr Mullen was shown exhibit 3 by Mr Jobson and asked whether broken and cracked concrete was shown in the photograph, he agreed [T 113 42 – 47]. However, he did not agree that the broken and cracked concrete depicted constituted a “trip hazard” [T 113 48 – 50].

Consideration

18. In a civil proceeding, the court must find the case of the party proved if it is satisfied that the case has been proved on the balance of probabilities: section 140 of the Evidence Act 1995. The Dictionary of the Evidence Act defines “case of a party” as the facts in issue in respect of which the party bears the legal burden of proof.

19. The plaintiff’s cause of action in negligence identifies eleven particulars of breach of duty of care as follows:

1. exposed the plaintiff to a risk of damage and or injury of which it knew or ought to have known;

2. failed to take any or any adequate precautions for the safety of the plaintiff;

3. failed to take any or any adequate measures to prevent the injury to the plaintiff;

4. failed to have in place a proper system of inspection so as to identify the risk which the cracked concrete gap adjacent to the pit presented to pedestrians such as the plaintiff;

5. in the event that the system of inspection is alleged to have been appropriate and proper in the circumstances, it is alleged that such system of inspection was not operative at the time of the injury;

6. failed to have in place a proper system of repair and maintenance so as to identify and remove the risk which the cracked concrete gap adjacent to the pit presented;

7. in the event that the system of repair and maintenance is alleged to have been appropriate and proper in the circumstances, it is alleged that such system of repair and maintenance was not operative at the time of the accident;

8. failed to properly repair and maintain the pit;

9. failed to have in place sufficient warning signs by way of paint, barricading or signage whereby the plaintiff would have been alerted as to the existence of the cracked concrete gap adjacent to the pit;

10. failed to mark the pit edge with florescent paint so as to alert persons such as the plaintiff as to the fact that the adjacent footpath was cracked and constituted a trip and fall hazard; and

11. failed to reinstate the area around the pit so as to remove the hazard.

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

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

5B General principles

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

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

2. the risk was not insignificant, and

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

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

1. the probability that the harm would occur if care were not taken,

2. the likely seriousness of the harm,

3. the burden of taking precautions to avoid the risk of harm,

4. the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

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

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

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

21. I will approach each subsection in turn.

Section 5B and 5C factors: Conclusions

22. Mr Hanna submitted that the risk of harm for the purposes of the Act was that a person might trip over the crack in concrete depicted in exhibit 3, fall to the ground and sustain injury. Mr Jobson did not submit anything to the contrary, and I accept this formulation for the purposes of the Act.

23. I now approach the section 5B and section 5C factors in turn, noting that section 5B says that a person is not negligent in failing to take precautions against a risk of harm unless:

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

24. As to (a), I find that there not a risk of which the defendant knew or ought to have known.

the risk was not insignificant, and

25. As to (b), I find that the risk was not only not significant, but insignificant. This finding is based on the plaintiff’s evidence concerning the fall, the photograph that is exhibit 3 and the lack of information I have about the physical properties of the crack. I also take into account the evidence of Mr Mullen that the photograph did not constitute a trip hazard.

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

26. As to (c), I am not satisfied that a reasonable person in the defendant’s position would have taken any precautions against a risk of harm.

27. In determining whether a reasonable person would have taken precautions against a risk of harm, section 5B(2) requires a court to consider the following (amongst other relevant things):

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

28. As to (a), I find that the probability that the harm would occur if care were not taken to be significantly low.

the likely seriousness of the harm,

29. As to (b), I find that the likely seriousness of the harm was such that it cannot be said to be that there was a real likelihood of the plaintiff sustaining serious bodily injury. This is reinforced by the fact that there were no incidents on that particular part of the footpath reported to Mr Mullen prior to the date of the incident.

the burden of taking precautions to avoid the risk of harm,

30. As to (c), whilst the burden of taking some precautions to avoid the risk of harm, which Mullen agreed would not have been a significant financial burden on the defendant, they were in my opinion neither necessary nor reasonable because the risk of harm was negligible.

the social utility of the activity that creates the risk of harm.

31. As to (d), the question of social utility does not relevantly arise.

32. Further, section 5C requires a court, in proceedings relating to liability for negligence to consider:

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

33. As to (a), I find that the financial burden to the defendant to avoid similar risks of harm is likely not to have been burdensome. I repeat, that the risk of harm in the instant case was negligible.

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

34. As to (b), I note that the fact that a risk of harm might have been avoided by doing something differently does not of itself give rise to or affect liability. As the risk was negligible, this factor does not arise.

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

35. As to (c), no subsequent action was taken.

36. It follows that in my view, the defendant was not negligent as alleged by the plaintiff, and her case should fail. The particulars of negligence, which have been extracted above, are not made out on the evidence.

Obvious Risk

37. In its defence, the defendant pleads section 5F – 5H of the Act, but the defence was abandoned during submissions.

Contributory Negligence

38. The defendant also pleads contributory negligence. It too, properly, was abandoned during submissions.

Causation: Sections 5D and 5E of the Act

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

40. The relevant sections of the Act provide:

5D General principles

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

1. that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

2. that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

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

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

1. the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

2. any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

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

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

41. In the present case, the section 5D(2) would have had no application. In any event, I am not satisfied on the evidence that there was a breach of duty amounting to negligence, so that the question of causation under section 5D(1) does not arise.

42. It follows that in my opinion, the plaintiff has not made out her case in negligence, which must necessarily fail.

Section 45 of the Act

43. In the event that I am wrong in my conclusions set out above, I turn to section 45 of the Act, which provides as follows:

Special non-feasance protection for roads authorities

1. A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

2. This section does not operate:

1. to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

2. to affect any standard of care that would otherwise be applicable in respect of a risk.

3. In this section:

1. carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.

2. roads authority has the same meaning as in the Roads Act 1993.

44. Both parties relied on Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423. In that case, the majority of a bench of five (Basten, Macfarlan and Meagher JJA) held that the immunity in the section applies if an immediate cause of the harm that befell a pedestrian was a council’s failure to rectify a defective pavement. That there might be other causes such as the negligent carrying out of inspections would not preclude the application of section 45. Basten and Meagher JJA held that the section applied not only to nonfeasance where the relevant authority had not carried out an inspection of the defect, but to cases of misfeasance where it is alleged that there was a negligent inspection.

45. Mr Jobson submitted that on two occasions prior to the incident (8 December 2015 and 12 February 2016) Mr Mullen had been put on notice of defects in the footpath close to where the plaintiff fell, and that he therefore had actual knowledge of the “particular risk, the materialisation of which resulted in the harm suffered by the plaintiff”, and the immunity in section 45 of the Act did not apply. He further submitted that Mr Mullen’s evidence was that he twice searched in the vicinity of 2-14 Meredith Street looking for the reported defects and that he ought to have found the defect the subject of these proceedings. I reject these submissions. I find that Mr Mullen did not have actual knowledge of the particular risk. On the first occasion he went to search, Mr Mullen was directed to an area some 40 yards or so from where the plaintiff fell. As to the second, he was directed to an area some 500 yards away. I find that Mr Mullen never inspected the footpath near to where the plaintiff fell. In any event, even if Mr Mullen had traversed the area of footpath where the plaintiff fell, he would not have noticed anything untoward.

46. In Nightingale, the majority found that the authority (here, the defendant by Mr Mullen) had to have actual knowledge of the particular risk of harm (here, the alleged defect which allegedly caused the plaintiff’s fall) if the immunity were not to apply. On the evidence before me, the defendant did not have actual knowledge of any particular risk of harm, which as I have found was in any event negligible. Even had there been a not insignificant risk of harm, I would have found that the immunity conferred by section 45 of the Act applied, as in my opinion it covers a failure to inspect.

47. In submissions, Mr Jobson conceded that this was not a case of negligent repair. As to negligent inspection, to the extent that it was raised by Jobson, it was not pleaded and no application was made to amend the pleadings at any time. I therefore disregard any submission with respect to negligent inspection.

48. In my opinion, the plaintiff has not made out her case on the balance of probabilities. Any risk of harm was negligible and required no response from the defendant. Further, even if I am wrong about those matters, in my opinion section 45 of the Act would have exculpated the defendant.

Damages

49. In the event that I am wrong on the question of liability, I turn to what I would have otherwise assessed as the plaintiff’s damages.

50. It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, that plaintiff is entitled to damages reflecting his or her reasonable, as opposed to optimal needs.

51. As to the plaintiff’s reasonable needs, I note that in Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649, the High Court considered the method of assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case Barwick CJ said, at 661, that “the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff”, and at 662 that “the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment”. In arriving at judgment on those issues, a court “must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be”: see Moran v Nominal Defendant [2008] NSWSC 804, where the principles are briefly collected by Hislop J at [38].

52. These are the principles which must be applied when determining the plaintiff’s likely award of damages.

Failure to Call and Cross-examine Witnesses

53. Before considering the medical evidence, I observe that the parties conducted the trial without calling expert medical witnesses for cross-examination, and did not avail themselves of the court’s practice and procedure for the calling of concurrent evidence. It cannot be said that the medical expert reports were not in conflict in some respects. That the parties chose not to call the medical experts for cross-examination put the court at a disadvantage: see Cupac v Cannone [2015] NSWCA 114, and Majkic v Bonanno [2008] NSWCA 253.

54. I have done my best, dealing with the medical reports and notes with which I have been provided, to try and determine if the incident caused the plaintiff any lasting disabilities.

Medical Evidence

Dr Peter Giblin

55. Dr Peter Giblin, orthopaedic surgeon, provided a medico-legal report for the plaintiff dated 26 June 2017. I note that the plaintiff has never seen an orthopaedic specialist for treatment of her alleged injuries, and that Dr Giblin examined the plaintiff approximately 29 months prior to the hearing.

56. Dr Giblin examined the plaintiff once, on 20 June 2017, more than two years prior to the hearing. He noted that the plaintiff’s symptoms are mechanical in nature so that she can walk for only 15 minutes, stand for 10 minutes and sit for 60 minutes. She woke several times a night with back pain. Around the house, she is limited in terms of bending and lifting and doing repetitive twisting movements. The plaintiff estimated that her daughter helped her with the housework and shopping for eight hours per week. She could still drive a car but only for a short distance.

57. On examination, Dr Giblin found some mild soft tissue swelling and general tenderness on the dorsal and distal aspect of the plaintiff’s right forearm which limited her palmar flexion to three quarters normal when compared to the left wrist. Deep tendon reflexes were preserved in the biceps, triceps and supinator jerk. The right shoulder had no adhesive capsulitis but the left shoulder had moderate adhesive capsulitis. She had a slightly restricted range of motion of her neck to two thirds normal. In the erect position with her feet together, the plaintiff could bend over and touch to just below her knees. In the seated position she could fully extend both knees but the right one was very noisy. In the supine position, the circumference of each calf and the palpable girths of each thigh were equal. The right knee was dry and stable in all planes and her hips had normal passive range of motion. The left knee had some minor retro patellar crepitus and chondromalacia.

58. In Dr Giblin’s opinion, the plaintiff had a provisional diagnosis of a soft tissue injury to her right knee, left shoulder, neck and low back, and right forearm which in his opinion all were reasonably causally related to the fall. Her condition was stable. In his view, her symptoms were never going to resolve and her injuries would deteriorate, and in due course she may become a candidate for consideration for surgical procedures. He advised that her treatment should be common sense based self-imposed physical restrictions. He believed that she required a minimum of three hours per week physical assistance in terms of her heavy domestic responsibilities. Her ongoing medical management should be conservative and directed by her family doctor.

Dr Roger Rowe

59. Dr Roger Rowe, orthopaedic surgeon, reported for the defendant on 8 August 2019, some three and a half years after the incident. The plaintiff reserved this report in her case.

60. The plaintiff told Dr Rowe that her right foot went into a hole and it was this that caused her to fall. She showed him a photograph of a crack in some concrete. As a result of the fall, she sustained bruising on the right side of her face and extensive bruising over the right lower leg. She also had a sore right wrist and a sore left shoulder. X-rays had excluded any fracture. She reported currently taking Mobic 15 mg each morning and Lyrica 25 mg twice daily. She took Panamax if necessary. She was in receipt of the aged pension.

61. The plaintiff told Dr Rowe that her only other accident was a fall which occurred a few years prior to the incident which resulted in a fracture of her left ankle. She told him that prior to this fall, she had been troubled by low back pain radiating into the left leg due to a long standing disc problem. This low backache was aggravated by the fall. Dr Rowe notes that the plaintiff had other falls in October 2014, May 2015, April 2018 and July 2018 which are noted in the records of Dr Selim (see below).

62. The plaintiff reported that there is some discomfort present in her right knee most of the time that the back of her right wrist and distal part of her forearm ache constantly, that her left shoulder aches constantly, and that her low back aches most of the time and radiates into the left leg. Prior to the fall, she reported being able to undertake all activities in regard to personal care and domestic chores, although she may have been helped by her daughter in the preparation of a big meal. Since the fall the subject of the incident, the plaintiff has been able to dress herself slowly and with some difficulty. She is able to cook light meals and does some cleaning and washing. She is assisted with heavier aspects of domestic chores by her son and daughter.

63. On examination Dr Rowe noted that the plaintiff walked with a normal gait and moved normally. Examination of the neck revealed no abnormality. Examination of the back revealed the ache to be situated over the lower lumbar region. She was able to bend forward to touch the upper shin level. There was no localised neurological deficit in the lower limbs. Examination of the right knee revealed normal alignment. It had a full range of movement and there was no obvious muscle wasting. Examination of the right wrist revealed that it was clinically normal. Examination of the left shoulder revealed no localised tenderness but the movement was somewhat restricted. By comparison, the right shoulder had a full range of movement in all directions.

64. In Dr Rowe’s opinion, the fall may have produced bruising over the right lower leg and on the right side of face. It may also have strained her right wrist and left shoulder. It may have aggravated pre-existing degenerative change in her lower back. As it was now 3 ½ years since the fall, he believed that her condition was static and permanent, and that her symptoms are likely to continue in the future in much the same fashion. He believes that it would be reasonable for the plaintiff to be reviewed by her general practitioner six times per year for a review of her analgesic medication. In view of the pathology in the plaintiff’s back and left shoulder, he thought it reasonable that she be assisted by her son and daughter for any significant cooking or major cleaning. He believed that one or two hours of assistance per week for these heavier domestic activities would be reasonable and ongoing.

Notes of Dr Selim and other medical records

65. Exhibit A is the defendant’s tender bundle. It contains the report of Dr Rowe and assorted other medical documents. It was admitted without objection.

66. Those documents indicate that the plaintiff first suffered low back pain and stiffness in August 2013. In September 2013 she was admitted to St. George Hospital for chest pain and her past medical history included chronic back pain. In February 2014 the plaintiff was first prescribed Mobic, which she has continually been prescribed. On that date, the plaintiff also suffered bilateral feet and hand pain and had bilateral shoulder arthritis. In July 2014, the plaintiff had a fall in a shopping centre and by the next month was complaining of low back pain, stiffness and left leg pain. In October 2014, the plaintiff had a fall and lacerated her right foot. In January 2015, the plaintiff was suffering bilateral knee pain and low back pain. In April 2015, the plaintiff suffered another fall and injured her chest and her ribs. In May 2015, the plaintiff was suffering from bilateral hand, knee, low back pain and joint pains.

67. One 27 February 2016, the date of the incident, the plaintiff reported to ambulance officers that she tripped when she got her thong caught on a footpath. A similar report was made in the emergency department of the Bankstown/Lidcombe Hospital. In the following months she complained of left shoulder pain and left ankle pain. In April 2018, the plaintiff tripped over uneven concrete suffering injuries to her knees head and spine. In July 2018 she presented to Canterbury Hospital following a fall in a cinema. In October 2018 the plaintiff had a fall on concrete when she injured her forearm.

68. There is no doubt that prior to, and following the incident that the plaintiff complained of pain in various parts of her body, some of which were apparently injured in the subject incident. So much was conceded by the plaintiff herself in evidence, and by Mr. Jobson in his submissions.

69. I accept, for the purposes of an assessment of damages, that the plaintiff suffered bruising over the right lower leg and on the right side of her face. I also except that it strained her right wrist and left shoulder, and on the balance of probabilities aggravated pre-existing degenerative change in her lower back, and contributes in some small way to the ache that she continues to feel in her back and her leg.

Non-economic loss

70. What then is the extent of Ms El-Kak’s non-economic loss? An award of non-economic loss is an evaluative judgment: see Clifton & Ors v Lewis [2012] NSWCA 229 per Beazley JA at 33. Section 16 of the Act speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (considering the like provision of section 79 of the Motor Accidents Act 1988) is therefore relevant. More recently, the Court of Appeal considered those words in Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25.

71. In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum, but suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss:

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

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

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

72. In Zhang, Basten JA said that the purpose for which the assessment of severity is to be made is to identify the effect of the injuries suffered by a particular plaintiff.

73. In Coleman v Barrett [2004] NSWCA 27, Gzell J said at 63:

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

74. See also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5] and generally Hall v State of New South Wales [2014] NSWCA 154 per Leeming JA.

75. I note that as of 1 October 2019, the statutory maximum for non-economic loss under the Act is $658,000.

76. Mr Hanna contended that the plaintiff was entitled to 15% of a most extreme case, or $6500 and no more. Mr Jobson, on the other hand, submitted that I would find that the plaintiff was entitled to between 25% and 28% of a most extreme case, which would yield damages in the amount of between $43,000 and $93,000.

77. In the present case, I accept for the purpose of assessing damages only, that the plaintiff suffered an a soft tissue injury, the effects of which continue to this day (as conceded by Dr Rowe), notwithstanding her previous and subsequent conditions which are unrelated to this incident. I accept that the fall likely aggravated pre-existing degenerative changes to her lower back. I allow 25% of a most extreme case, or $43,000.

78. Past out-of-pocket expenses

79. Past out-of-pocket expenses have been agreed in the amount of $2087.05. It is conceded by the defendant that they have been reasonably incurred.

80. Future out-of-pocket expenses

81. The plaintiff’s claim for future medication was abandoned. Mr Jobson submitted, however, that the plaintiff is entitled to the cost of attending her general practitioner six times per year. There is no evidence as to its cost. Further, Dr Rowe observed that her need to attend a general practitioner was for review of her analgesic medication, which it was conceded was taken prior to the fall. In those circumstances, I make no allowance under this head of damage.

Gratuitous care in the past

82. I note that the parties agreed that the cost of past gratuitous care is $31 per hour up to and including the trial. Whatever assistance the plaintiff may have required in the past as a result of the incident, I am unable to determine on the evidence what her reasonable needs might have been at any time following the accident, notwithstanding the evidence of the plaintiff, her son and her daughter on this topic. Whilst I am satisfied that the plaintiff required assistance for at least six months after the incident, (according to her son), there was insufficient evidence setting out the number of hours for which she required that assistance up to approximately September 2016. After that time and to date, whilst there was evidence that her daughter (and two years later her son) continued to provide assistance, there was no attempt at breaking down the hours of assistance which have been provided, and no evidence that the assistance was reasonably related to the effects of the fall. I therefore conclude that she has not satisfied the threshold set out in section 15 of the Act. I make no award under this head of damage.

Future gratuitous care

83. I note that the plaintiff has abandoned her claim for commercial care in the future, as there is no evidence as to its cost. The parties have agreed that the cost of future gratuitous care is $32.18 per hour.

84. Dr Rowe provides the only recent medical evidence. I am not of the view that Dr Rowe, as an orthopaedic physician, has the requisite expertise to prescribe care, and his prescription does not satisfy the threshold in section 15(3) of the Act of six hours per week in any event. I would have expected a specialist rehabilitation physician and/or an appropriately qualified occupational therapist conducting a home visit to make a prescription for any care required, in order to establish the care needs of the plaintiff. In this case, no medical or para-medical practitioner makes any prescription for the amount of gratuitous care the plaintiff apparently currently receives or requires in the future.

85. In short, the plaintiff’s need for care arising out of the disabilities she allegedly suffered as a result of the incident has not been established on the evidence, and I would therefore make no award for future gratuitous care.

86. The plaintiff makes no claim for economic loss either in the past or in the future.

87. Had the plaintiff been successful, I would have assessed the plaintiff’s damages as follows:

1. Non- economic loss:                    $ 43,000.00

2. Past out-of-pocket expenses:      $   2,085.05

3. Future out-of-pocket expenses:   $          0   

4. Past gratuitous care:                    $          0   

5. Future gratuitous care:                 $          0 

6. TOTAL:                                         $ 45,085.05

Disposition

88. I make the following orders:

89. (1) Verdict and judgment for the defendant;

90. (2) The exhibits are to be returned;

91. (3) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis until 23 July 2019.

92. (4) The plaintiff is to pay the defendant's costs of the proceedings on the indemnity basis from 24 July 2019.

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Decision last updated: 20 December 2019