Ford v State of NSW - [2001] NSWSC 145

No judgment structure available for this case.

CITATION: Ford v State of NSW & Anor [2001] NSWSC 145

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20209/2000

HEARING DATE(S): 9, 10, 11, 12 & 13 October 2000

JUDGMENT DATE:
16 March 2001

PARTIES :

Janel Ford
(Plaintiff)
State of New South Wales
(First Defendant)
Macleay Home Modification & Mainteneance Services Inc
(Second Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr P Doherty
(Plaintiff)
Mr S G Campbell QC with
Mr M A J Perry
(Second Defendant)

SOLICITORS:
Garrett Walmsley Madgwick of
Port Macquarie
(Plaintiff)
Curwood & Partners
(Second Defendant)

CATCHWORDS: Negligence - Damages - Tripping at entrance to bathroom

CASES CITED: Jones v Dunkel (1959) 10 CLR 298
Astley & Ors v Austrust Limited (1998-99) 197 CLR 1
Froom v Butcher [1976] QB 286
Gunning v Fellows (1997) 25 MVR 97
Pennington v Norris (1956) 96 CLR 10
Sungravure Pty Limited v Meani (1964) 110 CLR 24
Jefferies v Road & Traffic Authority of NSW, unreported 28 November 1997
State Government Insurance v Oakley (1990) Aust Torts Reports 81-003
Van Gervan v Fenton (1992) 175 CLR 327
Sullivan v Gordon (1999) 47 NSWLR 319
Malec v Hutton (1990) 169 CLR 638

DECISION: (1) The second defendant is to pay the plaintiff the sum of $53,979.55; (2) Costs are reserved.

56

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 16 MARCH 2001

20209/2000 - JANEL FORD V
STATE OF NEW SOUTH WALES & ANOR
JUDGMENT (Negligence; damages

tripping at entrance to bathroom)

1 MASTER: On 13 July 1998 the plaintiff tripped slipped and fell at the entrance to her bathroom. She alleges that the second defendant was negligent in carrying out renovations to the bathroom in her premises. As a result of the fall the plaintiff alleges that she suffered injury to her right hip that has permanently confined her to a wheelchair. The case has been settled as against the first defendant. The cross claim between the first and second defendant has also been settled.

2 The plaintiff was born on 28 May 1966 and is now 34 years of age. She currently resides in Darwin. It should be recorded that the plaintiff was born with a congenital hip disorder and had coped admirably up until 1998. It is convenient that at this stage I record my observations of the plaintiff and her demeanour. I observed her carefully when she was giving evidence and being cross examined over a few days. She is an intelligent witness. I formed the view that she tailored her evidence so that she presented her case in its most favourable light. There were inconsistencies in her evidence when she attempted to portray herself in this fashion. I was not overly impressed with her demeanour. I would have been prepared to overlook one or two of these inconsistencies but there were more than that. All of the inconsistent evidence was given in circumstances where she sought to put her case at its highest. Some examples to illustrate why I arrived at this view are as follows. The first inconsistency was her explanation whether she was aware of the EEO policy and its applicability to persons in wheelchairs. The plaintiff has been employed in approximately 12 to 13 Government departments or welfare organisations which assisted people with disabilities. During cross examination when the plaintiff was asked if she was aware of the EEO policies of these organisations she was quite evasive. She answered that she was not aware of the policy. Yet in the plaintiff’s resume (Ex D, 1993 p 10) she stated that she had an obligation in relation to EEO principles. The plaintiff is currently undergoing a Bachelor of Legal and Justice studies at Southern Cross University. She recently obtained a credit in EEO and OH & S Law and Practice.

3 The second example of inconsistent evidence relates to the circumstances which caused her to resign from the second defendant’s committee. The plaintiff first became acquainted with Mr Usher through her involvement in community work. Mr Usher was the project manager of the second defendant. At first the plaintiff could not remember if she was on the committee when the quote was given. She became better acquainted with Mr Usher through her work during 1996 when she was on the management committee of the second defendant. The plaintiff gave evidence that while she occupied the position of secretary of the management committee of the second defendant she asked Mr Usher to look at her bathroom. The plaintiff said from memory she served as secretary for a few months, but did not serve a full term of office. The plaintiff in her resume makes no mention of having held this position with the second defendant. The next day in cross examination the plaintiff volunteered that she resigned from the management committee at the same time she accepted the quote, as she perceived that a conflict of interest would arise if she was a member of the committee who sought to have work done by it.

4 The plaintiff in cross examination conceded that at the time she asked Mr Usher to quote for the job she did not consider that she was a disabled person, but after the job was done on this basis, she complained of being a disabled person and the second defendant should have taken this disability into account. The plaintiff agreed that Mr Usher was not asked to make any provision for affixing grab rails in the quote. She later complained in correspondence about the grab rails not being provided. The plaintiff agreed that she did not ask Mr Usher to make any special provisions in that work for any precautions to be taken for her safety in the bathroom. The plaintiff said she did not need any modification of that type as she did not consider herself as having any disability.

5 An unsatisfactory answer was given by the plaintiff when she was asked to explain what she meant by the word “What!” on a letter she received from the second defendant. On 10 September 1998 the second defendant wrote to the plaintiff making an offer for the rectification of the poor workmanship which involved the performance of the work by an independent contractor. (Ex J). Part of the offer was that the plaintiff pay the agreed contract price and the second defendant would pay whatever it cost to have the work rectified by the independent contractor to the plaintiff’s satisfaction. In cross examination the plaintiff was asked a series of questions in relation to her understanding of the contents of this letter. Although lengthy, the example below is a good example of the plaintiff’s method of answering disagreeable questions.

6 The plaintiff gave evidence that until she had the accident she had not experienced pain in her hips except after the operations she underwent in her youth. In a letter dated 12 July 1998 to the second defendant (Ex H) she recorded that about 1 to 2 months before the accident she experienced "immense pain when undertaking the extra cleaning duties required when builders are on my premises. I accept the fact that any building would create extra cleaning work, however, I refuse to continue to subject myself to further chronic physical pain to clean up after a job which should have been carried out to an appropriate standard in the first place and well and truly completed by now." (plaintiff's emphasis added). By this the plaintiff was conveying the pain she suffered was not of a minor nature. Rather the pain she experienced was chronic and intense. The explanation she gave of rating the level of pain she experienced at various times was not convincing.

7 Three lay witnesses who worked in the same building with the plaintiff, Ms Grant, Mrs Flannigan and Ms Dixon gave evidence. At times prior to the accident when these witnesses had conversation with the plaintiff she had said to them words to the effect that she had been told by the doctors that one day she would end up in a wheelchair. Yet when the plaintiff was asked about these conversations she could not remember them. This does not seem credible. It would be a matter of considerable importance to the plaintiff that at some time in the future she would be reliant on a wheelchair for mobility. This is not a topic of conversation which she nor her work acquaintances would have easily forgotten. There are other examples of inconsistencies referred to throughout this judgment.

8 The last matter that ought be mentioned is that when the plaintiff was asked by the court for her assistance in relation to what sort of work she thought she could do in the future. She became visibly upset so an adjournment was given. No doctor had considered that she was incapable of working. After the adjournment, the plaintiff said that aside from finishing her degree she was unable to give any assistance to the court.

9 Due to the matters outlined above and the manner in which the plaintiff gave her evidence, I have serious reservations in accepting it so I have given it most anxious and careful consideration.

Background

10 The plaintiff attended school at Kempsey. She completed Year 12 in 1984 at Kempsey High School. From the age of 4½ she was diagnosed as having clicky hips (bilateral congenital dislocation of the hips). Her hip joints are not properly formed. Until the accident, her left hip was a lot worse than her right hip. Between the ages of 5 and 17 years the plaintiff underwent about 13 operations, most of which occurred between the ages of 5 and 10 years. These operations did not offer her a miraculous cure but they kept her on her feet. The plaintiff had to use crutches after each operation. She used orthotics until aged 17 years. Her left leg was 5 centimetres shorter than her right leg. Since childhood the plaintiff has walked with a limp and favoured her right leg as a method of protecting her left leg.

11 In Year 11 the plaintiff underwent a left double Wagner osteotomy procedure to her femoral neck in her left leg. This was an attempt to lessen the difference in length of the left and right legs. Prior to undergoing this operation, the plaintiff accepts that she complained of pain in her left hip especially after walking and running. She also had pain in her low back. (see Prince of Wales hospital notes of 15 September 1983-28 September 1983 - Ex 14). The hospital notes state that the acetabulum appeared extremely shallow. After the operation she experienced numbness in her greater toe on her left foot. The operation involved a three millimetre plate being inserted to hold the head of her femur into her hip joint.

12 Unfortunately in 1986 when the plaintiff was recovering from the osteotomy she was involved in a motor vehicle accident when the bone graft had reached a honeycomb stage. The plate broke. The plate and the stimulator battery had to be removed by means of a further operation . Nevertheless, the plaintiff went on to complete her HSC. From 1986 until the accident on 13 July 1998 the plaintiff did not have any further medical treatment in relation to her hips nor did she require any medication. Since the double Wagner operation took place the plaintiff acknowledged that the numbness in her greater toe abated but the numbness in her next two toes has remained until the present time.

13 The plaintiff played hockey in the State titles as goalkeeper when she was 15 or 16 years of age. When further questioned on this topic, the plaintiff was not sure whether or not she played to represent the State. Once again, the plaintiff’s evidence is unreliable. Apparently, she played representative volleyball and squash. The plaintiff stressed that she never considered herself disabled. The only physical limitation which her congenital hip problem caused her was that she was unable to run due to her awkward gait.

14 The plaintiff commenced work in 1985. I shall refer to the plaintiff's work history in more detail later in the judgment. In 1986 or 1987 the plaintiff brought her property at 18 Warrington Avenue Kempsey. She used the $30,000 settlement moneys which she received as a result the motor vehicle accident as deposit on the house. In 1988 the plaintiff married. Her first husband suffered from Crohn's disease. The marriage broke down in 1990. On 8 January 1990 the plaintiff gave birth to her first daughter Lacey Rae. On 26 April 1992 she gave birth to her second daughter Paige. The relationship with Paige's father subsequently broke down. The plaintiff commenced a relationship with her current husband, Jim Ford at the beginning of 1997. They started living together in about June 1998. They married in 3 December 1999.

15 The plaintiff gave evidence that from 1985 until 1998 she had no problems with her hips. According to the plaintiff, during both pregnancies she did not experience any pain in her hips and continued to work. She gave birth to both girls by caesarean section. On the second day after the birth of her second daughter there is only one entry in the hospital notes (Ex S) that she had troublesome hip pain.

16 The plaintiff continued to lead a very busy and active life as a working mother of her two children. At times she juggled up to three jobs. Prior to the accident, her husband described the plaintiff as being as “fit as a trout with one hip”. Prior to the accident the plaintiff’s left leg was worse than her right and she walked with a gait. Up until the time that the accident occurred the plaintiff spent time with her children in active leisure activities including going to the beach, bushwalking and collecting shells. She liked to dance. Her husband gave evidence that they were able to go on family outings to places such as Lighthouse Beach. This beach had a steep incline to get down to the beach. He said that the plaintiff complained about pain in her legs after negotiating those climbs. Mr Ford is physically fit but the muscles in his legs also became sore after the climb.

17 Since the beginning of 1995 the plaintiff has been studying for her Bachelor of Legal and Justice Studies at Southern Cross University. She is seeking to obtain a triple major in management, dispute resolution and social justice. The course involves completion of 24 units. She had completed 20 and has a further 4 units which intends to complete. The plaintiff has performed well academically and has obtained a number of distinctions and credits. The completion of this particular degree does not make her eligible for admission as a solicitor.

Work history prior to the accident

18 In 1985 the plaintiff commenced employment with Kutjar Pottery at Hickey Creek. She was involved in producing 100 mugs or 20 teapots on a pottery wheel. She was able to use her right leg on the pottery wheel without any problems other than she was unable to weight bear and knead a large lump of clay. The plaintiff was employed for 20 hours per week for approximately one year. She also applied for and received a disability pension for which she fulfilled the requirements of despite considering that she was not disabled and that her leg shortening did not affect her lifestyle. In 1986 she developed skills of her own and decided to start up her own business called Studio Ceramics at Kempsey. The plaintiff conducted this business between 1986 and 1993. She said this business did quite well and kept her occupied. She earned enough to live off with bonus times such as Christmas. Sometime between 1990 and 1993 the plaintiff also commenced receiving a further allowance from the government namely a mobility allowance and this continued throughout her working life.

19 In 1993 the plaintiff decided to wind the business down because of two main reasons namely she then had two children, the younger had health problems, and there was a flattening in the market. Meanwhile in 1991 she was employed by the Department of Community Services at Kempsey as a support worker on the Valued Lifestyle program. Her duties were to provide support, information and practical life skills to clients with an intellectual disability. When the funding ceased she obtained the supporting parent's benefit.

20 In 1993/1994 the plaintiff obtained a job at the Macleay Personnel Inc Kempsey Open Employment Service as a senior vocational trainer part time. Once again the funding ceased. In 1993/1994 she was also employed by the Durri Aboriginal and Medical Service Kempsey as a part time receptionist and as a family support program development officer. The employment with this organisation ceased upon the research being completed. In 1994/1995 the plaintiff was employed as a case manager by the Macleay Personnel Inc Kempsey, a specialist employment service. She was required to assist disadvantaged and disabled people to recognise and reach their full potential in education, training and employment.

21 In 1996 the plaintiff was a consultant with the Kempsey local Aboriginal Lands Council. Her duties were to develop a three year program for a community development employment project. She was able to do some of this work from home. This project is currently funded and operational. Between 1995 and 1996 she was also a consultant for Kempsey Workpool Inc and her duties there were as a disabilities support worker, training needs analysis in alignment with the National Competency Standards for Disability Services. This project is currently operational. Once again she could do some office work from home. She did not pay tax on the moneys received from her consultancy work.

22 From 1995 until 1999 the plaintiff was employed by Djigay Student Association Inc at Kempsey College of Technical and Further Education as a lecturer in Welfare studies on an average of two days per week. She prepared submissions for funding according to government grants available and research community need, ie., youth issues, gambling addiction, arts, adult employment and education.

23 From 1997 to 1998 she was employed by the Department of Juvenile Justice in the Aboriginal mentor program. She was required to provide practical life skills support, information and assistance to juvenile justice clients. From 1996 to 4 June 1997 the plaintiff was employed by the Kempsey Neighbourhood Centre as a consultant and later as a manager. Her duties were to provide administrative support to the Neighbourhood Centre co-ordinator and counsellor. She had to collect, disseminate and distribute a wide range of statistical information and was required to do word processing, collate written activity reports, answer general service enquiries and customer service. She also liaised with government and non-government services and Koori and non-Koori communities at a local level. In the latter years the plaintiff was responsible for management of the annual budget and the daily administration of the centre. She was also involved in confidential crisis counselling. The plaintiff was initially contracted to work 20 hours which was later increased to 25-30 hours per week but she often worked almost double the allotted hours.

24 After the accident she completed the year teaching at TAFE but with restrictions. Her husband had to drive her from the lower campus to the higher campus as the terrain was too rough and hilly for the plaintiff to negotiate in a wheelchair. For a while she tried to teach on crutches rather than use the chair.

25 Although the plaintiff gave evidence that she did not experience pain in her hips prior to the accident, I do not find this the case. She experienced some pain in her hips at times, such as after the birth of her second daughter but the pain resolved and did not impact on her lifestyle. However by May 1998 she had experienced more severe and noticeable pain which did impact on her lifestyle. In May 1998 she recorded that she experienced severe and chronic pain due to her form of disability. (see Ex H p 6).

The pleadings

26 The plaintiff alleges causes of action in both breach of contract and tort. The plaintiff alleges that the second defendant was negligent, firstly, as it failed to perform the building and/or modification works in a workman like manner; secondly, failed to install a shower screen in the bathroom; thirdly; failed to adequately assess the plaintiff's need and disabilities prior to commencement of the works; fourthly, failed to design the entrance into the bathroom so as to minimise the possibility of tripping while entering the bathroom; fifthly, failed to lay the bathroom tiles so as to be flush with the hallway entrance; sixthly, failed to fix a ramp or other such item so as to minimise the probability of tripping while entering the bathroom; seventhly, exposed the plaintiff to the risk of injury which could have been avoided by reasonable care; eighthly, failed to ensure adequate drainage of the bathroom; ninthly, failed to affix grab rails or alike to the bathroom; tenthly, failed to assess the modification works at the completion of the works so as to ensure a workman like standard; eleventhly, failed to adequately inspect modification works carried out; twelfthly failed to observe the plaintiff was in a position of peril; thirteenthly, permitted modification works to be carried out that were dangerous and/or defective; and fourteenthly, further in the alternative the plaintiff contracted with the second defendant for consideration for the various building works to be carried out by the second defendant. In relation to these particulars of negligence, the allegation of failure to install a shower screen did not cause the accident, so the second ground fails. Further, the plaintiff in evidence admitted that there was no agreement concerning grab rails so the eighth ground fails. The plaintiff did not make any reference the lack of proper drainage as causing her accident. The ninth ground also fails.

27 The second defendant submitted that the accident did not occur. Alternatively, the second defendant contends that the plaintiff may have injured herself when she performed a twisting manoeuvre in her kitchen or injured herself in a fall in August 1998. Thirdly, the second defendant contends that the accident is not causally related to her injuries but rather her injuries are the result of the degenerative condition in her hip that was worsening over time. Fourthly, the second defendant contends that the breach of duty of contract takes precedence over any claim for breach in tort.

Renovation of the bathroom and the accident

28 About early 1996 the plaintiff decided to have her bathroom renovated. She employed a builder to renovate the bathroom but he was unable to complete the job. That builder had stripped the tiles from the walls, and the floor and stripped the storage cupboard. The vanity and bathtub had been left intact. The shower/spa had been removed but no bathtub had been installed. Without tiles on the bathroom floor there was a rough cement base and a one centimetre drop between the timber hallway and the cement floor. Prior to these renovations being undertaken the surface of the tiles in the bathroom and the floorboards in the hallway were flush.

29 The second defendant’s premises were in the same building as those where the plaintiff was employed. The plaintiff asked Mr Usher in his capacity as a friend if he could firstly inspect her bathroom to assess the quality of the workmanship of the first builder and secondly recommend a tradesperson to complete the work. At that time, the plaintiff was a secretary on the second defendant's community based management committee. Hence she was aware of the role of the second defendant played in carrying out renovations for frail, aged and disabled people to allow them to remain in their own homes. The plaintiff was also aware that the organisation was funded by public money. She did not consider she fell into the class who were eligible for assistance.

30 After the inspection took place, Mr Usher discussed with the plaintiff the work that needed to be undertaken. Mr Usher told the plaintiff that she was eligible to have the second defendant undertake the work because she was disabled. Even though the plaintiff did not consider herself to be a disabled person she was prepared to accept this assistance.

31 The second defendant tendered quotes dated 3 October 1996 and 26 October 1996 (Ex E) for modifying the bathroom by retiling the walls to existing height, waterproofing and tiling the floor, installing a vanity unit, installing a show screen, installing a “fantastic” light and heater and patching the holes to the ceiling. The quote dated 23 December 1996 was for the sum of $1,554. The plaintiff accepted the second quote. She told Mr Usher that she was not in a “mad panic” to get the work done as she realised that they had to prioritise their work load. She was happy to wait because she wanted to job done properly.

32 Early one morning between 15 and 30 May 1998 (about 18 months after the quote was given) some workman arrived at the plaintiff's house. They commenced work by painting the bathroom with a black tar like substance. The next day the walls and the floor were tiled. Prior to the job being commenced the plaintiff had chosen and purchased the tiles for the floor. It was these tiles that the second defendant laid on the bathroom floor. The plaintiff rightly asserted that the job was never properly completed because the holes in the ceiling were never patched, nor was the work finished in relation to the tap fittings and the storage cupboard. Over the next few weeks, the bathroom tiles became detached from the floor. No shower screen had ever been installed. Water from the shower ran and pooled on the floor because no shower screen has been erected. The water did not run down the drain. More relevantly, was a step of about 1½ to 2 inches up from the timber floor in the hallway to the tiled bathroom floor (Ex F).

33 On the morning of Monday 13 July 1998, the plaintiff was fully dressed for work. She walked down the hallway and had intended to go into the bathroom. I infer that she commence to turn into the bathroom. She was barefoot. She caught the toes of her right foot on the raised entrance to the bathroom door. As she fell forward into the bathroom, she felt a ripping sensation in her right hip and fell over in the bathroom (t 15.3). Her husband gave evidence that he was in the bedroom getting dressed when he heard the plaintiff yell. Then he heard a bump. He ran to the bathroom and found the plaintiff with her left foot going towards the bathtub and her right foot back towards the door. She had her hands on the vanity and bath. He went to help her up and she said “No I've hurt myself. I’ll get up when I can.”

34 Both the plaintiff and her husband drew sketch maps of the bathroom (Exs 4 and 10 respectively). The plaintiff husband's previous experience in the engineering section of the Army meant that he was skilled in the estimation of distance by means of sight. Surprisingly he positions the plaintiff's feet 1.8 metres from the lip at point of entry into the bathroom. According to his diagram the plaintiff had one hand on the top of the bathtub and the other on the vanity unit. Her left leg was folded underneath her and her right leg was straight out behind her. Neither the plaintiff nor her husband said that she fell flat on her face. The plaintiff did not say she stumbled before she lost her balance and fell. A distance of 1.8 metres into the bathroom is much longer than one step forward. In an answer to 9.8 of particulars dated 28 February 2000, the plaintiff when asked where there any witnesses to the incident, answered "No". I do not find this to be an inconsistent statement as Jim was not an eyewitness to the accident but rather observed the plaintiff after she had fallen.

35 In a letter to the Department of Housing dated 15 July 1998 the plaintiff stated:

36 Thus there is a contemporaneous letter by the plaintiff which records that she had tripped up the lip at the entry to the bathroom on 13 July 1998 and that she jarred her right hip resulting in pain. The plaintiff initially verbally complained to Mr Usher but nothing was done. She also wrote a letter to the second defendant dated 12 July 1998. It was started on 12 July 1998 (one day before the accident) but not completed until 17 July 1998. She complained about the quality of the workmanship of the modification to her bathroom (Ex H). However in that letter there is no mention made of her fall the cause of which she attributed to the shoddy workmanship.

37 The plaintiff did not go to work on the day of the accident because she was badly shaken up. There is no record of the plaintiff's absence from work on 13 July 1998. However her employee history and leave record shows an absence on 17 July 1998 (Ex 5). The second day after the accident she returned to work. The plaintiff gave evidence that she used an old Canadian crutch that Jim had retrieved from the back shed upon her return to work. For the three day period after the accident, the plaintiff gave evidence that she suffered insistent nagging pain. She consulted Dr Smith a general practitioner on 15 July 1998. Dr Smith’s notes for 15 July 1998 record that the plaintiff consulted him for two reasons, firstly tonsillitis and fever 2/7 ago with vomiting and secondly to obtain a referral to her orthopaedic surgeon Dr Ruff (see referral dated 15 July 1998 - Ex K). There is no record that she told Dr Smith that she had suffered a fall. The doctor did not record that the plaintiff was using a crutch to assist in mobility or that she had hip and back pain. Initially the plaintiff gave evidence that she told him of the fall, but later conceded that she could not remember what she told him. Once again, the plaintiff’s evidence was inconsistent.

38 On Wednesday 15 July 1998 two days after the fall, when opening the mail in the kitchen, the plaintiff turned her right upper torso to show Jim some mail her right leg gave way. The plaintiff gave evidence that her right leg had never given way before. She felt that the power had gone from her right leg. She grabbed the kitchen bench to impede her fall. Since then the plaintiff said that she has had to walk very carefully. She thinks that if she tries to walk in a normal fashion her right hip would grab and she would collapse. She continued to experience tenderness and soreness inside the joint of the her right leg, tingling and bone aches. There is mention in the Royal North Shore Hospital notes of a fall on “15 August” but the handwriting denoting the year is indistinct. I do not accept that this constitutes evidence of a further fall on 15 August 1998. I cannot discern whether this reference refers to a fall that occurred before or after the 13 July 1998.

39 On 21 August 1998 the plaintiff consulted her general practitioner and complained of suffering from sinusitis and requested a medical certificate (Ex 8) as she was having difficulty completing essays. Once again there is no record of hip pain in the doctor’s notes, nor any mention of the fall on 13 July 1998 nor the incident which she says occurred on 15 July 1998. Nor is there any mention that the plaintiff presented using crutches. The plaintiff gave evidence that this was at a time when she was not sleeping and experiencing pain due to her hip injuries. The combination of these factors meant that she was having difficulties keeping up with the demands of her workload. If the plaintiff had these concerns it is odd that none of these complaints are recorded in the doctor’s notes. It was not until 30 October 1998 (some three months after the accident) that the plaintiff first mentioned to her medical practitioner that she had experienced a fall at home after home modifications. Then she was prescribed panamax.

40 It was the fall on 13 July 1998 that the plaintiff alleges was the significant one which caused her to use crutches and then ultimately required her to use a wheelchair as her means of mobility. The defendant called a number of lay witnesses who worked in the same building as the plaintiff in relation to their observations of firstly, when the plaintiff commenced using one crutch; and secondly the date when she used a wheelchair. All of these witnesses had observed prior to the plaintiff’s alleged accident that the plaintiff had walked with a noticeable limp. They observed that although she walked with a limp and awkward gait these factors did not cause her any problems with mobility. As previously stated the plaintiff and her husband say she used a Canadian crutch two days after the accident. This is disputed by the lay witnesses. The building in which the plaintiff worked contained a number of community based organisations. They shared a common bathroom, kitchen and a meeting room. The lay witnesses namely Ms Grant, Ms Flannigan and Ms Dixon fix the time the plaintiff first started using a crutch in late August or September. The plaintiff in a newspaper article in the Macleay Argus dated 16 July 1999 (Ex Q) stated that she and the wheelchair came together 11 months ago, ie. from August 1999.

41 The plaintiff started using a wheelchair as her sole means of mobility from the end of September 1999. This is common ground between all witnesses. The plaintiff did seek medical advice as to whether it was appropriate to use a wheelchair but rather relied on the advice of her friend Tom Kennedy who is a quadriplegic.

42 Linda Grant who is employed by a disability service gave evidence that she saw the plaintiff four to five times per day. Ms Grant said that the first time she observed the plaintiff using a cane was late August early September 1998. Ms Grant was making a cup of coffee when the plaintiff came into the kitchen using a cane. It was then that Ms Grant asked the plaintiff to be a returning officer at the annual general meeting of the Neighbourhood Centre. As the meeting occurred at the end of September 1998 she places the plaintiff’s use of a cane in late August.

43 Ms Grant has a very clear recollection of the conversation that ensued in the kitchen. Ms Grant said "What have you done?" The plaintiff replied "I've done something silly. I had been to a meeting and was tired. I was standing at the sink and turned to answer a question from my daughter and my hip popped out." The plaintiff never mentioned the accident of 13 July 1998 to Ms Grant. Ms Grant observed the plaintiff in a wheelchair at the annual general meeting of the Neighbourhood Centre which took place on 30 September 1998. She thinks that the plaintiff started using the wheelchair three to four weeks after she had first observed her using the crutch, but it is possible that it was only one to two weeks later. From her observations the plaintiff was getting around quite well with the cane. Ms Grant remembers being surprised at seeing the plaintiff in a wheelchair because she was never aware that the plaintiff had had a fall and the plaintiff had not mentioned anything about the second defendant. Ms Grant said that the plaintiff used two different crutches before she used the wheelchair.

44 Anne Flannigan works full time in Macleay Community Care Options run by the Council. She was a chairperson of the second defendant and worked part time at the Kempsey Respite Centre. Ms Flannigan gave evidence that it was late August 1998 that she first observed the plaintiff with a walking stick or crutch. The crutch was metal with a handle and a brace went around the plaintiff's arm. Ms Flannigan also gave evidence of a conversation she had with the plaintiff. They were making coffee. Jacqui Dixon was also present. After Ms Flannigan observed the plaintiff using a crutch she asked the plaintiff what had happened. They were in the kitchen. The plaintiff replied that she had been standing at the sink washing up when one of the children spoke to her, she turned around and she felt her hip go. The plaintiff did not mention anything about a fall.

45 Some weeks or months later after the kitchen conversation the plaintiff went to Ms Flannigan office to tell her about her fall. The plaintiff told Ms Flannigan that she had tripped on the lip of the bathroom floor and fell. She recounted that her left leg went in front and the right to the back. The plaintiff also told Ms Flannigan that the fall expedited the process that caused her to go into the wheelchair. She said that being in a wheelchair had radically changed her life. During that conversation the plaintiff helpfully advised Ms Flannigan to resign from the second defendant because there would be a legal case as she had seen a solicitor and as a result she was 99% sure that she had a case. Ms Flannigan did act upon this advice.

46 Ms Jacqueline Dixon gave evidence. She had a clerical role in the employ of the second defendant until October 1997. She now occupies a managing role with the second defendant. I found her to be an impressive witness. She gave precise evidence and where she had no recollection or could not remember she said so. Prior to the bathroom modification problems, Ms Dixon and the plaintiff had a conversation about the condition of the plaintiff’s hip. The plaintiff told Ms Dixon she had had operations in the past and had to wear long skirts to cover the scarring on her legs. Ms Dixon said that the plaintiff used two types of crutches. One type of crutch was used by the plaintiff to enable her to get out of the car into her wheelchair. Ms Dixon fixes the time that the plaintiff started to use a crutch as being a few week before the annual general meeting which was held on 30 September 1998, ie. lat August early September 1998. Ms Dixon recalled being in the kitchen with Ms Flannigan, when Ms Flannigan asked the plaintiff why she was using a stick. Ms Dixon also recounted that the plaintiff replied that she was standing at the kitchen sink and she twisted suddenly around as one of her children had called out and her hip had popped (t 179.35; 183.35).

47 When Ms Dixon observed the plaintiff in a wheelchair. She spoke to the plaintiff. The plaintiff told Ms Dixon that she had been standing up all day in a mediation the previous day and due to the prior problem when her hip popped she felt more comfortable in a wheelchair. The plaintiff never at any stage mentioned that she tripped on the lip on the bathroom floor to Ms Dixon. Nor did the plaintiff at any time ever tell Ms Dixon that she had fallen.

48 It was at the end of August 1998 at the earliest when all three lay witnesses observed the plaintiff first using a crutch to assist her mobility. At the end of August the plaintiff told Ms Grant, Ms Flannigan and Ms Dixon that she felt her hip go when she was standing at the sink washing up when one of the children spoke to her and she turned around. When Ms Dixon observed the plaintiff in a wheelchair in September, she was told that she (the plaintiff) had been standing up the previous day and due to the prior problem when her hip popped she felt more comfortable in a wheelchair. Hence the plaintiff had told her co-workers that the significant injury to her hip occurred in late August 1998 when she was standing at the sink and performed a twisting manoeuvre.

49 The plaintiff’s husband stated that after the fall on 13 July 1998 his wife’s condition deteriorated quite rapidly. Critically he fixed the time from when she started using the crutches to the time when she was in a wheelchair as being two to three weeks. The evidence is that the plaintiff stated using the wheelchair in September so if the time sequence given by the plaintiff’s husband is correct it would mean that the plaintiff started using the crutches in late August 1998. This is consistent with the lay evidence. I prefer the lay witnesses evidence to that of the plaintiff and her husband on the issue as to when the plaintiff commenced using in crutch to assist with mobility. It is my view that the plaintiff commenced using a Canadian crutch in late August 1998 at the earliest and not in mid July as was stated by the plaintiff and her husband.

Did the plaintiff trip on the bathroom entrance on 13 July 1998

50 The plaintiff obtained a referral to Dr Ruff her treating orthopaedic surgeon on 15 July 1998. The general practitioner’s notes of 15 July 1998 do not record the fall on 13 July 1998. There is no record of either incident on 13 July 1998 or 15 July 1998 in the doctor’s notes of 21 August 1998. Nor do medical reports record that the plaintiff was using a crutch for mobility during this time. The plaintiff’s first recorded mention of her fall of 13 July 1998 is contained in the general practitioner’s notes in October 1998. Then there is the puzzling aspect of how the plaintiff tripped at the entrance, fell but her foot ended up 1.8 metres inside the bathroom.

51 I would have had serious reservations in accepting the plaintiff and her husband’s evidence that the plaintiff fell at all on 13 July 1998 if there had not been the contemporaneous record namely her letter to the Department of Housing of 15 July 1998 wherein the plaintiff particularises that she tripped on the raised entrance to the bathroom. Hence, I accept that on 13 July 1998, the plaintiff caught her right foot on the lip located at the entry into the bathroom which caused her to lose her balance and fall. She suffered injuries but the nature and extent of those injuries is in dispute. It will be discussed later in this judgment.

52 The plaintiff’s most significant injury to her right hip occurred in August 1998 when she twisted to speak to her daughter. The plaintiff and her husband spoke of a turning action when she was opening mail on 15 July 1998. I do not accept that this occurred on 15 July 1998 but rather it occurred in August 1998 and it was after this accident that the plaintiff needed to use the Canadian crutch for mobility. Also it must be taken into account that two months prior to the accident the plaintiff suffered immense and chronic physical pain when cleaning up after the builders. Hence she was not pain free prior to the fall on 13 July 1998.

53 I turn now to consider whether the second defendant was in breach of the contract between itself and the plaintiff and/or was negligent.

Correspondence and inspections between the plaintiff and second defendant concerning the bathroom renovations

54 On about 22 May 1998 the plaintiff approached Ms Dixon with the complaints about the modification work to her bathroom. The plaintiff complained about the workmanship in a generalised manner and said that she had no faith in Mr Usher and the workmanship of the second defendant. The plaintiff called up Ms Dixon a few days later. She requested that Ms Dixon come to her house and inspect the work. Although it was not Ms Dixon's role to carry out inspections she decided to go and have a look and try to smooth things over and fix the problem as they all had to work together in the same building. Sometime during the week of 21 to 26 May 1998 Ms Dixon inspected the bathroom. Ms Dixon was unimpressed with the work and told the plaintiff she would take the matter to the management committee in an attempt to try to bring the matter to a resolution. She passed the complaint about Mr Usher’s onto the committee.

55 On 26 May 1998 Mr Ken Smith the secretary of the second defendant gave evidence that at the request of Ron Usher he visited the plaintiff's house to inspect the bathroom modifications being done by the second defendant and he offered to have some rectification work carried out. No mention was made as to the height differential at the entrance to the bathroom. However, the plaintiff indicated that she was not satisfied with the proposal. On 4 August 1998 Doug Small who was the vice chairperson of the second defendant and Keith Smith returned to the plaintiff's house for a further inspection. The plaintiff was not there but her husband Jim was. A number of issues were raised but no mention was made of the lip between the hallway and the bathroom entrance.

56 The management committee of the second defendant received the plaintiff's detailed letter of complaint dated 12 July 1998. The chairperson of the second defendant wrote to the plaintiff letters dated 27 July 1998 and 10 August 1998. The letter of offer of 10 September 1998 to the plaintiff is referred to in more detail later in this judgment.

57 It is common ground that the modification work carried out on the plaintiff’s bathroom can best be described as shabby. The plaintiff had also forwarded a letter of complaint to the Department of Housing dated 15 July 1998 (that is after her accident). With the complaint she annexed a report from a tiler Mr R Ford (Ex G) (no relation to the plaintiff or her husband). The report of Mr Ford stated that the tiling was badly set out from the beginning and detailing other deficiencies. Mr Ford recommended that it was not possible to rectify the work and that the work would need to be completely redone. The Department of Housing referred the matter to the Aging and Disability Department who now had responsibility for Home Modification Services. The Department obtained a report by Mr Des Herriman from the Department of Housing, Coffs Harbour regional office and asked the second defendant to report on the action they had taken in response to the complaint.

58 On 10 September 1998 the Chairperson attached a report from Mr Des Herriman who reported to the second defendant on the actual job carried out on the dwelling. He reported that a 25 millimetre "step" or "lip" existed at the bathroom entry doorway, where the floor tiling on a mortar bed, was higher than the hall floor. A simple timber "fillet ramp" would have overcome the tendency for tripping on this obstacle. There are two photographs which show the step between the hallway and the bathroom floor. (Ex F). The existing sliding door encroached into the effective doorway opening, and reduced an already narrow clear opening. The door could be adjusted to open fully, flush with the doorway reveal lining to give maximum entry width. Mr Herriman reported that none of the "modifications" materially assisted the plaintiff in the short or long term, but merely upgraded the bathroom from its original condition. It was Mr Herriman’s opinion that no consideration had really been given allowing for the plaintiff's present level of disability, nor an insight into her future needs should her condition deteriorate. He concurred with the plaintiff and Mr Robert Ford's account of the standard of work performed. Mr Herriman agreed that the work was of a very poor, unprofessional standard. He considered that all of the tiling carried out was not of a reasonable professional standard. He also recommended a wider bathroom entry doorway would be advantageous for access from the existing hallway.

59 After receipt of Mrs Ford’s and Mr Herriman’s report the second defendant by letter dated 10 September 1998 made the an offer to the effect that Macleay Home Modification will pay for the replacement of materials that were part of our original contract and the work was to be carried out by a tradesperson of her choice. However prior to any work being undertaken the plaintiff was required to swap cheques with the second defendant for the newly quoted price and for the original quoted price. She would have their cheque for the rectification work and the second defendant would have the cheque for the original work. On 30 October 1998 after receiving no reply to the previous letter the committee wrote a further letter to the plaintiff in an attempt to resolve the matter and requesting a response. No response was received to this letter.

60 Mr Usher was the representative of the second defendant who had conversations prior to and upon entering into the contract for the plaintiff’s bathroom renovations. Mr Usher could have been expected to give the true complexion of the conversations and the quality of the workmanship of the bathroom renovations. Mr Usher was not called as a witness by the second defendant. While he is no longer employed by the second defendant there was no sufficient explanation given to the court for his absence. Hence an inference should be drawn that his evidence would not have assisted the plaintiff. (Jones v Dunkel (1959) 10 CLR 298.

Breach of contract

61 The plaintiff alleges that it was an implied term of the contract that the works would be carried out in a proper and workmanlike manner and because this was not done the second defendant was in breach of the contract as between the plaintiff and the second defendant. As a result of the negligence of the second defendant the plaintiff alleges that due to the injury to her right hip she is confined to a wheelchair. In relation to the second defendant’s submission that contract takes precedence over tort. In Astley & Ors v Austrust Limited (1998-99) 197 CLR 1 the High Court stated:

62 In Astley it was held that the plaintiff has the choice whether to sue in tort, contract or both. It was also held that in contract there is no reduction in damages for contributory negligence. However, subsequent legislation, the Law Reform (Miscellaneous Provisions) Amendment Act has altered the law under Astley. Where there are concurrent and co-extensive claims for negligence and breach of contract, the breach of contract damages are to be reduced for contributory negligence. The second defendant’s submission on the primacy of contract fails.

63 It was obvious to the co-workers who gave evidence that prior to the accident, the plaintiff walked with a noticeable limp. I infer that Mr Usher had likewise made this observation as he worked with the plaintiff, who was an occupant in the same building and more relevantly was the one who considered that she was eligible for the second defendant’s assistance. Even though the plaintiff provided the bathroom tiles of her choice, a reasonable tradesperson would have in these circumstances explained to the plaintiff that there would be a distinct lip on the entrance to the bathroom which would necessitate her to step up to enter the bathroom. Alternatively the second defendant could have included the simple timber fillet ramp when they designed the renovations or devised a way to make the tiles flush with the hallway floor. However, this may not be a reasonable response to the risk because it is not known whether this alternative would be inexpensive or simple to implement.

64 In relation to whether or not there has been a breach of contract, the contract implied that the renovations would be performed with reasonable care and skill. I accept the evidence of Mr Herriman and Mr Smith. I find that the bathroom renovations were not performed with the reasonable care and skill of a reasonable and experienced tradesperson. In particular Mr Herriman considered that where a 25 millimetre “step” or “lip” existed at the bathroom entry doorway there should have been a simple timber “fillet ramp” that would have overcome the tendency for tripping on this obstacle. This is what a reasonable tradesperson would have done when he was carrying out work for a person that he knew had one leg 5 centimetres shorter than the other and walked with a marked limp.

Negligence

65 The second defendant owed a duty of care to the plaintiff. The nature of that duty was to carry out the bathroom renovations to the reasonable standard expected of a tradesperson. As previously stated, Mr Usher an employee of the second defendant and knew that the plaintiff walked with a noticeable limp. The defendant specialised in carrying out home modifications for the frail and disabled. He should have taken the plaintiff’s needs into consideration when he designed the modifications even though the plaintiff did not request that he treat her as being disabled. In particular, the second defendant should not have created a 1 to 1½ inch discrepancy between the lower hallway floor and the entrance to the bathroom. The risk that the plaintiff with a leg differential of 5 centimetres and walked with a marked limp could trip on the raised bathroom entrance was real and foreseeable. By way of response to the risk the second defendant could have provided a timber filler which is inexpensive and simple to fit. I find that the second defendant breached the duty of care it owed to the plaintiff and was negligent. The damages flowing from the breach of contract and the negligent act are identical. However, the second defendant has pleaded contributory negligence. I shall briefly consider this issue in the event that I am wrong in relation to there being a breach of contract. The more difficult issue is what damages are caused by the breach of duty of care.

Contributory negligence

66 In considering the question of apportionment the court is required to reduce the damages recoverable "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". The inquiry is not concerned with the cause of the accident but with the cause of damage - see Froom v Butcher [1976] QB 286 at 292-293. Contributory negligence is measured by the failure of the plaintiff to take reasonable care for his own safety - see Gunning v Fellows (1997) 25 MVR 97 at 99. It is the degree of departure from the standard of care of the reasonable man, - see Pennington v Norris (1956) 96 CLR 10 at 16. Therefore it is an objective test and not subjective but as applied to someone such as the plaintiff. The standard of care is to be measured against that of ordinary prudence - Sungravure Pty Limited v Meani (1964) 110 CLR 24 at 36.

67 The second defendant alleges that the plaintiff contributed to her own damage by firstly, after complaining to the second defendant about the quality of the work which had been performed, refused to allow the second defendant then to take remedial action to rectify any alleged problems; secondly, by refusing access to the second defendant’s contractors; thirdly, by refusing to accept contractors whom had been submitted by the second defendant to perform remedial work; fourthly, by refusing to co-operate with the second defendant to ensure that the work which was allegedly defective was rectified; fifthly, by placing herself in a position of peril by being unco-operative and refusing assistance offered to her by the second defendant; and sixthly, by failing to take sufficient care and precaution for her own safety. In relation to the first five allegations, the offer to rectify the poor workmanship by use of an independent tradesperson was not made until 10 September 1998, ie. after the accident occurred. On 26 May 1998 the plaintiff did allow Mr Smith of the second defendant to inspect the renovations. He offered to have home rectification work carried out but work to the entrance to the bathroom was not discussed. It is my view, due to the poor quality of workmanship the plaintiff was entitled to refuse to allow the second defendant carry out further work. The remaining allegation is that the plaintiff did not take sufficient care and precaution for her own safety. She did take care and precautions for her own safety. It is my view that the plaintiff’s actions did not cause her damage and no reduction should be made for contribution.

Plaintiff’s condition after the accident

68 The main issue in this case is what are the nature and extent of the plaintiff’s injuries that were caused by the accident on 13 July 1998. As previously stated, it is my view that the significant injury that caused the plaintiff to use the crutch and ultimately a wheelchair occurred in August 1998 not the July 1998 accident, the subject of these proceedings. Her congenital hip problem had already been causing her difficulties because she had also been suffering immense and chronic physical pain in her hips two months prior to the accident in May 1998.

69 I attribute most of the plaintiff’s injuries to the twisting incident on 13 August 1998. Nearly all of the plaintiff’s evidence of her condition after the accident on 13 July 1998 are attributable to the August twisting incident other than the three days of nagging pain and some continuing tenderness and soreness in her right hip joint. There is medical evidence to suggest that the plaintiff’s symptoms should have been experienced immediately after the trip on 13 July 1998 and most of those symptoms should have resolved within days. I shall refer to the medical evidence in more detail later in this judgment. The plaintiff gave evidence that after the accident she was not coping well and was not sleeping. She experienced severe pain to her pelvis, pain in her right hip radiating down her right leg. She had various sorts of pain, such as bone pain and nerve pain. She had a stabbing knife pain which went from the muscle into the bone. The stabbing pain hit her in the right thigh and travelled down her right leg. She experienced tingling sensations in her right leg.

70 She gave evidence that she desperately needed the income so she continued on as best she could in the job despite the pain. She feels that she did not perform as well as she did prior to the accident because she put off doing any job where she had to get up onto her crutches and move around the office, such as doing any photocopying. Also because of her loss of sleep she had difficulty concentrating. The plaintiff described it as like being in a bad dream. She chose to attend essential meetings but did not attend the annual conference in Sydney because the thought of having to go by train by herself was too daunting. The plaintiff continued on with crutches as one day she attempted to cross the road without them and she felt like her leg would collapse from underneath her. She said that persevered with the crutches because she thought that her hip had only be jarred and it would improve with time. She persevered for a few weeks.

71 The plaintiff described Jim, for want of a better term, as her foot soldier. He would drop her off at work and then call into the office at 11.00 am to collect the mail from the post office each morning, get cheques which had been signed in different buildings, distribute and mail. The plaintiff's husband similarly described his role in helping her perform these tasks at work. She avoided visiting people and organised meetings in her office even though it was small, rather than, as she had previously done, gone to their offices.

72 The plaintiff gave an example of how her work was effected by her loss of mobility. Prior to her accident the plaintiff had organised a drug and alcohol free youth dance party. She organised the funding and had about 30 to 40 volunteers. The event was sold out and between 700 and 800 kids attended. It worked well and there were good reports received. She was approached by the Premier's Department who was willing to fund another event. However, this time the party was not as successful because she was now in a wheelchair. It was difficult for the plaintiff to visit schools and do all of the running around which was required. She had to rely on Jim and other volunteers and she found that they did not carry out everything that she had wanted.

73 The plaintiff became unable to drive. Once the plaintiff became wheelchair bound she could not use her small manual motor vehicle because she would have to disassemble her wheelchair and put it into the back of the car with the back seat down. That meant that her two children could not travel with her. She had stiffness in her right leg and a loss of sensation in her right leg so if was difficult to drive a manual vehicle. She found that she could not shop as she could not push the trolley nor could she reach up high to obtain items on higher shelves. She could not make beds, vacuum, dust cook and found herself mentally and physically exhausted. She experienced pain on a daily basis and continued to work in chronic pain because she did not want to take time off. The children had to help her put her shoes on and underpants on. She could not get into the bath and had to have Jim help her dry herself. The family situation which had been previously happy was no longer happy. Her children were not happy and she felt that Jim was a slave to her needs and she did not like to having to give orders.

74 In May 1999, the plaintiff resigned from the Neighbourhood Centre. On the some days when the pain was too bad she would have to go home but she would put in extra hours when she was not in as much pain. She had lost her drive and motivation. The plaintiff stated that she was too exhausted and unable to carry out the evaluations but she still participated in team meetings. Although she was taking medication the plaintiff felt that it was not helping. She ceased her consulting work.

75 Jim and her children were all miserable. He separated from her and went to Sydney for an open ended break. The plaintiff's husband gave evidence that the main reason that he left the plaintiff was that he had previously been an outdoors/labouring type of person but for the prior 12 month period he had played “fetch and carry” for the plaintiff. He felt that the plaintiff was of the mindset where she did not appreciate his efforts. He said that she had become very negative towards people. Unless she changed he was not prepared to return.

76 The plaintiff did not go to outdoor activities such as picnics, collecting shells and bush walks. Jim and the girls would go out and do that and the plaintiff would stay in bed. She had no quality time with Jim. In the plaintiff’s own words she had turned into a "bitch". After the plaintiff resigned from employment she put the house on the market because it was wheelchair unfriendly. The front and back steps were difficult to negotiate. The house sold within a week without the need for advertising She and the girls moved into a flat that was organised through a community based housing organisation. The flat was wheelchair accessible.

77 Despite her problems outlined earlier, from July 1999 until December 1999 the plaintiff accepted employment with the Department of Juvenile Justice as an acting clerical officer. While her previous work had been fulfilling and stimulating, she felt that in this position she could not use her resources and skills. The duties involved data entry, folding pamphlets and sorting the mail. The plaintiff felt that reflected the extent of her capabilities and she would rather not be there. She resigned in November/early December. Around that time she perceived that other people had thought she had lost her brain. She had put on weight due to loss of mobility and effect of medication. Her self esteem suffered. She became frustrated, snappy, nasty and she withdrew emotionally. She could no longer go to the movies because they were inaccessible nor did she have the finances. The plaintiff sold her Toyota Starlet car and bought a 12 year old automatic Ford which had room for a wheelchair and the kids. The plaintiff gave evidence that she only drives when it is imperative. Jim gave evidence that while the plaintiff still drives he does not consider her to be a safe driver due to the condition of her right leg.

78 When Jim returned to the plaintiff in November 1999 they had a serious discussion about their future as a family unit. It was agreed that Jim would join the Army and that they would marry. The plaintiff accepted that she would have moved to Darwin whether or not she had been involved in the accident. Her husband had been out of the Army for four years and had been unable to find full time employment in the Kempsey area. Her husband was sworn into the Army on 10 December 1999 and posted to Darwin. He is currently serving a four year openended engagement. The Army provided accommodation which is a house that is wheelchair accessible on a level block. This house is to be sold but arrangements have been made by the DHA for the family to move into wheelchair accessible accommodation. They pay the normal subsidised rent to the DHA. While it is difficult to forecast where Jim’s career in the Army will take him, at this stage the plaintiff's husband expects to remain in Darwin until 2001. Then he will most likely be transferred to Sydney 2001.

Current situation

79 The plaintiff’s emotional health has improved. She now undertakes recreational activities although she needs Jim's assistance. She has been to family picnics at Curtain Falls. The plaintiff could not use her wheelchair so she climbed on Jim's back and he carried her. She says now she could go to the movies by herself or with friends. However, she does not attend morning teas organised by Army wives because she is apprehensive that people will attempt to help her and tip her out of her wheelchair. She thinks that their houses are generally wheelchair inaccessible.

80 The Riedel Services Investigation reports dated 3 June 2000 and 18 June 2000 (Ex U) are consistent with the plaintiff’s evidence. The plaintiff was observed attending the Greek Glenti Festival with her two children on 11 June 2000. She wheeled herself around in the wheelchair. The plaintiff drove to and from the festival, had the children assist her put the chair into the car. When she returned home she was observed walking into the driveway area for a few seconds. She was walking with a pronounced limp and appeared to be restricted in her movements.

Medical evidence

81 Aside from the issue of what injuries were caused by the fall on 15 July 1998 there is a further medical issue between the doctors namely whether or not the plaintiff would have been wheelchair bound within 5 to 10 years due to deterioration of the congenital condition in her hips even if the accidents had not occurred. The plaintiff tendered medical reports of Dr Stenback dated 25 January 1999, Dr Ruff dated 24 March 1999, an x-ray report of Dr Miller of 14 October 1998, Max Ellis a surgeon of 12 April 1999 and 4 October 2000 and Dr Champion dated 5 July 1999 (Ex N). Dr Ellis gave evidence and was cross examined. The second defendant tendered reports of Associate Professor Richard Jones dated 25 March 2000 and Dr Rowe of 12 April 2000 (Ex 3).

82 The starting point is the x-ray report of Dr Miller dated 14 October 1998. It stated that the left hip is markedly dysplastic and appeared chronically dislocated, ie. there is no proper acetabulum and the hip could not be held by any hip socket of the head of femur. The congenital condition of the left hip is not disputed. The acetabulum was shallow and irregular, consistent with congenital hip dislocation. Dr Miller stated that the changes on the right were less severe. The acetabulum and femoral head were dysplastic but appeared normally located. No fracture was seen. Dr Miller does not mention the presence of osteoarthritis in either hip joint. However, Drs Ruff and Ellis viewed the presence of osteoarthritis in this x-ray.

83 None of the doctors were given the history that accords with my findings. They were given a history that the plaintiff firstly had been born with bilateral congenital hip displacement; secondly, suffered in the fall on 15 July 1998; and thirdly two days later a twisting incident occurred. The plaintiff did not tell any doctor that she suffered immense and chronic pain in May 1998 nor that the turning incident occurred at the end of August 1998. Thus they were not told that the fall on 15 July 1998 did not necessitate the use of crutches to assist with mobility.

84 Dr Ellis gave evidence that in the absence of the fall she would have been likely to remain ambulatory (t 956.55) (also see his report dated 4 October 2000). His rationale was that before the accident she was well in that she worked doing three jobs, had no pain in either hip, did not need medication and there was no numbness, pain or paraesthesia in her leg. Other factors was that she was relatively young and she could stand without difficulty. The scoliosis, pelvic tilt and paraesthesia in her left toe would have had a progressive effect on her condition. Dr Ellis conceded that it was possible that the developing osteoarthritis in her right hip would have produced spontaneous pain even in the absence of the intervening trauma. According to Dr Ellis the plaintiff’s left hip joint that was previously asymptomatic is now suffering similar aggravation of degenerative change and there is less sciatica as a result of the fall in July 1998.

85 He assessed the permanent impairment of the right lower limb at present being 60%, but of that 60%, 30% was pre-existing as a result of a previous congenital dislocation and multiple operations. Likewise he assessed the permanent impairment of the left lower limb at 60% and then the pre-existing disability at 40%. On the fall itself he said that the tearing sensation felt by the plaintiff in her right hip indicated a soft tissue injury and these soft tissue injuries are integral to the stability to the joint (t 111.45). However Dr Ellis expected that if she suffered trauma the onset of her symptoms would be almost immediate. However Dr Ellis reiterated that the ultimate prognosis without the intervention of the fall was extremely difficult to predict. However he said it was likely she would have gone 5 to 10 years without significant pain and discomfort, but she could have had similar problems to what she is now experiencing after 10 years. (t 110.50).

86 Dr Ellis said that the cause of the pain, numbness and paraesthesia in her legs has not been clarified but the probable cause of pain in her lumbar spine is due to nerve root irritation. According to Dr Ellis the paraesthesia that the plaintiff experienced in 1983 in her left toes suggests that at that time there was already some friction operating on her sciatic nerve. Dr Ellis attributed the sciatic pain in her limbs being caused by the traction of the sciatic nerve and to the inequality of leg length was likely to effect the sciatic nerve root. He viewed her fall on 13 July 1998 as being significant because it predisposed her to pain and further weakness in her right leg. This in turn predisposed her right leg to instability.

87 All doctors accepted that the plaintiff needed to use a wheelchair as a means of mobility. Dr Ruff is the plaintiff's treating orthopaedic specialist. Unfortunately (as previously stated) Dr Ruff’s 1992 notes were not tendered in evidence. Dr Ruff in his report dated 24 March 1999 recorded that he saw her in October 1998 but does not mention her 1992 consultation. He noted that the plaintiff said everything has been fine for years until she tripped over the lip in front of the bathroom door and she felt a tearing sensation in her right hip which was sore for two days. He recorded later when she twisted the right hip gave way producing severe pain which necessitated the use of crutches. Ultimately because of the persistence and progression of the pain she needed to use a wheelchair.

88 Dr Champion examined the plaintiff on 18 March 1999. The plaintiff told Dr Champion that on 13 July 1998 she fell, but landed mainly with her hands on the bath tub and then got onto her knees. She felt a pain like a rip in the right hip region as she fell forward. Prior to the fall on 13 July 1998, he held the view that the plaintiff had a normal right hip with some osteoarthritis as a consequence of the congenital dislocation of the hip. He noted that she had a shorter left leg. He said that he thought that the disability caused by the accident was of a permanent nature. He also viewed the consequences of the injury of 13 July 1998 “seem to be profound”.

89 Dr Champion stated that that the plaintiff had evidently acquired or grossly aggravated not only substantial symptomatic aggravation of the osteoarthritic disorder at the right hip consequent upon the hip replacement, but also the development of neuropathic pain and related disability in the right leg. He thought that further investigations should be carried out to find the source of the neuropathic pain. Dr Champion said not only had there been increase in pain related disability in respect of the right hip, due to the newly acquired radicular/peripheral neuropathic disorder in the right leg, but there had been secondary consequences on the left dislocated hip region with increased pain related disability. Dr Champion viewed the plaintiff as being able to earn an income but there would be limitations due to reduction of mobility and the increase in difficulty in and obtaining and maintaining suitable jobs.

90 It was Dr Rowe’s view that if plaintiff's history is accepted, it would appear that the fall has rendered a symptomatic arthritic change in her right hip, which had resulted from her congenital dysplasia. He said that the plaintiff's current status would have been inevitable but the injury has dictated the onset of such symptoms. He said that in the absence of this injury the plaintiff may not have developed such symptoms for about five or ten years. This accords with the view of Associate Professor Jones.

91 Associate Professor Jones says that the x-rays of the right hip showed degenerative changes and there were no x-rays to show that this hip is in a dislocated position. Associate Professor Jones said that he believed the plaintiff’s statements about her independent personal care and most activities in daily living. He believes that the plaintiff would be employable in full time work duties to which she had become skilled and the day to day domestic chores from a wheelchair would be within her capacity. However, when the plaintiff returned to full time duties then she would require two to three hours of domestic assistance per week to undertake the heavier household chores which she might find difficult.

92 The plaintiff’s case on damages at the highest is that assessed by Dr Ellis and the loss of her right lower limb is assessed at 30% and loss of use of left lower leg at 20% which is attributable to the accident on 15 July 1998. Dr Rowe, Dr Ellis and Associate Professor Jones agree that the plaintiff’s degenerative changes would have occurred in the back and hips whether the fall described had of occurred or not. Instability would have been part of her congenital hip dysplasia. Dr Ellis disagrees that it would. Dr Row and Associate Professor Jones stipulated that the plaintiff would have the need to use a wheelchair due to her congenital condition within five to ten years. Whereas Dr Ellis thought it would have been later than ten years. Associate Professor Jones declined any authoritative comment as to the plaintiff's direct nexus between the aggravation of her right hip and the fall of the 13 July 1998 other than to say that he would have expected that the musculo-ligamentous contusion would have resolved within a passage of time.

93 In relation to what damages should flow from the 13 July 1998 accident in view of her pre-existing congenital hip problem and her subsequent injury, I am assisted by a decision of the Court of Appeal Jefferies v Roads & Traffic Authority of NSW, unreported 28 November 1997. Mason P (with whom Stein JA agreed) referred to a passage from the State Government Insurance v Oakley (1990) Aust Torts Reports para 81-003 at 67,577 with approval. This passage deals with the situation where the plaintiff suffered a subsequent injury. Malcolm CJ in Oakley said:

“In my opinion, where the negligence of a defendant causes an injury, and the plaintiff subsequently suffers a further injury the position is as follows:

(1) where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; …”

94 The plaintiff submitted that if the accident had not occurred she would never have required a wheelchair in her lifetime. This does not accord with what the plaintiff told her co-workers nor with the medical evidence. At some time in the past the plaintiff had been given medical advice that she would need to use a wheelchair in the future. I prefer the views of Associate Professor Jones and Dr Rowe that the plaintiff would due to her congenital condition, develop symptoms which necessitated the use of a wheelchair within five to ten years.

95 It is my view that the injury which results from the August 1998 twisting incident would have been the cause of a significant worsening of her hip condition. Dr Rowe and Associate Professor Jones expected that if the plaintiff suffered trauma in her fall the onset of her symptoms would have been immediate. She told Dr Ruff she was in pain for two days after the July fall. It was Associate Professor Jones’ opinion, which I accept, that he expected that the musculo-ligamentous contusion would have resolved with the passage of time. This most likely occurred before the use of the crutch became necessary in late August 1998, ie. after the twisting incident in August. After the plaintiff tripped in July 1998 her evidence was that she had insistent nagging pain for three days but that pain largely resolved. By July 1998 the plaintiff’s hips had already become unstable as in May 1998 she complained of suffering from immense and chronic pain in her hips. No permanent additional instability to her hips resulted from the fall in July 1998, nor was the damage sustained in August 1998 significantly greater because of the July 1998 fall. It is my view the injury caused on 15 July 1998 had almost fully resolved by August 1998.

General damages

96 The plaintiff submitted $175,000 is an appropriate amount for general damages. I have taken into account that the plaintiff suffered insistent and nagging pain in her right hip for three days and some tenderness, soreness and bone aches in her right hip joint. Those symptoms had fully resolved prior to the twisting incident that occurred at the end August 1998. I allow general damages in the sum $25,000.

Interest on general damages

97 $25,000 at 2% x 2.5 years = $1,250. On the basis that this is calculated using a simple interest matrix.

Out of pocket expenses

98 The parties agree on the mathematics but not the need for the wheelchair. The sum for past out of pocket expenses is $4,418.55 which includes the custom made wheelchair from Mogo Wheelchairs Pty Limited which cost $3,139. (Invoice dated 3 December 1998 - Ex O). It is my view that the plaintiff’s fall on 13 July 1998 did not cause her to use a wheelchair. I disallow the sum of $3,139. I allow $1,279.55.

Past and future economic loss

99 To reflect the possibility that the plaintiff would have found herself in a wheelchair due to her pre-existing disability she submitted that the vicissitudes should be reduced by 25% not 15%, the plaintiff claims no past economic loss until 1 March 2000. The plaintiff's case is that she would have gone to Darwin in any event. From 2 March 2000 the plaintiff claims $500 per week. The plaintiff's tax returns (Ex 13) showed her taxable income for the year ending 30 June 1997 as $17,739, for the year ending 30 June 1998 as $19,449 and the year ending 30 June 1999 as $33,164. The plaintiff also claims that she would have earned approximately $500 net per week prior to the accident. The plaintiff submitted that she should be entitled to study full time to complete her degree at university, so she should received $500 per week for that period. $500 per week at 3% = $50,650. The plaintiff submitted that she has a 50% residual earning capacity of 50% ie., $250 net per week - 29 years at 3% at $2150 per week multiplier 1000 = $187,500.

100 For the reasons given earlier, it is difficult to determine the precise effect the accident of 15 July 1998 had on the plaintiff’s earning capacity other than to say that I am satisfied on the balance of probabilities, that the symptoms she suffered were of short duration and did not cause any further permanent disabilities. In order to best do justice, the appropriate method to adopt in assessing economic loss is to allow a global sum to represent the plaintiff’s loss of earning capacity for the past and future. Most of the pain and suffering occurred immediately after the accident I allow $10,000 for past economic loss as the pain in her hips was immediate after the accident and then largely resolved. Interest on past economic loss $10,000 @ 10% for one year and halved, this equate to $500. For future economic loss to reflect that there may have been some minor symptoms that were residual I allow $5,000.

Past superannuation

101 The plaintiff claim 50 weeks at $30 = $1,500. The second defendant makes no allowance for past superannuation. I allow the sum of $1,000. The plaintiff claims $23,625 for the future loss of superannuation. The second defendant makes no allowance for future superannuation. I allow the sum of $450 for future loss of superannuation. The total allowed for loss of superannuation is $1,450.

Past and future domestic assistance

102 To determine the applicable amount to be awarded for domestic assistance it has to be identified which services the plaintiff would reasonably need as a result of the defendant's wrong. Or expressed another way the plaintiff is to be compensated for the loss of her capacity to took after herself which was caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327. The principles were recently restated by the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319. The plaintiff claims $93,600 for past care comprised of 117 weeks at $800 per week = $93,600.

103 The plaintiff can now cook simple meals and wash the clothes and put them in the dryer. She cannot peg clothes on the line. If the items are heavy such as duvets she leaves them to the weekend so that Jim can help her. She can vacuum and clean the benchtops. She described the situation where her younger daughter had a party but basically had to assist with the preparation of the food. She is unable to clean windows, lights, fans, baths and toilets. She cannot mow the lawns or do the gardening. Prior to the accident she did little gardening and never mowed the lawn. When Jim moved in he took over the outside work. She previously could do the housework in about 1 to 1½ hours prior to the accident but now it takes her hours. She seeks to avoid rotational movement with her hips because it causes pain. If she experiences pain after carrying out housework she goes and floats in the pool and she finds that this relieves the pain. The plaintiff's husband gave evidence that if the plaintiff experiences good sleep and is not in a lot of pain, she can stand for a period of 10 to 15 minutes, return to the wheelchair and than can stand for another period of 10 to 15 minutes for several periods over a day.

104 The plaintiff still cannot shop and the girls have to go shopping with her and get things down and push the trolley. She could go to the shop to buy some bread and milk provided can put in on her lap. When Jim is away with the Army the plaintiff is unable to do the outside work and she taught the girls to use the mower. The current garden has a lot of palms which regularly drop fronds. She pays the girls pocket money to clean up the back yard. As for the reasons previously given, the plaintiff’s disability caused by the accident on 15 July 1998 was not significant and the plaintiff’s disabilities both after the accident and now are related to the late August 1998 twisting incident. In accordance with Malec v Hutton (1990) 169 CLR 638 an award for damages should reflect this possibility. However, doing the best I can, it is appropriate to make a small allowance for past and future domestic assistance. A reasonable sum to allow under this heading is $10,000 to reflect both past and future domestic assistance.

Home alterations

105 The plaintiff claims $98,000 as detailed in the reports of Professional Injury Management dated 11 March 1999 and Trevor Bums Constructions dated 2 April 1999 and 13 October 2000 (Ex F). Trevor Bums is a certified builder. The second defendant relied on the report of Peter Hardiman and Associates Pty Limited dated 11 October 2000.

106 The Trevor Bums Constructions report's recommendations are of very limited use as they specifically relate to the Kempsey premises where the plaintiff not longer resides. For the next 10 years while the plaintiff's husband remains in the Army, the DHA will provide a wheelchair accessible dwelling for the family. The plaintiff submitted that nevertheless, she still should be entitled to house modifications during this period. To compensate the plaintiff for this would give the plaintiff a windfall.

107 Peter Hardiman, an architect has made some generalised recommendations as to the plaintiff's accommodation requirements in relation to the Kempsey property. These include changes to the bathroom, kitchen and laundry. It includes external ramped access. Some of his report pertains specifically to the Kempsey premises and is also of limited use. These reports can be used as a guide. If the plaintiff's husband leave the Army or for some other reason in the future the plaintiff needs to obtain private accommodation, she will probably need to have ramps, alterations to the kitchen, laundry and bathroom carried out. The modifications in both reports cost about $40,500. It is my view that the injuries and disabilities caused in the accident of 15 July 1998 did not give rise to the need for home modifications. Accordingly I do not make any allowance for this item.

Motor vehicle modifications

108 The plaintiff claimed $6,895. The defendant made no provisions for the costs of modifying the plaintiff’s motor vehicle on the basis that she can drive her automatic vehicle adequately and does not need these modifications. I disagree with the defendant’s submission, the plaintiff does require a modified vehicle but the need did not arise from the accident of 15 July 1998. I disallow this item.

Future treatment and medication

109 The plaintiff takes daily medication of Panadol and Nurofen. She estimates that this costs on average $10 per week. This includes a herbal remedy and necessitates a visit to the general practitioner every 21/2 to 3 months. If the medication is not working she needs to see the general practitioner more regularly at a cost of $41 per visit. The need for painkillers does not arise from the accident on 15 July 1998. I do not make any provision for future treatment and medication. It was appropriate to make an allowance for painkillers in the past but this has been done under the heading “out of pocket expenses”.

110 The plaintiff does not wish to undergo reconstructive procedures for pain relief in the future. The doctors did not view further operations with enthusiasm. Dr Ruff thought that the right total hip arthroplasty is feasible but should be deferred to see if the symptoms that the plaintiff is currently enduring resolve spontaneously. However, the plaintiff may change her mind in the future. The cost of reconstruction is $20,000. It is unlikely that the plaintiff will undergo hip reconstruction. The accident of 15 July 1998 nor the fall on 15 July 1998 hastened the operation. I do not think that it is reasonable to allow any amount under this heading.

Future equipment

111 The plaintiff claim for a new wheelchair every six years at $10 per week. $10 x 1380 =$13,800. The defendant submitted that an appropriate amount for a new wheelchair as a curative apparatus for pain relied plus costs of maintenance for 10 years was $4,000. The fall on 15 July 1998 did not cause the plaintiff to need a wheelchair. I disallow this item.

112 I assess the plaintiff’s damage at $54,479.55. I enter judgment accordingly. Costs are reserved.

JUDGMENT

(1) The second defendant is to pay the plaintiff the sum of $54,479.55.

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Last Modified: 03/20/2001

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Citations

Ford v State of NSW [2001] NSWSC 145

Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

0

Hadid v Redpath [2001] NSWCA 416

Jones v Dunkel [1959] HCA 9

Pennington v Norris [1956] HCA 26

CITATION:	Ford v State of NSW & Anor [2001] NSWSC 145
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20209/2000
HEARING DATE(S):	9, 10, 11, 12 & 13 October 2000
JUDGMENT DATE:	16 March 2001
PARTIES :	Janel Ford (Plaintiff) State of New South Wales (First Defendant) Macleay Home Modification & Mainteneance Services Inc (Second Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr P Doherty (Plaintiff) Mr S G Campbell QC with Mr M A J Perry (Second Defendant)
SOLICITORS:	Garrett Walmsley Madgwick of Port Macquarie (Plaintiff) Curwood & Partners (Second Defendant)
CATCHWORDS:	Negligence - Damages - Tripping at entrance to bathroom
CASES CITED:	Jones v Dunkel (1959) 10 CLR 298 Astley & Ors v Austrust Limited (1998-99) 197 CLR 1 Froom v Butcher [1976] QB 286 Gunning v Fellows (1997) 25 MVR 97 Pennington v Norris (1956) 96 CLR 10 Sungravure Pty Limited v Meani (1964) 110 CLR 24 Jefferies v Road & Traffic Authority of NSW, unreported 28 November 1997 State Government Insurance v Oakley (1990) Aust Torts Reports 81-003 Van Gervan v Fenton (1992) 175 CLR 327 Sullivan v Gordon (1999) 47 NSWLR 319 Malec v Hutton (1990) 169 CLR 638
DECISION:	(1) The second defendant is to pay the plaintiff the sum of $53,979.55; (2) Costs are reserved.