Forge v Atlantic Cleaning and Security Pty Limited

[2015] NSWDC 37

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Forge v Atlantic Cleaning & Security Pty Limited [2015] NSWDC 37
Hearing dates:	24 and 25 March 2015
Date of orders:	30 March 2015
Decision date:	30 March 2015
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Judgment for the plaintiff for $64,955.87
Catchwords:	Slip and fall, causation, effect of subsequent injuries.
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Hirst v Sydney South West Area Health Service [2011] NSWSC 644 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Donna Forge (Plaintiff) Atlantic Cleaning & Security Pty Limited (Defendant)
Representation:	Counsel: E Welsh (Plaintiff) S Walsh (Defendant) Solicitors: Brydens Law Office (Plaintiff) Thompson Cooper Lawyers (Defendant)
File Number(s):	2014/00063387
Publication restriction:	No

Judgment

1. On 1 December 2011 the plaintiff was injured when she slipped while shopping in the Westfield Shopping Centre at Liverpool. The defendant company was contracted to clean the Centre at the relevant time. The plaintiff has sued the defendant alleging that it was responsible for her fall and that as a result of the fall she has suffered loss and will continue to do so into the future.

2. The action is governed by the Civil Liability Act 2002 (the “CLA”). The plaintiff has claimed damages under the following heads: non-economic loss, past and future medical expenses, past and future domestic assistance and an economic loss buffer for the future.

3. The defendant admits that it was the cleaner and that it owed the plaintiff a duty of care. It denies it breached the duty. The defendant also challenges the extent of the plaintiff’s damages claim.

4. The plaintiff’s background is generally set out in the chronology (Exhibit A). By 2011 she was living with her husband in a four bedroom house in West Hoxton. She was working in a managerial role at Titan Wheels Australia. She remains in the same employment although her title has changed. She earns a gross wage of about $105,000 per annum.

5. The plaintiff said that she shared the housework with her husband before her fall. There were some tasks that she carried out exclusively such as cleaning the bathrooms, vacuuming, sweeping, mopping and ironing. She was also responsible for gardening, although her husband did the lawns and trimming. She and her husband shared the tasks of washing, shopping and cooking.

6. The plaintiff estimated that she spent about an hour a day on maintaining the state of the home during the week and then about four hours on the weekend doing the bulk of the housework.

7. The plaintiff said that she and her husband were keen walkers and water skiers. The latter activity was only carried out in summer and she could not remember the last time she had water skied prior to her fall. The plaintiff was fit and well before she fell. She certainly had no difficulties with her knees.

The fall

8. On 1 December 2011 the plaintiff went to the Westfield Shopping Centre at Liverpool to do her Christmas shopping. It was a Thursday evening. She had travelled straight from work. She was wearing rubber soled “work boots”. She was near Gregory’s Jewellers when she slipped. She said her feet slipped underneath her and she fell onto her knees at the same time falling toward the left. She put her hands out to break her fall. Her knees hit the ground first and she was in instant pain, in particular in the left knee. She said this knee felt like it had been hit with a hammer. The pain was slightly to the left of the kneecap. Her right knee was less painful but the position of the pain was the same as the left knee.

9. The plaintiff said she sat down on the floor after the fall. She then tried to get up using her hands and in pushing off the floor noticed her hands were covered in a “clear”, “greasy” and “slimy” substance. She wiped her hands on her trousers. She also noticed that her trousers were damp where they had been in contact with the floor.

10. The defendant tendered CCTV footage of the period surrounding the incident (Exhibit 1). From this footage it can be seen that a cleaner, with a trolley, does some work in the relevant area a minute or two before the plaintiff slips. It is not possible to see the precise manner in which the plaintiff fell. There was no challenge however to her description of falling on her knees. Her identification of a wet or greasy substance was challenged.

11. The plaintiff’s description of the slimy or greasy substance does not allow for any specific identification of it. Rather the plaintiff says that the cleaner either negligently left some cleaning substance on the floor or did not properly clean a spillage that was already present. Whichever is the case it would demonstrate negligence on the cleaner’s part. Another alleged act of negligence was the failure of the cleaner to leave any warning signs of a wet surface after he had completed his task.

12. The cleaner, Mr Manjeet Singh, gave oral evidence for the defendant. He said he was on duty on the evening of 1 December 2011 but he had no actual recollection of the events. He viewed Exhibit 1 and was able to identify himself as being the depicted cleaner.

13. Mr Singh said that his normal work duties included a 20 minute rotation during which time he was required to deal with any spillages he came across as well as clean the toilets. He said it was a rush and he needed to be quick to complete his rotation. He did, however, say there were other cleaners on duty if he was delayed.

14. Mr Singh identified the cleaning trolley in Exhibit 1. He said it normally contained a blue cloth and a red cloth, a chemical for cleaning glass, water in a spray bottle, paper towels, a mop and bucket and two yellow warning signs.

15. Mr Singh said that his normal procedure on encountering a spill was as follows: if it was a large spill he would put the sign out and then use the mop and bucket to clean up the spill. He would then dry the cleaned area and leave the yellow sign in place if he thought it had not completely dried. If the spillage was small he would not put out the sign. Rather he would clean up the spill, with water if necessary, and then dry the area with his blue cloth or paper towel.

16. On viewing the video Mr Singh said that on this occasion it appeared to be a small spill so that he had used water and then dried the area with a blue cloth. He agreed that the area which the blue cloth covered was quite large. He used his feet to sweep the cloth across the floor. He then used paper towel to dry the area and moved on. He did not deploy a yellow warning sign.

17. Notably Mr Singh said there was only one sign on the trolley in Exhibit 1 indicating that one had already been used. He added that he would have been concerned to keep a sign on the trolley in case there was a large spillage elsewhere.

18. Mr Singh said he never cleaned a floor with any chemical or detergent. If the spillage seemed greasy he would dry it up with the cloth.

19. It was conceded by the defendant that the area in which the plaintiff fell was the same as that which was cleaned by Mr Singh.

20. In my view the coincidence raises an overwhelming inference that the plaintiff slipped on the same spillage that Mr Singh had attempted to clean. This is of course based on accepting the plaintiff’s evidence, which I do, about the greasy and slimy substance she felt on her hands.

21. The defendant submitted that the plaintiff probably reconstructed a history of coming into contact with a damp or greasy substance after viewing the CCTV footage at Westfield. This occurred in early 2012. The difficulty with the defendant’s submission is that the plaintiff said she had attended Westfield with her solicitor. It follows therefore that she had already consulted a solicitor by this time.

22. Exhibit D includes a form headed “Taking initial instructions consultation checklist”. The following history appears on the second page of the form: “Slip and fall at Westfields – Liverpool. Unsure what on floor. Something oily.” Accepting that this history must have been given before the visit to Westfield to view the CCTV footage I reject the defendant’s submission that the plaintiff was guilty of reconstruction or later addition of a history of there being a wet, oily or greasy surface.

23. In my view Mr Singh has probably moved on without ensuring the area was properly dried, or even clean, perhaps because he was anxious to complete his rotation within the allotted time. It is also evident that a sign should have been used to warn passers-by of the possibility of the area being dangerous.

After the fall

24. A young man helped the plaintiff to reach a standing position. After gathering her thoughts she hobbled to her motor car. Fortunately it had an automatic transmission. When she got home the plaintiff was in pain, bruised and swollen. The bruising and swelling remained for some weeks (Exhibit B). She took some Voltaren tablets which were present in the house due to an injury her son had suffered.

25. The plaintiff said the following day she went to work but was in considerable pain.

26. The plaintiff said she rang Westfield to report the incident. She spoke to a man she thought was a security officer and then rang daily over the next week to make sure the right person knew about the injury. She thought she might incur some medical expenses which she hoped to recover from Westfield.

27. The plaintiff said that she saw her general practitioner Dr Adikari on 14 December 2011. She was sent for an x-ray and ultrasound of her left knee. She was later referred to an orthopaedic surgeon, Dr Dao. As evident from the chronology she then commenced physiotherapy treatment and had an MRI scan of her left knee.

28. On 6 March 2012 the plaintiff had an ultrasound guided left knee injection. Prior to the injection the plaintiff’s left knee was in constant pain. She also felt stiffening within the knee as well as clicking.

29. The injection provided immediate pain relief but all the other symptoms in the left knee remained. The plaintiff’s right knee was much less of a problem, although it was still the source of some pain.

30. The plaintiff was able to work but found going up and down stairs difficult. She reduced the number of times she needed to move through her office, and in particular upstairs to a second office.

31. The plaintiff’s freedom from pain was unfortunately short-lived because on 15 April 2012 she attended the Westfield Shopping Centre at Bondi Junction and fell again. This time she slipped on ice-cream. The mechanism of the fall was similar and once again she felt pain in her knees. She has remained with the pain ever since. I asked her why she had not had another injection. She said that she was, in effect, scared of too much medication and she hinted at problems that other family members had experienced by exposure to large amounts of medication.

32. The plaintiff also made it clear that the advice given to her by Dr Dao was that an injection would only ever be a “band aid” solution.

33. The plaintiff had a third fall at work on 28 October 2014. She slipped on “tyre shine”. She said she landed on her left knee. There was some bruising but she did not need any time off work. She did consult her general practitioner Dr Ford. She said her left knee was back to its condition before this fall within a few days. There is nothing to suggest this third fall was anything other than a temporary aggravation of her condition. I do not regard the third fall as carrying any relevance to the plaintiff’s claim. This is in distinction to the second fall which clearly had a significant effect.

34. I note here that the plaintiff has not made any claim for compensation or damages arising from the second or third falls.

35. The plaintiff has not had any time off work due to any of her falls. She is obviously a devoted and loyal employee. She is to be given full credit for this attitude, in particular as she has said she has some difficulties at work, especially with steps. Having given the plaintiff this credit it is also to be noted that the plaintiff has been capable of working without interruption. She is in a relatively highly paid job and one would expect her employer demands a commensurate level of efficiency from her. Her continued working is of itself a reflection of the degree of incapacity from which she suffers.

36. The plaintiff said that she felt secure in her employment and hoped to continue with the same company until age 65. The only impediment she saw in this overall plan was if restructuring of the company led to her becoming redundant. There had already been some job losses due to restructuring.

37. The plaintiff said that following the first fall her husband, Bruce, began taking over her household duties effectively doing all those tasks that she was unable to do. This included all of the housework other than some light cooking and minor cleaning. Mr Forge’s assistance has continued to the present time although in January of this year a cleaner was hired following an injury to his shoulder. Unfortunately the cleaning assistance needed to be stopped after two weeks because Mr Forge lost his job. He has found a new job which is due to start shortly. The plaintiff indicated that she would like to remove the burden from her husband and, if finances permitted, to have a cleaner in the future.

38. Mr Forge gave evidence about the plaintiff and her condition and his contribution to the domestic tasks. He said that the plaintiff’s condition has progressively worsened. He said, I thought a little mischievously, that his impression of the plaintiff’s fall at Bondi Junction was that most of the injury had been to her right knee. This was not the plaintiff’s evidence and I do not accept Mr Forge on this point.

39. Mr Forge described the housework that he has done since the first accident and continuing to the present time. He said that he and his wife were both tidy and meticulous house cleaners. He said it took him six to eight hours every Saturday to do the work that he had taken over from his wife. This is to be compared with the approximately four hours that his wife had attributed to the tasks when she did them.

40. The fact that the plaintiff’s husband took longer to do the tasks does not of itself mean that they should not be compensated for, provided they were reasonably required. I think this clear from the decision of Allsop P (as he then was) in Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343. The bigger question is whether I accept Mr Forge’s estimates of the times that he gave. The issue is particularly important because of the six hour threshold imposed by Section 15 of the CLA. The plaintiff’s counsel, in her opening, fairly conceded that there was a real issue of whether the threshold had been exceeded. She said it was “one of those cases where it hovers around the threshold.”

41. I can entirely accept that Mr Forge may have taken longer to do tasks than his wife had previously taken. However, I have a great deal of difficulty in accepting that it would take half an hour to make a bed or half an hour to vacuum a lounge, in addition to three hours of separate mopping and vacuuming. I do not accept Mr Forge’s estimates of the times that he has taken to do various tasks. As with his evidence about the plaintiff’s right knee after the Bondi Junction fall, I thought Mr Forge was endeavouring to promote his wife’s case.

42. The result is that I do not accept the plaintiff has met the six hour threshold set by the CLA. It is not necessary to consider the six months requirement. The gratuitous domestic assistance claim must therefore fail. There is another reason why it should fail which I will return to under the Damages heading.

Liability

43. I have already made some findings about what occurred during the evening of 1 December 2011 in respect of the cleaning, or lack of it, carried out by Mr Singh on behalf of the defendant.

44. The defendant did not dispute that it owed a duty of care to the plaintiff. The defendant did, however, deny that there had been any breach of the duty. This question involves the application of Section 5B of the CLA.

45. I generally found the plaintiff to be an honest person. I do not think she exaggerated the level of her disability and I have already given her credit for her impressive work history. I accept that she slipped on a substance in the area where the cleaner had recently been working. I cannot say whether that substance was present before the cleaner arrived or whether it was placed there by him. The short point is that he left the substance in place without leaving any warning of its presence. This could have been easily achieved by signs or the cordoning off of the area.

46. Turning to the particular requirements of Section 5B. I am satisfied that the risk of the plaintiff falling on a slippery substance which was transparent and not the subject of any warning was foreseeable. I think this risk was not insignificant and a reasonable person in the defendant’s position would have taken precautions to prevent the risk occurring. In reaching these conclusions I have taken into account the probability that harm would occur if the risk came to fruition and that the harm was likely to be serious. I have already mentioned that the burden of taking precautions was light. I do not think Section 5B(2)(d) is relevant.

47. I am therefore satisfied that the defendant breached the duty of care it owed to the plaintiff. No submissions were put in support of the defendant’s pleaded allegation of contributory negligence.

Causation

48. The next important issue arises from Sections 5D and 5E of the CLA. The defendant’s position is that the plaintiff has not proved that her condition, especially after the Bondi Junction fall, was caused by the fall in December 2011. Section 5D imposes a “but for” test.

49. The defendant’s case was twofold: firstly it said that the plaintiff’s condition was a product of pre-existing, and progressing, arthritic change in her knees and that any aggravation caused by either of the two falls in the Westfield Shopping Centres would have lasted only two or three weeks.

50. Secondly, the defendant submitted that even if the aggravations continued beyond a short period it could not be said that the plaintiff’s ongoing condition, in particular up to the present and into the future, could be attributed to the initial fall on 1 December 2011.

51. Both parties turned to an analysis of the medical evidence to further their respective positions. The defendant primarily relied on the views of Dr Smith but also to some extent on Dr Bodel. Both of these doctors are orthopaedic surgeons. The plaintiff relied on Drs Bodel and Conrad. Unfortunately Dr Conrad was not given a history of the second fall and so expressed no opinion about its significance.

52. Dr Smith’s view was that the two accidents play no part in the plaintiff’s current condition. They may have caused an aggravation for two or three weeks but that would have been the limit of their involvement. I think this view must be immediately rejected as simply not being consistent with the evidence. There was no dispute that the plaintiff’s knees were asymptomatic before the first fall. Accepting there was arthritic change already present, to say that her continuing pain would have changed in its origin after some two or three weeks simply cannot be valid.

53. There is in fact no real argument that there was arthritic change present in the plaintiff’s knees. This is made quite clear both by the radiological evidence and by Dr Bodel. What Dr Bodel says, however, is that the two falls aggravated the arthritic change and that the aggravation has continued. The onset of pain is consistent with the aggravation and the continuation of the pain is consistent with the continuation of the aggravation. I have little difficulty in reaching that conclusion.

48. The problem arises in now assessing the part that the first fall has played in the plaintiff’s condition after the second fall. I note here that my omission in mentioning the third fall (at work) is based on my conclusion that it was of little consequence to the plaintiff’s condition.

49. It is to be recalled that the first fall was an aggravation of a pre-existing condition. Dr Bodel says the same of the second fall. How then can one distinguish between the two aggravations? Obviously, the effects of the first fall would have continued for a period beyond the date of the second fall because the plaintiff was still then suffering symptoms. However, how can I decide when the first aggravation would have ceased, if at all, and the second aggravation, in essence, taken over. It is even possible that the aggravation caused by the second fall was temporary and the plaintiff’s present condition is a product of the first fall. There are any number of possible ‘contribution’ combinations.

50. The position is made more complicated by the matters put to Dr Bodel by the plaintiff’s solicitors and expressed in his report of 14 November 2014 (Exhibit E). The doctor is specifically told that the cracking sensation in the left knee commenced six months after the second accident in April 2012. Accordingly it was not present before the second fall. On a chronologically based logic it is a product of the second fall. However, as it began some six months after the second fall, as opposed to immediately after, then the possibility must exist that it could be a product of both falls with the second aggravation acting upon the first aggravation. I simply do not know. This conclusion must also extend to the whole of the plaintiff’s current symptoms.

51. No doctors were required for cross-examination. Dr Bodel concluded his report of 14 October 2014 (also Exhibit E) in this way:

“In my view however this lady has had the two falls, one in December 2011 and another one which was a similar fall in April 2012 which has caused some further aggravation of the degenerative process which had been asymptomatic prior to the first fall and that aggravation is ongoing.”

58. In my view, what is missing from the plaintiff’s case is Dr Bodel, having expressed the above view, being asked if he could distinguish between the respective contributions of the two falls.

59. Dr Smith was actually asked this question in his report of 16 July 2014 (Exhibit 3):

“(9) If you consider that the patient does have a continuing disability which may impact on her ability to work, state your opinion as to the proportion of responsibility for this disability related to the 1 December 2011 and the 15 April 2012 accident.

There is no continuing disability that is the result of either of these aggravations in December 2011 or April 2012. The disability is due to the underlying knee arthritis, which is a constitutional malady which is familial and inherited and is due to the ageing process as it happens to be affecting her.”

60. Because Dr Smith has taken the view that the aggravations from both falls were short-lived he simply does not deal with the question in a way which would assist the issue before me.

61. The plaintiff’s evidence also does not assist. I do not say this critically because it is obviously beyond her capacity to reach a medical diagnosis. What one does know is that the plaintiff had achieved a certain physical state by the time she fell at Bondi Junction. However, the fall at Bondi Junction seems almost identical to that in Liverpool and I cannot say what its effect was on the plaintiff’s condition or even if, of itself, it would have created the condition that the plaintiff currently finds herself in. Logic would dictate that the first fall still plays a part in, or at least increased the plaintiff’s vulnerability to, the creation of her present condition. Logic, however, is not the test to be applied.

62. The plaintiff submitted that once she had established an injury had resulted from the first fall then the onus shifted to the defendant to show that any subsequent event had a disentitling effect on her damages. The plaintiff relied on Watts v Rake (1960) 108 CLR 158 in support of her case. The defendant said that causation was now dictated by Section 5E of the CLA. This section states:

“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.”

63. The plaintiff’s response was that Section 5E did not affect the common law approach to causation of damage, rather it was restricted to the establishment of negligence. To this end I was referred to the decision of Davies J in Hirst v Sydney South West Area Health Service [2011] NSWSC 644. At paragraph 140, after discussing the impact of Section 5E, his Honour said:

“As a matter of practicality it is likely that the reference to onus of proof in s 5E is a reference to the legal onus of proof. That is because the evidentiary onus shifts between the parties at various times during the case depending on what evidence is led by the other party.”

64. If the argument concerned the relevance of the pre-existing condition I would agree with the plaintiff’s position.

65. The difficulty with the plaintiff’s argument in the present case however is the distinction between identifying the plaintiff’s post-accident condition in the light of her pre-existing arthritic change and identifying the effect of the second accident when imposed upon the first accident.

66. In my view, even if Section 5E does not apply, the onus remains on the plaintiff to show the extent to which her damages remain a product of the first accident without interference from the second accident. The second fall was almost a replica of the first fall. It cannot be said, as in a case where the comparison is with asymptomatic arthritic change, that the plaintiff is now in pain and would not have been but for the injury.

67. Here the plaintiff was in pain due to a mechanism of injury. The repeat of the same mechanism would also be expected to produce the same result, although perhaps to a greater degree because of the already existing hurt. If the plaintiff is to allege her continuing condition is due to the first fall I think she retains an onus to show the second injury was of little or no consequence. In other words the plaintiff must show her damages were caused by the first fall. If the second fall imposes an obstacle in the chain then I think it must be initially dealt with by the plaintiff before there is any shift in the evidentiary onus.

68. This might, for example, have been achieved by a medical opinion or even the plaintiff’s evidence that her condition returned to its pre-second fall state after a period of time. There is no such medical evidence and the plaintiff’s evidence was to the contrary; her pain came back and her condition has progressively worsened.

69. The plaintiff’s assessment of damages is said to apply vicissitudes of 25% rather than the normal 15%. This approach does not address the basic causation issue of what the plaintiff’s condition would have been but for the first fall but allowing for the happening of the second fall.

70. What I think I can do, by way of resolution of the causation issue, is conclude that the plaintiff has established that as a result of the 2011 fall she suffered an aggravation of an already existing arthritic condition in both knees. That aggravation was most pronounced in the left knee. Further the aggravation has continued to the present but that conclusion must be tempered by the influence of the second fall which has contributed to an unknown degree. The only way to translate these conclusions into the assessment of quantum is to discount the damages I would otherwise have assessed by reflecting the influence of the second fall.

71. Taking into account that both incidents were very similar in their mechanics and that certain symptoms did not materialise until after the second fall then this discount must be substantial.

Damages

72. The plaintiff said non-economic loss should be assessed at 28% of a most extreme case. The defendant suggested 16%. The plaintiff has suffered a good deal of pain in her knees, in particular her left knee. The pain and restriction of movement has affected her capacity to do housework, to engage in the recreational activities that she previously enjoyed and has been felt at work. I think the plaintiff’s suggested 28% would have been in the range if only the first fall had occurred. However taking into account the discount I have concluded should apply, I think the appropriate percentage is 20%. This translates to $20,000 under Section 16 of the CLA.

73. Turning now to past gratuitous domestic assistance I have already concluded that the plaintiff has not met the six hour threshold set by Section 15 of the CLA. In addition, I would add that had I found the thresholds were exceeded, in particular up to the 10 hours suggested by the plaintiff, I would have discounted those hours as a result of the effect of the second accident to below six hours. The plaintiff’s claim would have thus failed for that reason as well.

74. In respect of the future, the claim is put on an alternate basis of gratuitous care under Section 15 and secondly on a commercial basis. The former fails for the same reasons as the past claim. The future claim is based on the plaintiff’s husband not continuing to provide care. Mr Forge did not give evidence about the shoulder condition that apparently led to the hiring of commercial cleaners earlier this year. He did, however, make it very clear that these cleaners were not up to the standard that he and his wife expected. I do accept that the plaintiff’s injuries are such that there is a continuing need for assistance in the house. I think this is consistent with Dr Bodel’s view, at least to the extent that the first fall is a continuing factor in the plaintiff’s current condition. I also accept that Mr Forge should not be expected to do all of the cleaning himself. He is starting a new job next week and one could well expect that he would prefer not to do all of the heavy cleaning himself.

75. The plaintiff submitted that five hours a week of commercial care would be appropriate. This was assessed to the end of the plaintiff’s life expectancy. I think there are a number of problems with this approach including the absence of any medical evidence to establish that the aggravation to the plaintiff’s arthritic condition (whether based on one or two falls) is such that it would continue for so many years into the future. Factoring in this unknown and then applying a discount to the number of hours based on my conclusions about the effect of the second fall I think it reasonable to allow the plaintiff three hours of commercial care per week for five years. The rate of $40 per hour was not disputed by the defendant. Applying the 5% tables the calculation is 3 x 40 x 231.5 = $27,780.

76. The plaintiff claimed an economic loss buffer of $75,000. The evidence, from both Dr Bodel and Dr Smith, is that the plaintiff is fit for her current employment. The only basis then upon which a future buffer could be awarded is on the possibility that the plaintiff might lose her job in the future. The plaintiff said she would retire at age 65. She is now 51, giving her 14 more years of her working life. She gave evidence of the possibility of restructuring within her employer company which might cause her to lose her job.

77. The defendant’s submission was that there should be no buffer because the plaintiff is fit for her work and there is no independent evidence to suggest that her job might be in jeopardy. The future is of course uncertain and I think one must take into account the possibility that at some time during the next 14 years the plaintiff might find herself on the open labour market. If this were to occur she would be at a disadvantage compared to a person of similar age and capacity but without any disability. She could not, for example do her previous job of running a pizza shop. The plaintiff is obviously a very efficient and hardworking person but nevertheless might be prejudiced by problems in her knees. Against this must be factored in both the possibility that any disadvantage would have arisen in any event because of arthritic change as well as the discount that I have discussed arising from the second fall.

78. Before awarding any future economic loss, by buffer or otherwise, it is necessary to make findings under Section 13 of the CLA. I am satisfied that but for the plaintiff’s fall she would have continued to work until age 65 in employment with her current employer or performing similar duties elsewhere. I am also satisfied that she would have been subject to the normal vicissitudes of 15%.

79. The plaintiff is entitled to economic loss if she can demonstrate an incapacity which may be productive of loss. I have identified an incapacity but the factors mentioned above (her current job security and capacity to do her current work) must combine to render any buffer to be very modest. Doing the best I can, I allow $10,000. I should add that this figure also takes into account that the plaintiff is a relatively high earning employee which, in the event of her being unemployed, would accentuate her loss.

80. The plaintiff’s claim for past out of pocket expenses is $2,918.10 (Exhibit H). The defendant submitted that only $1,433.65 should be allowed because this was the amount expended up to the second accident. The whole of the balance, submitted the defendant, should be attributed to the Bondi Junction fall. I do not think that approach is valid because of the continuing effect of the first fall even if the second fall had not occurred. Once again I think I should discount the claim and allow half of the amount that post-dates the second fall. This is $742.22 which should be added to $1,433.65, making a total of $2,175.87.

81. The plaintiff claimed future medical expenses of $25,000 reflecting future treatment such as physiotherapy but, most significantly, future surgery, although conceding that it would take place some time in the future. The defendant submitted there should be no allowance because the plaintiff has by now overcome the aggravations and remains only with the effects of her arthritic change. I have already rejected this submission.

82. There seems little doubt, on all of the medical evidence, that the plaintiff may well come to surgery in the future. In addition she made it clear that her own view was that she should wait as long as possible before undergoing any surgery. It is impossible to know when the surgery will occur nor whether the first fall will still be playing a part when that surgery does occur. Once again taking a hopefully reasonable approach, including the discounting that I have mentioned above, I allow $5,000 by way of all future medical expenses.

83. A summary of the damages I have allowed is as follows:

Non-economic loss	$20,000.00
Future commercial care	$27,780.00
Economic loss buffer	$10,000.00
Out of pocket expenses	$2,175.87
Future medical expenses	$5,000.00
Total	$64,955.87

84. I make the following orders:

1. Judgment for the plaintiff in the sum of $64,955.87.

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

3. The exhibits may be returned.

85. I will hear the parties on costs in case any special orders are requested.

**********

Amendments

17 April 2015 - Table reformatted

Decision last updated: 17 April 2015