Furner v Jackson - [2023] NSWSC 914

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Furner v Jackson [2023] NSWSC 914
Hearing dates: 25, 26, 27 July and 26, 27 September 2022
Date of orders: 3 August 2023
Decision date: 03 August 2023
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) I propose to enter the first, second and fourth defendants are to pay the plaintiff damages in the sum of $1,509,512, arising from an accident that occurred on 18 January 2020, once the calculations have been checked by the parties.
(2) The defendants are to pay the plaintiff’s costs.

Catchwords:
NEGLIGENCE – General principles – Duty of care – Foreseeability of risk – Causation – Personal injuries – Slip and fall – Occupier’s liability – Expert medical evidence – Liability established – Damages.

Legislation Cited:
Civil Liability Act 2002 (NSW) 5, 5B, 5C, 5D and 5E
Uniform Civil Procedure Rules 2005 (NSW) r 5

Cases Cited:
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v BouNajem (2009) 239 CLR 420; [2009] HCA 48
Cupac v Cannone [2015] NSWCA 114
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Manly Municipal Council v Skene [2002] NSWCA 385
Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42
Thornton v Sweeney [2011] NSWCA 244
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Krickovic v The Star Pty Ltd [2019] NSWDC 594
Wallace v Kam [2013] HCA 19, 250 CLR 375
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Woolworths Ltd v Strong [2010] NSWCA 282
Mouin Junior Dalati v Shereen Rifat Brown [2020] NSWSC 783
Sangha v Baxter [2009] NSWCA 78
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

Texts Cited:
Sir Richard Eggleston QC Evidence, Proof and Probability (Weidenfeld and Nicolson, 1978)

Category: Principal judgment
Parties: Kellie Furner (Plaintiff)
Alan James John Jackson (First Defendant)
Linda Kondouras (Second Defendant)
CK1 Realty Pty Ltd (Fourth Defendant)
Representation:
Counsel:

P. Khandar SC with E. Anderson (Plaintiff).
A. Ahmad and N. Hogan (Defendants).

Solicitors:
Brydens Lawyers Pty Limited (Plaintiff).
Holman Webb Lawyers (Defendants).

File Number(s): 2020/00227032-1

Contents

JUDGMENT

Background
The medical experts
The pleading framework
Background
Text Messages
Credibility of parties
The plaintiff’s submissions on her credibility
Use of medication
The reliability of Mr Furner
Liability Principles
Causation – the law
Prior neck pain
Contributory negligence
After the accident
Medical evidence
Diagnosis
Inconsistencies in presentation
Pre-existing injuries
Conclave evidence – Dr Lee and Ms Glancey
Quantum
Non-economic loss
Past-economic loss
Future earning capacity
Past loss of superannuation
Future loss of superannuation
Past out-of-pocket expenses
Future out-of-pocket expenses
Past Attendant Care
Future attendant care
Costs
JUDGMENT

JUDGMENT

HER HONOUR: The plaintiff seeks damages for personal injury arising out of a slip and fall she sustained at an open house inspection.
The plaintiff is Kellie Furner. The first defendant is Alan Jackson. The second defendant is Linda Kondouras. The first and second defendants are husband and wife, they were the owners of the property that was open for inspection. The third defendant was the licensee of the real estate agency, The Agency Sales NSW Pty Ltd. These proceedings have been discontinued as against the third defendant. The fourth defendant is CK1 Realty Pty Ltd.
P. Khandar SC with E. Anderson of counsel appeared for the plaintiff. A. Ahmad of counsel appeared with M. Kheir for the defendants. The parties relied on the plaintiff’s Court Book marked Exhibit A (‘Ex A’).

Background

On 18 January 2020, the plaintiff slipped and fell on 18 January 2020 (‘the accident’) on the driveway of a residential property located at XX Crescent, Garden Suburb, in the State of New South Wales (‘NSW) (‘the property’).
The plaintiff seeks personal injury damages alleging negligence by the first and/or second and/or fourth defendants (‘the defendants’). The fourth defendant was the real estate agent engaged by the first and second defendants to sell the property.
These proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW).

The evidence

Plaintiff

The plaintiff relied upon her evidentiary statement dated 22 March 2022 (Ex A 35) and further evidentiary statement dated 24 March 2022 (Ex A 52). She gave evidence and was subject to lengthy cross-examination.

Lay witnesses

David Furner, the plaintiff’s husband, Isabella Furner and Kyle Furner, the plaintiff’s adult children relied upon their evidentiary statements. They were all cross-examined.

The plaintiff’s liability evidence

The plaintiff relied upon an expert report prepared by Denis Cauduro (CB D091). He was not required for cross-examination.

The defendants’ liability evidence

The second defendant provided statements dated 6 June 2022 and 16 September 2022 (‘Ex 9’). Ms Cveta Kolarovski, the principal of the fourth defendant, provided a statement dated 10 June 2022. They were cross-examined.

The medical experts

Drs Shatwell and Peter Giblin, Orthopaedic Surgeons, provided a joint report and gave concurrent evidence (CB G277).
Psychiatrist Dr Leonard Lee and psychologist Ms Kate Glancey provided a joint reports and gave concurrent evidence (CB G286).

The pleading framework

By Amended statement of claim dated 10 September 2021 the plaintiff relevantly pleads that on a date prior to 18 January 2020 the first and second defendants performed or caused to be performed remedial works including painting the sloping driveway at the front of the property. These works rendered the driveway dangerously slippery.
On or about 18 January 2020 the plaintiff was lawfully present at the property for the purposes of inspecting it for purchase when she slipped on the driveway and fell heavily to the ground suffering injury, disability, loss and damage.
The foregoing circumstances gave rise to a risk that a person might slip and fall and suffer injury if reasonable measures were not taken to prevent that risk of harm. The risk of harm was foreseeable and was not insignificant. A reasonable person in the position of the first, second and fourth defendants and each of them would have taken reasonable measures to avoid the risk of harm which materialised. The first, second and fourth defendants and each of them owed the plaintiff a duty of care and were in breach thereof and were negligent.
The particulars of negligence against first and second defendants were pleaded as follows: placing the plaintiff in a position of peril in the circumstances; Failing to warn, or adequately warn, the plaintiff of the risk of slipping on the driveway; Failing to conduct any adequate, risk assessment as to the slipperiness of the driveway particularly when wet; Failing to place non-slip mats or similar non-slip control measures over the driveway prior to the sales inspection; Applying or causing to be applied a glossy paint which rendered the driveway dangerously slippery particularly when wet; Failing to add a non-slip additive to the paint prior to its application; Failing to coat the painted driveway with a non-slip sealant and failing to take any or, any adequate measures to increase the slip resistance of the painted driveway surface when they knew, or ought to have known, it was dangerously slippery particularly when wet.
The particulars of negligence against the fourth defendant are as follows: Placing the plaintiff in a position of peril in the circumstances; Failing to conduct any, or any adequate risk assessment of the slipperiness of the driveway surface particularly when wet; Failing to warn, or adequately warn, the plaintiff of the slipperiness of the driveway surface notwithstanding it was known the driveway was dangerously slippery particularly when wet; Failing to place non-slip mats or similar non-slip control measures over the driveway prior to the sales inspection by reason of the defendants negligence the plaintiff suffered injury, disability, loss and damage.
The plaintiff’s particulars of injuries included injury to her neck, injury to her shoulders, an injury to her right elbow, an injury to her right wrist, an injury to her right hip, an injury to her right knee and shock and sequelae. Her most serious injury was the injury to her neck.
Prior to the accident, the first and second defendants retained ‘The Agency Sales NSW Pty Ltd’ for three days for the sale of the property. ‘The Agency Sales NSW Pty Ltd’, the third defendant, engaged the fourth defendant to perform estate agency work with respect to the sale of the property. As previously stated, the third defendant is no longer a party to the proceedings.

The defendants’ defence

On 15 September 2021, the defendants filed a defence to the further amended statement of claim (‘defence’). In their defence, the defendants’ pleaded:

the driveway was painted prior to the date of the plaintiff’s accident (the driveway was painted by the first defendant approximately one week prior to the plaintiff’s accident admitted in open correspondence);

the fourth defendant was the occupier of the property for the purposes of opening it to the general public for the purposes of an open house sales inspection on the day of the accident.

The defence, on behalf of the first, second and fourth defendants, do not deny that the plaintiff “having slipped and fallen heavily”. They plead blanket denials of negligence (see para 4 at CB A012) and deny that the plaintiff sustained the injuries and disabilities as alleged or at all. However, at the hearing the defendants, while still denying liability, admitted that the plaintiff suffered injuries from the fall, but the cause of the plaintiff’s neck injury is in dispute. The issue of contributory negligence is not pressed (T350.24).

Background

The plaintiff’s evidence

The plaintiff was born on XXX 1969 in Canberra, Australia. She grew up in her parent’s home.
She describes her childhood as unpleasant. Both she and her brother were sexually assaulted by a close family member during their childhood years.
The plaintiff met her husband, David Furner, when she was 15 years of age. The plaintiff completed her primary and secondary education at Weston primary school and Holder high school (from years 7-10). In 1987, she attended Stirling College for years 11 and 12, completing her HSC.
Between 1987 and 1990, the plaintiff was employed in some part time jobs, as she was still in the early stages of adult life. She was unsure of the career path she wanted to follow.
In 1990, the plaintiff commenced employment with the Chief Minister's Office in Canberra. She was employed there for two years as an executive assistant.
In 1993, the plaintiff commenced employment with the office of Births, Deaths and Marriages. She was employed there for 12 months.
Between 1990-1994, the plaintiff also ran a dance studio in Canberra.
In December 1994, she and David Furner married. She was the head choreographer and cheerleader of the Canberra Raiders. The cheer squad was known as the 'Raiderettes'. In 1989 she was promoted to running the Raiderettes. In 1995, she finished with the Raiderettes. During this time, her husband was a professional rugby league player with the Canberra Raiders. He represented both NSW and Australia in rugby league.
The plaintiff and her husband have three adult children from their marriage, being: Maddison, Kyle and Isabella.
In 2001, the plaintiff and her family moved to the United Kingdom for period a of four years, while her husband was employed as a professional rugby league player for the Wigan Warriors and subsequently with the Leeds Rhinos. While at the Leeds Rhinos, Mr Furner played in the position of lock in the 2004 Super League Grand Final.
In 2004, the plaintiff’s husband retired from being a professional rugby league player. They returned to Canberra to live. Upon their return to Australia, the plaintiff commenced a beauty therapy business, 'Mabella Beauty’, which she ran from their home. The business mainly involved nails, waxing and spray tanning. From 2005 to 2009, she operated that business on a part time basis. The plaintiff recalls that she was earning approximately $500-$600 net per week at that time.
In 2006, the plaintiff’s husband took on a role as assistant coach for the Canberra raiders. In 2009, the plaintiff’s husband was appointed as the head coach of the Canberra Raiders. During that time, he was rarely home due to the demands of his job. As a result, the plaintiff was required to close her business to look after their three children on a full-time basis. Until the end of 2009 the season, the plaintiff’s husband remained as the head coach of the Canberra Raiders.
In 2012, the plaintiff was diagnosed with breast cancer. She had bilateral breast reduction, bilateral mastectomy and reconstructive surgery, all performed during the one operation. After surgery there were problems. Eight weeks from the reconstructive surgery, the plaintiff had a complication with her right breast reconstruction. As a result, she had her right reconstructed breast removed. Later that same year, she had further reconstructive surgery performed on her right breast.
In 2013, the plaintiff’s husband obtained employment with North Queensland Cowboys as an assistant coach in Townsville, Queensland. As a result, the family moved to Townsville where they lived for 3 years.
In 2014, the plaintiff and her husband purchased and opened a ‘Crust Pizza’ franchise in Townsville. She recalls working 17-18-hour days, 7 days a week. Her husband was not involved in the running of that business. She was responsible for managing the shop, which included, but was not limited to, cooking, ordering stock and managing staff. In 2017, due to a general downturn in business in the Townsville area at that time, they decided to close the Crust Pizza franchise.
In 2015, the plaintiff underwent an MRI to her left breast and it was thought that there was a cancer tumor. However, fortunately as it turned out, she had a large abscess and not a tumor. The abscess was removed. She had both the left and right breast reconstructions removed due to complications that had arisen.
In 2016, the plaintiff was diagnosed with post-traumatic stress disorder (‘PTSD’) and complex trauma, arising from a close family member sexually assaulting her as a child. As a result, she spent five weeks in a mental health facility, where she was medicated for both depression and anxiety. Upon discharge, she underwent counselling for a period of time, that she felt was of benefit to her. By late 2018, she ceased her counselling sessions. She felt that she had recovered from the PTSD and was able to move on with her life and she did so.
It is the plaintiff’s evidence that for the 12 months prior to her accident, she did not suffer from any psychological complaints. This evidence is in dispute. I shall refer to it in more detail later in this judgment.
The plaintiff was involved in a legal claim in relation to her mother's estate where her father was attempting to acquire the estate with the intention of passing it to his second wife.
In late 2016, the plaintiff and her family moved back to Sydney to live, as her husband was now employed as the assistant coach of the South Sydney Rabbitohs.
In May 2017, she commenced employment with the 'Men of League' foundation as the 'National Administration Manager' and 'Executive Assistant' to the CEO of that foundation. In 2019, she finished her employment with the 'Men of League' foundation. She recalls during her time employed with the 'Men in League' foundation, she was earning approximately $70,000 gross per annum. She was also provided with a company car that she was free to use as she wished.
In October 2019, she obtained employment with the Newcastle Knights as the 'Community Relationships Coordinator'. That role involved a lot of community work, setting up relationships in the community, as well as game day operations. In addition, her role involved organising the Newcastle Knights' charitable status. This was her dream job, as it allowed her to work in and about the community, while assisting those persons in the community who were not as advantaged as some others.
Her role with the Newcastle Knights was on a full-time basis. She was required to work a 38-hour week. If it was not for the accident, she says that it was her intention to continue in this role and/or a similar role until least the age of 70.
On 30 September 2020, she resigned from her job at the Newcastle Knights due to the injuries she sustained in the accident. Prior to her resignation, she had been placed on JobKeeper payments, due to the COVID-19 pandemic, as was the case with the remainder of the staff at the club.

The accident

On 18 January 2020, the plaintiff attended an open for inspection at XX Cupania Crescent, Garden Suburb (‘the property’). Mr Furner witnessed the accident and corroborated the plaintiff’s evidence. As there is no real factual dispute as to how the plaintiff came to slip and fall, I accept their evidence.
On the morning prior to the accident the plaintiff worked, as the Newcastle Knights had a community launch. After that, the plaintiff and her husband drove to the property together. Her husband parked on the opposite side of the road and a little bit further up the street from the property.
Once Mr Furner had parked their car on the opposite side of the road, the plaintiff and her husband walked from their car across Cupania Crescent ('the road') towards the driveway of the property. Mr Furner was in front of the plaintiff, as they walked from the car towards the property. The plaintiff was not carrying a hand bag. It is common ground that the plaintiff was wearing flat sandals, which had wrapped around the back of her ankle to secure them. These sandals were produced at trial. The parties agreed that they were leather sandals with a rubber sole. They were not slip-on sandals. In other words, the sandals were appropriate footwear.
While it had rained in the morning on the day of the accident, it was not raining at the time the accident occurred. The plaintiff observed the road and the driveway to the property were both wet from the morning's rainfall.
As the plaintiff stepped onto the driveway, her right foot slipped underneath her and to her left. As a result, her body fell to her right and she subsequently landed on her right elbow and right hip. She says that she immediately felt significant pain and discomfort in her right elbow and right hip. She lost some skin on her right elbow and her right hip was very sore.
The plaintiff’s husband immediately came to her assistance and picked her up off the ground. Once she was back on her feet, she observed the driveway looked very shiny/glossy.
It is the plaintiff’s and her husband’s evidence that another couple who had just pulled up outside the property came running over to the plaintiff to make sure she was okay.
Once the plaintiff’s husband had assisted the plaintiff to her feet on the driveway, she took a couple of steps towards the front door of the property and slipped again on the driveway. As the plaintiff’s husband was already holding onto her arm, and he was able to support her and prevent her from the falling to the ground a second time.
Once she and her husband arrived at the front door of the property, a lady who she believed worked for the real estate agents was located at the front door. This lady was later identified as Ms Brittany Johnson (‘Ms Johnson’). The plaintiff had a conversation with Ms Johnson using words to the following effect: “I have slipped over on the driveway, it is very slippery.”

The plaintiff recalls that she felt deeply embarrassed, as a number of people had observed her accident. She just wanted to go inside the property. Later during the open house inspection, Ms Johnson came up to her and said words to the following effect: “Are you ok? Because you fell quite hard on the driveway.”
In response, the plaintiff said that Ms Johnson then went out to inspect the driveway. The plaintiff recalls that she spoke to Ms Johnson a short time later, and Ms Johnson said words to the following effect: “I went to check the driveway out, and I slipped on it as well, it is very slippery.”

The fourth defendants’ evidence – Ms Cveta Kolarovski

The fourth defendant, Ms Kolarovski, (the director of CK Realty) gave evidence. The plaintiff submitted that the Court should deal with her as a singularly unimpressive witness. She was reluctant to attend Court to give evidence in person. As she was a defendant and her credibility was seriously in dispute.
Ms Kolarovski provided a statement dated 10 June 2022, it was important that I could assess her demeanour. She did attend Court and she was cross-examined.
It is common ground that during Ms Kolarovski’s partnership with the Agency, she entered into a sales agreement with Mr Jackson and Ms Kondouras, the first and second defendants, the owners of the property for the sale.
Ms Kolarovski agreed that on 18 January 2020, another agent, Ms Johnson conducted an open inspection at the property. Ms Kolarovski was not present at the open for inspection.
Her evidence was that she was informed by Ms Johnson that a woman approached her [Ms Johnson] saying “the driveway is slippery and I slipped or stumbled.” Ms Johnson asked her “are you okay?” The plaintiff replied, “I am fine.” It is common ground that the plaintiff continued to inspect the property. As Ms Kondouras was not at the property when the plaintiff fell, it follows that she was not an eyewitness to the plaintiff’s fall on the driveway. Ms Kondouras arrived at the property after the plaintiff had already left. It was at this time Ms Johnson relayed the above conversation to her.
After that open for inspection, following the usual procedure, Ms Johnson contacted all the potential buyers the next week to confirm their interest in the property. However, the plaintiff did not answer nor return her call.
Ms Kolarovski describes the driveway as steep and that one can view the whole driveway from the front door of the property.
She also says that she had not been informed of any prior similar incidents relating to the driveway and during her time at the property, she says she did not experience the driveway being slippery, even when she was wearing high heeled shoes (T314.10-15).

Text Messages

A log of text messages sent between Ms Kolarovski (sometimes referred to as Cveta) and the first defendant (referred to as Alan) were adduced as evidence during the hearing (‘Ex F’), but the log was missing some entries. On the last day of the hearing, a more complete copy was produced [Added to Ex F].
The texts messages are those between 16 October 2019 and 25 September 2020. They relevantly read as follows:

[Before the Accident]
“[16 October 2019]
[ALAN] Hi Cveta. On behalf of Linda & myself we wish to thank you for your advice on selling of the Italian Mansion. We have been doing some heavy duty talking & thinking & will let you know soon.
[Ms Kolarovski] Hi Allan Thank you love your property!!! Especially the outlook.. it’s very grand residence that’s for sure! I just met 2 other buyers at tonight property in Westwood Ave Adamstown hgts that would both be very keen to see the property! I also contracted the other buyers I was telling you and linda about they are very interested wanted the address, but I didn’t advise address just one in Cupania Cr which they absolutely love that street and that it’s on the high side too. I’ve dangled the
…
[30 October 2019]
[Alan] Hi. Daniel has been & given us a big plus on our home. We are prepared to go to the next stage. As you know time is running out and Christmas is nearing. We would like too see the ball continue rolling. Alan Jackson
…
[11 November 2019]
[Alan] Hi. I would like an update what’s next too be done seeing now the copywriter & photographer have been through the house. As far as I know a floor plan & Ariel photo’s are too be done.
[Ms Kolaraovski] Hi allan as soon as we have all we can send live aiming for Thursday. Call you shortly.
…
[20 November 2019]
[Alan] Hi. After speaking with Linda, she said she would be happy to have open house prior too 2.15 Saturday. Just give us prior warning. I mean Saturday morning before 2.15.
[21 November 2019]
[Alan] We won’t be leaving the house unattended on Saturday. We would rather have you here before we vacate the premises.
[7 December 2019]
[Alan] Linda go on the improve. All systems go please. House unlocked.
[After the accident]
…
[20 January 2020]
[Ms Kolarovski] Hi Alan. Just touching base regarding the offer, the young couple have asked if you have made a decision? Cveta
…
[25 January 2020]
[Alan] Hi. I dare say the people from Wednesday’s open house has pulled out with out asking figure.
[Alan] Driveway is drying. Will leave it up too you.
[Ms Kolarovski] Hi Alan. No buyers inspected today.
…
[17 February 2020]
[Alan] Unless it rains between now & 6, the driveway is dry too [sic] be used.
…
[13 March 2020]
[Alan] Good afternoon. We are very concerned about the look of the driveway. There is now a bad rust mark across it after trying products to remove slippery paint when wet. We now feel this uncertainty will deter potentially buyers. If mosquitoes chase them away, what will crappy driveway do?
[14 March 2020]
[Ms Kolarovski] Don’t stress about it.”

It should be observed that the reference on 25 January 2020 to “driveway is drying” is after the accident occurred on 18 January 2020, as are the latter two messages, but I shall refer to the admissions made later in this judgment as to when the painting on the driveway took place.

Lack of evidence from Ms Brittany Johnson

Ms Johnson, at the time of the accident, was the employee of the fourth defendant. It is common ground that she was conducting the open house on the day of the accident on behalf of the fourth defendant. As such, she was in a position to give a first-hand account on the accident, the state of the driveway on the day of the accident and her version of the conversation with the plaintiff.
She was not called upon to give evidence by the defendants. During cross examination, Ms Kolarovski stated that while Ms Johnson is no longer employed by the fourth defendant, she had her contact details and they were provided to the solicitors representing the defendants (T239.36-44).
Hence, the defendants are aware of Ms Johnson’s address. No reason has been proffered to explain why she was not called to give evidence. Ms Johnson could provide important evidence as to whether or not the driveway was slippery, her observations of the plaintiff’s fall and her conversation with the plaintiff on the day of the accident. Therefore, in the exercise of my discretion, I draw a Jones v Dunkel (1959) 101 CLR 298 inference that her evidence would not have assisted the defendants’ case.
The plaintiff’s statements that concerned Ms Johnson were admitted on the basis that the representations were made but not as to the truth to them. Ms Johnson was the fourth defendant’s employee, as I set out under the next heading “credibility”. As I have already set out earlier in my judgment, I accept the plaintiff’s and her husband’s evidence in relation to the accident. I also accept the plaintiff gave truthful evidence recounting what Ms Johnson said.

Credibility of parties

The plaintiff’s evidence

At the hearing, I drew to the plaintiff’s counsel’s attention to my concerns with the plaintiff’s manner of giving evidence. After carefully observing this manner of giving evidence, it appeared that the plaintiff had some entrenched views as she would not answer some questions, nor would she give direct answers to other questions. Overall, I accept that she gave truthful evidence. Except for topics I identify throughout this judgment relating to causation and damages, I have accepted her evidence as to liability.

The plaintiff’s submissions on her credibility

Counsel for the plaintiff submitted that this should not turn into a significant finding or adverse finding in respect to her credit on the basis that she came before the Court having suffered a terrible event and has had ongoing problems. While it's by no means unusual that when confronted by questions from the cross‑examiner that the plaintiff might not have wanted to answer or had some difficulty or stoutly refused, such as "I'm not giving you my journal", that is not an uncommon feature in litigation.
The plaintiff’s counsel submitted any issues in respect of her credibility does not affect liability. I agree. Her reluctance or her stout refusal to answer certain questions is not sufficient to militate across all aspects of her medical case and impact her credibility (T349.42-350.34). Plaintiffs do their best when they come to Court to give their evidence, but also one shouldn’t separate out from that presentation the medical reality (T353.14-16). As to the submission about the plaintiff's dishonesty and her credit, it would have more force, if we were talking about a plaintiff who comes to this Court having not had any surgery, having no active treatment. This plaintiff has gone under the knife not once but twice and is still looking for ways to deal with her pain (T372.5-19).

The defendants’ submissions

The plaintiff was not an impressive witness, who took every opportunity to bolster her claim and denied every opportunity to make reasonable concessions. The Court has every reason to lack confidence in the evidence of the plaintiff.
In assessing the strength of the plaintiff’s evidence, the Court is guided by Mouin Junior Dalati v Shereen Rifat Brown [2020] NSWSC 783 (‘Dalati’), where Kunc J explored the concept of actual persuasion in the context of fact-finding at [45]:

“[45] Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56:
48. Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account:
the nature of the cause of action or defence;
the nature of the subject matter of the proceeding; and
the gravity of the matters alleged.
When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2).”

In Dalati, Kunc J echoed Basten JA at [50] (with whom Handley AJA agreed) by quoting Sangha v Baxter [2009] NSWCA 78:

“[50] … Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.”

As to making assessments on credibility, Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]–[74] provided some guidance as follows:

“73. There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” (“The Business of Judging”, Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1–27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.

74. Lord Bingham then added these observations:
In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.…
…so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.”

Overall, the defendants’ counsel submitted that the Court cannot be satisfied that the plaintiff’s evidence is credible. Throughout her cross examination, the plaintiff:

demonstrated selective memory recollection;

gave answers that were not consistent with what was said on other occasions;

when asked innocuous questions, evaded giving truthful, frank and reliable answers; and

demonstrated to have behaved dishonestly in respect of matters not germane to the litigation, but significant enough to treat her motivations with skepticism.

In particular, counsel for the defendants’ counsel submitted that the plaintiff’s evidence should be rejected where she says that she drafted her evidentiary statement without the participation of her legal advisors and that not one word was changed and that she did not have a conference with them as to what would be included. See an exchange for example at p 40 of the transcript, which reads as follows:

Q. I don't want to do the whole thing but, yes--
A. None of my wording was changed.
Q. Was it put in any particular order? Was the order changed?
A. No.
AHMAD
Q. Not one word was changed?
A. No.
Q. In the process of preparing that evidentiary statement, did you have a conference with your solicitor about what should be included in there?
A. No.
Q. You just wrote it up all yourself?
A. Yes.

Then he referred to his questioning as to household chores and her pain levels:

Q. Dr Giblin in his 2 November 2020 Report (CB E201) then records “It is now a 70/30 split where she does most of the light activities but the intermittent heavy work is done by family members.” That’s accurate?
A. Yes.
Q. Your pain levels of eight or nine out of ten that you assert that existed then, continued daily, right?
A. It has.
Q. So now it’s no different to what it was then?
A. My pain has actually increased somewhat.
Q. Can I suggest to you that there’s no reason why you still can’t engage in a 70/30 split of activity?
A. I can’t, I can’t.

I interpose here, surprisingly, I accept the plaintiff’s evidence on the topic of her preparation of her statement. She was a personal assistant in a government department in Canberra. In my view she had experience and was competent to write her own statement. As I recorded in the transcript that I only found a few typographical errors in her statement.
Counsel for the defendants then directed an attack on the plaintiff’s credit, mainly focussing upon the issues of causation and damages. As previously stated, I accept that the plaintiff gave truthful and unembellished evidence in relation to the circumstances of the accident, (liability).
In the counsel for the defendants submissions, the Court was invited to reject the following evidence given by the plaintiff. Her evidence given is inconsistent with the records of her psychologist regarding her level of her pain and the amount of housework she would perform, the exaggerations about the state of her marital relationship. These criticisms will be dealt with when they arise later in this judgment.
The defendant counsel also turned his particular attention to the plaintiff’s bike riding:

Q. You enjoy recreational activities, such as bike riding, don’t you?
A. Bike riding?
Q. Yes?
A. I have nowhere to ride a bike where I live.
Q. But you do ride a bike, don’t you?
A. I have once or twice in Newcastle.
Q. You’ve ridden a bike since this injury, haven’t you?
A. Once or twice in Newcastle.
Q. You rode a bike in January 2021, didn’t you?
A. January 21, I may have. Like I said, once or twice I have.
Q. Tell her Honour the occasions that you’ve been riding a bike?
A. Once or twice I have. My husband bought me one and we discovered that I couldn’t use it. It sits in my garage.
Q. Well when did you buy it?
A. He bought it for me while living in Newcastle.
Q. When was that?
A. It would have been maybe end, end of 20.
Q. Right so nine months after the fall?
A. Yes.
Q. When your pain level is eight or nine out of ten?
A. Yes.
Q. Your husband thought it fit to buy you a bike?
A. We were looking for something I could do for exercise.
Q. But an outdoor bike, not an indoor bike?
A. Yes so that I could be outside and exercise and I can’t use it. I tried.

The plaintiff’s husband gave evidence that he bought the bicycle as a gift for the plaintiff to encourage her to go bike riding together. However, he says she only managed to ride the bicycle twice. I accept their evidence as being truthful. Therefore, I make no unfavourable findings on this topic.

Use of medication

The defendants say that so far as the plaintiff’s use of medication is concerned (Ex 1), it demonstrates that she has been using Venlafaxine (an anti-depressant) consistently before and after the subject accident. Her evidence that she only took them before to help with sleep, is to be rejected when at the same time she said she did not suffer from sleep disturbance prior to the subject accident. The following exchange is illustrative (T.54):

Q. Are you trying to distance yourself from the use of this medication for your mental health concerns at the time?
A. No, I have no issues with my mental health.
Q. You're prepared to accept, aren't you, that for a significant period of time, up until 2000 and, is it 15, when you were admitted?
HER HONOUR: But you said 2016?
WITNESS: 2016.
AHMAD
Q. Sorry, 16. You accept, don't you, that there was a requirement for you to be treated with antidepressants up until that period. That's right, isn't it?
A. I've answered that in the fact that it was not just for mood, it was also to assist with sleep.
Q. In fact, as I said to you yesterday, on 2 August 2019 you had written an email to her saying, "I've hit rock bottom. I think that everything has really taken its toll. David is back from overseas and it is not good. I will take that appointment please." Yes?
A. Correct.
Q. You also gave evidence in an answer to my question that Ms Allen was your counsellor post the incident, isn't that right?
A. Post?
Q. Post 18 January 2020.
A. I have seen her, yes.
Q. But the truth is, isn't it, that she has been your counsellor for many years prior to the incident as well?
A. Not many years, no.

Q. What would you say is many years? When did you start seeing Ms Allen?
A. I can't recall what year.
Q. 2017, 18?
A. Perhaps 18.

In fact, I accept the plaintiff’s evidence on these topics. She may well have had prescriptions dispensed and her husband attended the pharmacy to get the prescriptions filled, but she did not actually take them. As to her reporting of her marital relationship to Vanessa Allen, I will deal with this topic later in this judgment.

The reliability of Mr Furner

So far as the credibility of Mr Furner is concerned, the plaintiff’s counsel submitted at the hearing that the defendants' liberal use of the word "dishonest", so far as these witnesses are concerned in the submissions should be put to one side.
For example, "Mr Furner had no hesitation in being dishonest with this Court." Those are very serious matters, and they should have been put to Mr Furner, and they weren’t (T353.31-38).
Otherwise, Mr Furner accepted that the plaintiff did have good days and did do vacuuming and participated in the washing. Otherwise, she can put the “Hello Fresh” semi-prepared meals together.
Mr Furner also accepted prior to the accident he would put the washing on the line, clean the house, make dinner, mow the lawns, take out the garbage.
The defendants’ attack on Mr Furner’s credibility is also to be questioned. Specifically, his denial of marital problems.
The plaintiff’s evidence is that towards the end of that year the plaintiff travelled to the UK to visit her husband and there was a time of marital disharmony. The plaintiff corresponded with her treating psychologist about this. The plaintiff and her husband worked through their issues and in his opinion their marriage is as strong as it has ever been. The Court should reject any submission that the Furner’s otherwise healthy and happy nearly 30-year marriage has been indelibly marred by this unhappy time.
Counsel for the plaintiff also submitted that the Court should not accept any submission that the credit of this decent, hard-working plaintiff in this case, is remotely tainted by her decision to conceal the time of marital disharmony and her subsequent correspondence with her psychologist about it.
I accept on the topic of marital disharmony, the plaintiff’s evidence was corroborated by her husband. The plaintiff’s evidence was that prior to the accident, she enjoyed a very good relationship with her husband. I accept that the plaintiff and her husband had some short periods of marital disharmony, but I do take into account that, as the plaintiff’s counsel submitted, most marriages encounter problems from time to time. Mr Furner initially denied marital problems in 2018, but was prepared to admit that the plaintiff had been stressed and that was caused by him moving around for work.
I accept that Mr Furner gave truthful evidence, save for at first he did try to minimize the period of marital disharmony, but then admitted that it was more serious. It is my view that he viewed that period of their married life through his lens, as not being as serious as the plaintiff viewed it. I accept both the plaintiff and Mr Furner’s evidence that they have moved on from the problems that occurred when they were living in different countries, he in the United Kingdom and when he first returned to Australia.

Credibility of the second defendant – Ms Kondouras

The plaintiff’s submissions

In Ms Kondouras’ first evidentiary statement dated 6 June 2022 at [3] she stated at her husband resurfaced the driveway every 2 years. In her supplementary evidentiary statement dated 16 September 2022, (Ex 9) she stated at paragraph [1] that she corrected her evidence to be that it was not every two years but very often her husband would gurney the driveway.
Counsel for the plaintiff submitted that Linda Kondouras, the first defendant’s wife was unreliable and nothing can be gained from her evidence (T370.12-17). It was submitted that her evidence was unimpressive and the Court should take a very dim view about the text message on 25 January (Ex F). While it is after the fact, he submitted that the Court would be left wondering what that agent did know and further that there is absolutely no prospect that anyone would simply send someone a text message saying, “the driveway is drying, I'll leave it to you.” That had to be a response to something Ms Kolarovski either called to discuss or a text message balloon has been deleted (T371.38-50).
Counsel for the plaintiff emphasised that the second defendant was not released from liability, simply because she didn’t paint the driveway herself (T371.25). Rather, it was suggested that “Ms Kondouras wasn't the hapless witness that one might have thought or she's portrayed to be’. She knew that there's a problem with that driveway” (T371.27-29).
While the plaintiff’s counsel accepts that the second defendant was doing her best, but submitted that her memory was terribly unreliable. The evidence contained inconsistencies the greatest of which was that her husband had never repainted the driveway, only ever gurneyed or brushed it [my emphasis].
The second defendant took no active part in any driveway maintenance her husband performed and, with great respect to her, if she cannot now even recall the driveway had been repainted by her husband a week before the accident, she cannot give any reliable evidence about the product he used.
Relevantly, however, the Court should take from the second defendant’s evidence the following: the absence of any incidents on the driveway in the previous 20 years is irrelevant, as it had been painted by her husband a week before the plaintiff’s fall. She acknowledged the driveway was steep and she acknowledged her hope that many people would be attending the property on foot and walking up the driveway.
The second defendant understood it was important for her to be accurate in her statement; she was concerned to ensure her evidence was accurate therefore she made her second statement to correct some matters in the earlier statement (“yes, at the time, yes I thought what I said was correct, but then in revisiting it and rethinking it, I did change a few of the wording is, yes I did” (T323.45); in answer to the question “did you read your second statement in the last two weeks and were you satisfied that its content was precisely correct? She responded, “it was, it was correct for me, yes…” and I interpose here that to say she changed a few of the wording, is somewhat of an understatement.
One of the corrections made in the second statement was the removal of the word “anti-slip” (for reasons advanced above, however, no representation made by the second defendant as to her knowledge about paint or painting of the driveway can be accepted as the second defendant had no recollection of her husband ever painting it).
The second defendant admitted in cross-examination that her memory had faded with age (T324.5-9). Counsel for the plaintiff pointed out that the second defendant’s memory was prone to error (T325.20-42). The second defendant confirmed that her recollection of the first defendant resurfacing the driveway was incorrect and had to be amended later in her second statement (T326.0-18).

Resolution

Overall, I found Ms Kondouras’ evidence to be unconvincing and contradictory. The change in her evidence is very significant. In her supplementary witness statement, she changed her evidence at paragraphs [1] and [2] as follows:

“[1] I refer to my previous witness statement dated 6 June 2022 and refer to paragraph 3 and I wish to correct my statement. My recollection was that it was not every two years but very often my husband would gurney the driveway frequently with a high-pressure hose, sometimes, every few months.
[2] In the time we lived in the property, I have a recollection of my husband re-painting the driveway with a charcoal paint, recommended to him by professionals. He did that when he considered on the basis of my understanding when the driveway was losing its colour from jet black to lighter grey.”

She changed her evidence from “her husband resurfaced the driveway every 2 years” to “it was not every two years, but very often” her husband “would gurney the driveway”. From her husband resurfacing the driveway every two years to he would gurney the driveway, but it was not every two years and further she did not recollect that six-months prior to the accident her husband painted the driveway: see [6] of the latter statement.
In cross-examination, Ms Kondouras’s evidence is that she does not remember her husband painting the driveway in the week prior to the accident (T337.44-46). She later stated that she was not involved at all with the maintenance of the driveway, and this was her husband’s role around the house (T339).
I accept and prefer the earlier email between the solicitors dated 7 October 2020, which was somewhat closer in time to the accident where it was admitted that the first and second defendant’s husband that her husband had painted the driveway a week prior to the accident. This also accords with the admission made in the defence. Hence, I make a finding that the driveway was painted by the first defendant a week prior to the accident.

Credibility of the first defendant, Mr Alan Jackson

So far as Mr Jackson’s evidence is concerned, in his wife’s first statement, she sets out her husband’s current medical conditions. At [7] she deposes that her husband suffers from epilepsy, memory loss, Parkinson’s disease, skeletal myopathy and is assessed by Aged Care as a level 3 in home care. Attached to her affidavit at annexure A is a report of Dr Patricia Caruana, a general neurologist and neuroimmunologist of Lake Macquarie Private Hospital dated 1 July 2022. Dr Caruana has been the first defendant’s treating neurologist since 20 May 2022 (over 2 years after the accident). Her report relevantly reads:

“Alan is suffering from a number of metabolic disturbances that are related to long term medication use for his epilepsy.
…
Alan’s ability to think and to make decisions has been found to be significantly impaired when we undertook cognitive testing and Alan can currently not make decisions for himself. Linda is the decision maker.
…
Alan is, in my opinion, currently not medically fit to attend a court hearing.”

Importantly this report does not address what the first defendant’s cognition was like at 18 January 2020, the date of the accident.

Resolution

I accept the evidence of Mr Jackson’s treating psychologist, Dr Patricia Caruana, that Mr Jackson is cognitively impaired and unable to give evidence. Therefore, the court can only rely on the evidence provided by his wife, Ms Kondouras, which I found earlier to be contradictory and unreliable. AS to the first defendant’s cognition at the time of the accident is concerned, it is my opinion that the text messages sent by him to the fourth defendant prior to and after the plaintiff’s fall are perfectly lucid.

The plaintiff’s expert evidence on liability

Denis Cauduro, safety management, ergonomics and building Consultant, provided an expert liability report dated 15 February 2021 on behalf of the plaintiff. The defendants did not rely on any expert report on liability. Mr Cauduro was not required for cross-examination. The factual assumptions that Mr Cauduro set out in his report have been proved at trial.
Mr Cauduro accepts that such an incident could have occurred as a result of an inadequate level of slip resistance being available in wet conditions on the driveway surface at the defendants’ premises on which she the plaintiff was walking. He added that there was a failure by the defendants to carry out a risk assessment of the wet floor area, prior to allowing persons to walk upon it.
He considered the various forces that would have been associated with the loss of balance and fall that the plaintiff experienced following her slip and fall on the external driveway as the primary or proximal causes of the physical injuries that she apparently sustained. Among the more antecedent or distal causes he would place most emphasis on the apparent failure of the owner/occupier/defendant to have implemented systems for the identification of risks and control of potential hazards to safe pedestrian movement at all locations within the defendants’ external driveway to which workers/persons could, and were apparently routinely permitted, to gain access to in the immediate vicinity of the dwelling. He would also include as distal causes the associated failure of the owner/occupier/defendant to have ensured that safer (i.e. more slip resistant pedestrian surfaces) were available at the residence, especially on the external driveway at all times, or that appropriate actions were effectively implemented.
Regarding probability and foreseeability, Mr Cauduro opined that there is a distinct probability that a person might experience a slip and fall injury, when walking within the steep external entrance driveway of a residence when they step on a section of the surface which has been contaminated by water. There is a substantial probability that a slip of this type will result in a loss of balance and fall.
Conversely, it is very unlikely that a slip can occur in circumstances in which the pedestrian surface in combination with the pedestrian's footwear provides adequate frictional contact. If the surface had met long-standing recommendations in relation to the slip resistance of pedestrian surfaces generally and in relation to Table 1 of HB 197:1999 highlighting that any surface with a coefficient of friction lower than 0.35 is marginally unsafe and Table 2 categorising at a very high contribution of the floor surface to the risk of slipping when wet, it is unlikely that the plaintiff would have slipped and fallen at the subject location and in the manner she described.
It is Mr Cauduro’s opinion that it was foreseeable and should have been foreseeable to the defendants prior to the accident, that the combination of pedestrian surfaces that were slippery when wet or otherwise contaminated with the predictable presence of water, due to inclement weather would impose on pedestrians at the premises a significant and predictable risk of slipping and falling. There is an empirically established and quite high probability that a person who suffers a slip and fall while walking within the built environment might suffer injury.
In forming his opinion, Mr Cauduro had regard to:

the amount of publicly available information about the high incidence of slips or trips and falls as causes of injury in the built environment generally;

the large numbers of individual pedestrian movements that could be expected to take place upon the external driveway;

the fact that external driveway will obviously be wet, during inclement weather;

the fact the driveway had been painted by the first and second defendants;

the fact the driveway is steep at 10 degrees;

the recommendations provided in HB 197:1999 in relation to a surface that achieves less than average SRV of 25 will have a very high risk of being slippery when wet;

the requirement of the (now superseded) AS 3661.1 for a level pedestrian surface to be capable of producing under standard measurement conditions a mininum coefficient of friction of 0.40 in order for it to be regarded as slip resistant; and

the measurements that he made on the driveway on which the incident occurred.

In conclusion, it is Mr Cauduro’s opinion that it should have been foreseeable to the defendants, that eventually a person walking on the very steep driveway, when it has been contaminated with water or other potential lubricants, would experience a slip, loss of balance, fall and injury, unless appropriate preventative measures were effectively and unfailingly implemented.
He also noted that the painted concrete surface and the measurements he achieved highlighted that the driveway fails the Australian Standards when wet. He opined that the first and second defendants have not provided safe access and egress to the property for the workers and visitors. They should have known the steep driveway was a hazard when wet.
There was no real dispute as to how the accident occurred. I accepted both the plaintiff and her husband’s evidence on this issue. The plaintiff slipped once and then after a few steps when she starting to slip on the slippery surface for the second time, her husband had hold of her and was able to steady her, so she avoided falling for a second time. This is the factual evidence that Mr Cauduro relied upon to reach his opinion. I accept his evidence as his opinion accords with mine. The proceedings are governed by the Civil Liability Act.

Liability Principles

Section 5B and 5C of the Civil Liability Act read:

5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the Court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.”

5C   Other principles
In proceedings relating to liability for negligence—
(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

The inquiry in s 5B of the Civil Liability Act asks what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: See Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.
In normal circumstances the expectation that the plaintiff would exercise reasonable care goes not merely to the assessment of breach of duty, but is “a specific element contained, as a matter of law, in the scope of the duty of care”: See Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 (‘Dederer’) at [45] per Gummow J.
The effect of s 5C(b) of the Civil Liability Act is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301.
The test is always whether the plaintiff, has proved that the defendant, who is owed a duty of care, has not acted in accordance with reasonable care: Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. The fact that there were measures which could have been taken to avert or diminish the risk that materialised do not establish breach of duty: See Thornton v Sweeney [2011] NSWCA 244.
A plaintiff must fail in an action for negligence framed in terms of a failure to take precautions, unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [50].

The plaintiff’s submissions

The plaintiff, as a first-time visitor to the property, was obliged to accept that wet surfaces are more slippery than dry surfaces then so must the defendant who repainted his inclined driveway with an unspecified product only a week before the incident.
Mr Furner was not challenged as to his visual observation of the driveway being shiny or his tactile observations of the slipperiness of the driveway on the day of the plaintiff’s fall (CB68, para 21).
From a lay perspective just how slippery the painted driveway was when wet is evident from the plaintiff’s unchallenged evidence that after her fall she observed Ms Johnson slipped on the driveway, as she subsequently remarked to the plaintiff “I went to check the driveway out, and I slipped on it as well. It is very slippery”.
It was not put to the plaintiff that Ms Johnson’s statement that she also slipped was wrong or unreliable. It was not put to the plaintiff she was mistaken about the remark Ms Johnson then made to the plaintiff about the slipperiness of the driveway.
The Court should find that all defendants knew, or ought to have known, it was likely that many people would visit the property after the driveway was painted for the purposes of inspecting it during ‘open homes’.
The Court should find that all defendants knew, or ought to have known, visitors to the property for ‘open home’ inspections would walk up the driveway and take the stairs up to the front door of the house.
The Court should find that all defendants knew, or ought to have known, some of the ‘open homes’ would take place during rain and that the driveway would be wet.
While there is no evidence that at any time prior to the driveway being painted any occupant or visitor to the home slipped on the driveway, the only unchallenged evidence is that within a week of the driveway having been painted by the first defendant, the plaintiff slipped (twice) and thereafter the employee of the fourth defendant, Ms Johnson, slipped when walking on the wet driveway.
The plaintiff has tended expert opinion following scientific testing confirming that even 12 months after the accident the painted driveway surface was dangerously slippery when wet.
On the contested liability issue in this case, Ms Johnson can fairly be said to be in the defendants’ camp and she was not called to give evidence to contradict the assertion that (i) she herself slipped on the wet driveway or (ii) the remark the plaintiff heard her make about it being ‘very slippery’. I interpose I have already agreed with this proposition.
The Court discovered during the cross-examination of Ms Kolarovski that not only is Ms Johnson available but that those representing the defendants were provided with her contact details. However, I have already made a Jones v Dunkel inference that Ms Johnson’s evidence would not assist the defendants’ case.
There is evidence the first defendant corresponded with the fourth defendant by text message about the driveway on 25 January 2020 (CB129) and again on 13 March 2020 (D130). Self-evidently, the topic of conversation in the first text message from the first defendant pertained to the wetness of the driveway and it is tolerably clear there was an understanding of a safety issue with the driveway is evidenced in the second text message.
As to Mr Kolarovski’s evidence, the plaintiff submitted that the entirety of her evidence about when she first knew there was a slipperiness issue with the driveway is unreliable. For the reasons set out earlier in this judgment, I agree.
It is completely implausible that the first defendant would send the real estate agent the text message “driveway is drying. will leave it up too (sic) you” without it being in response to a question asked by the agent. Ms Kolarovski’s stoutly declined to accept the text message was in response to something she had asked (T255.22) then retreated to saying she could not recall whether she had asked her client a question (T255.26) then argued that the text message could be read as a standalone message (T255.34) then retreated again into not being able to recall (T255.47).
No greater demonstration of the unreliability of this witness’s evidence was her robust rejection that the driveway had been repainted a week before the accident (T256.29) which is admitted by the first and second defendants. The witness may have been forgiven for answering “I don’t recall” to that question; Instead, she chose instead to categorically reject the proposition. The Court can repose no confidence in the witness’s memory of dates, as to when she knew of a problem with the driveway. The Court is entitled to find the agent was aware of the problem prior to the plaintiff’s fall.

The defendants’ submissions

The plaintiff’s case is that on a date prior to 18 January 2020, the first and second defendant performed or caused to be performed remedial works including painting on the sloping driveway. This allegation is admitted.
More significantly an admission was made that the driveway was painted approximately a week prior to the date of the incident. The admission was, that it was painted by “our client.”
The first defendant, Alan Jackson, ought to be attributed with the selection and paint of the driveway. However, he cannot give evidence as he suffers from memory loss.
The second defendant’s evidence as to whether the driveway was painted or not is unreliable, unless her evidence was corroborated, the court should not accept it.
It is not challenged that the charcoal paint that was used was recommenced to the first defendant by professionals. I interpose that the second defendant was not able to give evidence to this effect and this topic was not mentioned in evidence. As there is no evidence to this effect, it is not known whether the first defendant used charcoal paint, nor whether it fulfills the description of non-slip.
The plaintiff’s case is then that the said works rendered the driveway dangerously slippery. The plaintiff’s case is that these circumstances gave rise to a risk that a person might slip and fall and suffer injury if reasonable measures were not taken to prevent that risk of harm.
Viewed through this lens, if the case is about using inappropriate paint, then two conclusions are fundamental to establishing liability that use of the product itself manifested a risk and that the first and second defendants knew (or ought to have known) that it was slippery when wet before the accident.
The insurmountable problem for the plaintiff is that, first, it has not undertaken a test of the appropriateness of the product used on the driveway as distinct from the driveway itself or secondly, and more significantly there is no evidence to impugn foreseeability of risk.
It would place an unreasonable burden on a defendant to know positively that the “anti-slip paint” that’s been applied to the driveway was of a kind that could create a risk of injury, especially in the location where the plaintiff slipped.
The reasonable consumer is entitled to rely on a product achieving its intended purpose, specifically a slip resistant pain reducing the risk of slipping. The test is a reasonable person in the position of the plaintiff.
Mr Cauduro’s stated opinion is that “in summary, in my opinion, it is reasonable to accept that the pedestrian surface would have been adequately slip resistant when clean and dry, it was not dry at the material time and who gave evidence that testing took place one year after the event. The plaintiff adduced no evidence to confirm the driveways condition or changes in the condition since the event.
For the plaintiff to succeed against the homeowners, given that the second defendant was not involved in the painting, it must specifically be able to satisfy to the Court that the first defendant knew or ought to have known in that week, that the paint he applied was going to create that risk of harm in the week prior to the accident and it is easy to draw an inference due to the marked changed in the second defendant’s evidence.
That becomes even more difficult in circumstances when there is not a scintilla of evidence that in that week (save for the subject accident) there was a rain or any circumstance following the painting to give rise to knowledge or imputed knowledge of the risk to the first defendant (or any other defendant for that matter). The hindsight - join the dots approach – is not a proper basis to assess the risk and the reasonable response to that risk.
The plaintiff adduced expert evidence from Mr Cauduro who inspected the premises one year after the subject accident. He opines that the surface when wet, combined with the gradient (in the absence of a handrail) is inadequately slip resistant when wet. His report in essence contends that at all material times, the occupiers ought to have taken precautions at large to any occupant that might walk past or enter the property. His report does not and cannot identify the foreseeability of the risk as a consequence of the paint that is applied.
The liability report does contend the painted surface is slippery when wet, but to impute liability, it must identify the precautions to be taken to guard against the specific risk. In this case the only guard might have been the introduction of a slip resistant paint.
The fourth defendant is in no better position, see for example questioning from T238-30 of the fourth defendant’s cross examination:

Q. And if you see something that's obviously perhaps not attractive about the property, in preparing it for opens, you'd give some advice to your clients about how to beautify the property, correct?
A. Yeah, we do.
Q. The house had been opened I think you said a dozen times before?
A. Approximately.
Q. No real interest?
A. Maybe not at that stage.
Q. Did you suggest to Mr Jackson and Ms Kondouris that it might be a good idea to beautify the driveway by painting it?
A. No.
Q. You knew though, didn’t you, that that step had been taken about a week before 18 January, didn’t you?
A. No, I didn’t.
Q. You had no idea that Mr Jackson had painted that driveway a week beforehand?
A. No.
Q. When did you last see the property before the time of this accident?
A. Most likely a week before.
Q. And then when you came to see it on the 18th, you told us about Brittany said something to you, did you observe that the driveway had been painted?
A. No.
Q. Do you say that it hadn't been painted?
A. I don't know.
Q. Did you have a look?
A. Of course you look. It's there in front of you.
Q. Were you able to discern any difference between how it looked the week before, and on the 18th?
A. No.

Nothing was put to Ms Kolarovski that impugned her knowledge of the driveway or suitability of it. Most notably, nothing was put to her that might attribute liability to the fourth defendant.

Resolution

The first, second and fourth defendant’s owed duties of care to the plaintiff. The scope of their duties of care. From the first and second defendant’s evidence and the defendants’ admission, the first defendant had painted the driveway one week prior to the accident. The plaintiff observed that the driveway was wet from the morning’s rainfall. The plaintiff’s husband observed that the driveway looked very shiny/glossy. What sort of paint was used is only in the knowledge of the first defendant. As there was no evidence given by the first and second defendants, as to type of paint allegedly used on the driveway, but not pleaded nor established by the first defendant or an expert, I do not accept that it was a non-slip paint. In any event, the risk of a person slipping on the driveway was in any event foreseeable. The risk was not insignificant. The fact that the plaintiff cannot identify the paint used on the driveway is not to the point. As I have earlier set out, the type of paint is within the defendants’ knowledge, not that of the plaintiff. The first defendant removed the reference to “anti-slip” [paint] in her second statement.
It is admitted that the fourth defendant was also an occupier of the property at the time of the plaintiff’s accident. She too was under a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury. The evidence that I have accepted was that the driveway when wet was very slippery. The fourth defendant was obliged at the very least to warn prospective buyers about its slipperiness, such as a warning sign to that effect or blocking off the slippery areas of the driveway.
The scope of the duty of care is to ensure that the people, such as the plaintiff, inspecting the open for inspection could safely enter and leave the property without slipping and falling on a very slippery driveway when wet. There was a high probability that a person such as the plaintiff would slip and fall on the driveway that became slippery when it was wet and appeared to be very shiny/glossy. There was no dispute that it had been raining in the morning before the plaintiff attended the “open for inspection” at the property. If a person slipped and fell; there was a very high risk that the harm would be serious. A reasonable step for the defendants to take would have been to warn the people attending the “open for inspection” with notices and/or blocking off the slippery areas of the driveway. A reasonable person ought to have known that the driveway was sloping and became slippery when wet (See Mr Cauduro’s report). Taking this precaution to avoid the risk of harm is not burdensome. While making a driveway on private property non-slippery is a good thing. I do not think that it impacts on the social utility. It is my view that the plaintiff has satisfied the requirements of s 5B and 5C of the Civil Liability Act.
In these circumstances, it is my view that the first, second and fourth defendants failed to exercise reasonable care that constituted a breach of their duties owed to the plaintiff and that breach of duty of care caused the plaintiff to suffer injuries and disabilities. The plaintiff has satisfied sections 5B and C of the Civil Liability Act.

Causation – the law

Section 5D of the Civil Liability Act relates to causation. It reads:

5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).

…
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

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

To establish causation, the plaintiff is required to prove on the balance of probabilities that had the defendant taken the steps identified, the injury to the plaintiff would not have occurred or would have been avoided.
In order to succeed, the plaintiff must show that it is more probable than not that, but for the breach, the “particular harm” which materialised would not have been suffered. This involves two elements: “factual causation” and “scope of liability”: see Adeels Palace at [42]; Wallace v Kam [2013] HCA 19, 250 CLR 375 at [12].
Determination of factual causation under s 5D(1)(a) is a statutory restatement of the “but for” test of causation. That determination is “entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E”: Wallace v Kam at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].
The determination of “scope of liability” involves a value judgment (Wallace v Kam), as does the determination of “factual causation”: see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].
The requirement under s 5D(1) for the plaintiff to demonstrate “factual causation” and “scope of liability” do not include the common law concepts of material contribution or increase in risk: see Woolworths Ltd v Strong [2010] NSWCA 282 (“Woolworths”) at [47]-[48]. Rather, causation requires a determination that “the negligence was a necessary condition of the harm”.

Causation

The medical expert evidence as to the plaintiff’s physical injuries was addressed in the conclave of Associate Professor Shatwell (‘Prof. Shatwell’) and Dr Giblin. They largely agreed that the soft tissue injuries sustained would have had a good prognosis of resolution “within a few days, or weeks or three months being the maximum.” This prognosis has turned out to be incorrect.
They also agree that as at 22 January 2020 an MRI revealed a disc protrusion with likely compression of the exiting C6 and C7 nerve root.

Prior neck pain

Several weeks before the accident the plaintiff experienced neck pain and stiffness after packing, moving and unpacking two houses and sleeping awkwardly (T48.45). On 31 December 2019, she attended upon her GP, Dr McGeoch. The doctor’s clinical note records: “Bilateral neck pain. Not swollen. Tender. No deformity. Movement restricted”.
The clinical note indicates the doctor prescribed Endone and issued a referral for a cervical CT scan (the doctor’s concern in that regard is evident from his own note; he thought it was a cervical neck spasm on history of breast cancer in the past).
The plaintiff thought that the pain in her neck was trivial and was due to her physical exertion by physically moving furniture etc. out of her house and unloading furniture into the new home, so she did not proceed with the scan and although Mr Furner filled the prescription, she did not take the Endone (T42.22-26).
It should also be noted that in the Lake Macquarie Private Hospital Emergency Department records dated 19 January 2020 (Exhibit 8), Dr Eleanor Wright noted the following:

“Couple of days of neck/back pain - had a “knot” in the back and had been getting this massaged”.

The defendants’ submissions

It is the defendant’s case that consistent with its medical evidence is that the C6/C7 pathology is not causally related to the incident.
The issues identified at the C6/C7 were not the result of acute injury and treated by Dr Hansen by way of cervical arthroplasty (replacement prosthetic disc surgery), following which there have been ongoing complaints.
To the extent that there is contradictory opinion in Dr Giblin’s report or any other treater, their opinion would not be preferred in circumstances where the reasoning process is not exposed and his bare opinion is as follows. Without the benefit of a reasoned hypothesis the Court would have difficulty in rejecting the opinion of Prof. Shatwell.
Otherwise, the opinions expressed by Prof. Shatwell is as follows:

“Ms Furner’s description of the injury and subsequent events is detailed in the History section of this report as she recalled them today. I note there was limited information from the medical records of Ms Furner’s General Practitioners at XXX Medical Centre. This may be because she had recently moved to Charlestown in Newcastle. It is pertinent that she did see Dr Peter McGeoch on 31 December 2019 with a 3 day history of neck pain with restricted movement according to the notes.
She was prescribed opiate analgesia (Endone) by Dr McGeoch which is unusual. She did not obtain the CT scan which Dr McGeoch requested.

Resolution

The plaintiff claims $1,000 net per week. Mr Furner’s expectation was that had she not been injured, his wife would have worked and would still be working now (T193.12). Dr Low was of the view that based on an ongoing inability to tolerate prolonged postural positions and maintain prolonged periods of sitting and concentrating secondary to her cervical spine injury, he considered the plaintiff unable to return to her pre-injury role in the foreseeable future. Dr Low also reported that the plaintiff was experiencing overall symptoms such as difficulty concentrating and fatigue secondary to interruption in sleep. The plaintiff reported to Ms Glancey physical restrictions associated with pain. The plaintiff reported pain when maintaining a seated position and a consequence she was unable to sit at a desk for periods of time. She reported pain when standing for longer periods.
Mr Furner noted that prior to the plaintiff’s resignation, the plaintiff couldn’t tolerate even reduced hours. Dr Low suggested that the plaintiff would require restrictions against performing any degree of manual handling using her left arm, avoidance of any above shoulder manoeuvres and avoidance of work that would require travelling for extended periods of time greater than 60 minutes. Overall, he held that the plaintiff would effectively be confined to sedentary based duties working reduced hours. With further treatment, he considered that a more realistic return to work goal would be 12 hours a week.
Dr Giblin was of the view that the plaintiff was permanently unfit to work in an environment where she has to use her upper extremities in a heavy repetitious impact fashion or for constant pushing, pulling, lifting and twisting or repetitive use above shoulder height. Any of these physical activities which would place a strain on her neck will have a tendency to increase her cervical symptoms. However, he said that the plaintiff would be fit for a full time sedentary work environment in which she can change her body habitus at will and avoid the aforementioned physical restrictions.
While it is difficult to assess the plaintiff’s future earning capacity in circumstances where she has recently undergone an operation a few weeks prior to the resumption of the part heard hearing and understandably she was experiencing very significant pain, it is to be expected that she over the coming months since the operation would have improved. However, it is likely that her pain will decrease, it is difficult to assess the degree of improvement. The plaintiff is intelligent, resilient and resourceful, she is capable of periods of casual work. The plaintiff’s pain levels will still affect her ability to concentrate and sit in a chair for extended periods of time.
The plaintiff’s overall award of damages will be discounted by 15% to take in account the usual vicissitudes of life, such as accident, unemployment, sickness and death.
While the plaintiff claims that she will work until 71, this is unlikely. I assess future economic loss on the basis that she retires at the normal retirement age of 67. The plaintiff is expected to retire in 14 years. The Multiplier (14 years – 5%) is $1000.00. As to the plaintiff’s earning capacity, I assess the plaintiff has an earning capacity of 20%. 20% of $1,000 net per week is $200. I assess future earning capacity at $1,000 npw - $200 = $800 npw for 14 years x 529.3 x 85% equates to $359,924.

Past loss of superannuation

Past superannuation is to be calculated at 11% x 180,000. This equates to $19,800.

Future loss of superannuation

I assess future loss of superannuation at $359,924 x 11%, which equates to $39,592.

Past out-of-pocket expenses

The plaintiff claims past out-of-pocket expenses at $74,130 + $145,000 and provided a Schedule itemising the payments made by the plaintiff.
The schedule of payments made by the plaintiff include Medicare payments amounting to $14,000, Medicare gap payments paid by the plaintiff amounting to $733.70, HCF Private Health Fund payments estimated to be approximately $55,000, HCF Gap payments amounting to $1,000 in hospital excess, a payment of $275 to I-MED Radiology Network for an MRI of the cervical spine, a payment of $525 for attendance at consulting rooms by A/Prof Timothy Steel, a payment of $2,000 for an assistance fee to Sydney Spine & Pain, a payment of $2,000 for pharmaceutical expenses to Priceline Pharmacy Menai and a payment of $96 to HPS Pharmacies Waratah for medication. The plaintiff has also attended extensive postoperative physiotherapy sessions for 10 months.
These are all unpaid, I assess as necessary and reasonable the sum of $74,130. I allow that amount.
Since the schedule was prepared on 24 August 2022, the plaintiff had elective surgery to have a spinal cord stimulator installed, in order to manage her pain levels. Sydney Spine and Pain estimated that this surgery would cost between $145,000. I allow $145,000. Overall, I allow $228,570.

Future out-of-pocket expenses

The plaintiff claims future out-of-pocket expenses at $150,000. This comprises of GP and specialist consultations, physical rehabilitation, future surgery, medication and counselling. Dr Giblin notes that potential complications can lead to recurrent surgical and related procedures costings not infrequently exceeding $100,000.

Resolution

Counselling

Following the accident, the plaintiff says that she has developed sadness, a hopeless mood and suicidal thoughts and have been prescribed medications to control her psychological symptoms. The plaintiff understands that she has been diagnosed with Major Depressive Disorder and Adjustment Disorder.
As per Ms Glancey recommendations the plaintiff’s requires psychological intervention. I agree with Ms Glancey’s recommendation that the plaintiff be made 15 consultations with a psychologist at a cost of $260 per hour, this equates to $3,900. I also agree with Ms Glancey’s recommendation that the plaintiff be referred to a psychiatrist and provision be made for 12 consultations with a psychiatrist. According to the Royal Australian & New Zealand College of Psychiatrists, the initial consultation fee is $405, the consultation fees proceeding are $320 per session. At 12 sessions, the fees would amount to $3,925. I allow this amount.

Medications

The plaintiff has been taking various analgesics and psychotropic medications to manage her ongoing symptoms. These include pain killers and antidepressants. In the past, she has taken Lyrica. Her general practitioner is currently prescribing her, and she is taking antidepressants. The plaintiff feels very upset about this situation, given the amount of work she had in the past put in with her mental health issues back in 2016, in order to recover from the issues, she was suffering from at that time. She regularly takes Panadol and/or paracetamol almost on a daily basis, which at time can take a slight edge off the pain. The plaintiff is currently also taking Gabapentin. She estimates that she would spend approximately $10 per week on medications. I allow this amount. I agree with Mc Glancey that the plaintiff should be provided with a therapeutic response to antidepressant medication for the foreseeable future.

Rehabilitation

I agree with Ms Glancey’s recommendation that the plaintiff be compensated for the expenses that would be incurred by participating in a pain management program.
Dr Low found that the plaintiff will require the following treatment with cost guided by recommended AMA rates. Ongoing prescription of analgesia for breakthrough pain. Access to multidisciplinary physical therapy for periods of symptom exacerbation. Treatment modalities should include physiotherapy, exercise physiology and hydrotherapy. Ongoing review with treating neurosurgeon at 6 to 12 monthly intervals and an ongoing review with general practitioner at 3 to 4 monthly intervals to coordinate her care. Dr Yu also suggested that multidisciplinary pain management program of physiotherapy and psychology would be appropriate.

Future Surgeries

Prior to the accident, the plaintiff has had no major operations besides a mastectomy for bilateral breast cancer in 2012, followed up by a total hysterectomy. On 1 February 2020, the plaintiff underwent a C6/C7 cervical anthroplasty with Mobi-C implant on 1 February 2020 performed under the care of Dr Hansen. On 5 January 2021, Dr Bentivoglio recommended that if the plaintiff still had significant C7 nerve root compression, she would need to have further surgery to release the nerve.
Dr Giblin stated that the plaintiff will need life-long access to advice and investigations by her treating surgeon in relation to recurrent symptomology in her cervical spine. The timeline is indefinite and the day to day costs are difficult to determine. He said that future surgical considerations may arise and this would include but not be limited to, a cervical disc revision surgery with the all up hospital, medical and ancillary costs of at least $28,000 barring any complications.
Dr Giblin is in general agreement with Prof. Shatwell's comments but is more reserved because he has the concern that foreign material in the cervical spine remains a source of liability in terms of complications such as infection, loosening and periprosthetic fracture. In his experience, having practised in the one address for over 40 years, he has seen many of these surgical procedures run into complications after about 25 to 30 years and the recurrent surgical and related procedures costings not infrequently exceed $100,000. The lifestyle change is permanent, dramatic, and involves an incapacitating loss of independence, and the period of formal rehabilitation can last for 12 months or more.
In the next 25 to 30 years, there is a chance that the plaintiff may have to undergo recurrent surgical and related procedures. The approach I will take is that set out in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 as per Deane, Gaudron and McHugh JJ at p 643:

“But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent.”

I asses the likelihood of this surgery taking place at 30%, this equates to $30,000.

Resolution

Taking into consideration all these expenses, I calculate the plaintiff’s future out-of-pocket expenses at $119,130.

Past Attendant Care

The law

Section 15 of the Civil Liability Act reads:

[15] Damages for gratuitous attendant care services: general
(1) In this section—
attendant care services means any of the following—
(a) services of a domestic nature,
(b) services relating to nursing,
(c) services that aim to alleviate the consequences of an injury.
gratuitous attendant care services means attendant care services—
(a) that have been or are to be provided by another person to a claimant, and
(b) for which the claimant has not paid or is not liable to pay.

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—
(a) there is (or was) a reasonable need for the services to be provided, and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)—
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months.

The plaintiff’s submissions

Mr Furner was not seriously challenged about the amount of additional domestic housework he has performed as a consequence of the plaintiff’s need for such assistance since her accident (paras 46, 47 & 52 C072).
In respect to the assessment of gratuitous care damages, the plaintiff submitted that the discourse between the Court and the cross-examiner at T269.46 – T270.23 makes it tolerably clear the Court has and should bring to bear on the findings ordinary experiences of life. The defendants’ protestations about the children being ‘able’ to do more for themselves prior to the accident (in the words of the court ‘aspirational’ (T270.17) misconceives the statutory requirements set out at s 15(2) of the Civil Liability Act.
If the court is satisfied that there has been a (a) reasonable need for the services provided by the family members and (b) that need has arisen solely because of the injury and (c) the services would not have been provided to the plaintiff but for the injury then so long as the threshold in s15(3) is met, attendant care damages ought be awarded.
The plaintiff has given a full and detailed account of the circumstances of the Furner household’s division of housework prior to the plaintiff’s accident as compared to since. It should be accepted that the plaintiff performed virtually all the domestic chores (at that stage managing 2 households) but has needed significant support from her husband and children solely as a result of her injuries since the accident.

The defendants’ submissions

Relevantly, the evidence of Isabella at p 228 was clearly given in response to the timeframe before the accident. The evidence given by each of the children as to the amount of care they have given their mother was not distinct as to period of time. The evidence was at an impressionistic level an embellishment.
More relevantly however, the touch stone to the claim is reasonableness. Section 15(2) also provides that no damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—(a) there is (or was) a reasonable need for the services to be provided.
In this respect while the Court may well consider a 22-year-old male living at home is usually dependent on his mother for his basic needs, it is not reasonable to compensate the plaintiff for no longer being able to do that work, to fulfill that need of her dependent adult son. His evidence was that he was quite otherwise sufficient to run boxing classes and hold a professional job.
This is also extends to the reasonableness of being compensated to manage all of the domestic chores of two homes, This is especially so when the plaintiff left to live with her daughter in Sydney from March. While her husband and on remained in Newcastle.
More specifically the unchallenged evidence of the Dr Giblin was that she has been undertaking 70% of the domestic chores, leaving the heavier intermittent matters to family members. This is despite Mr Furner conceding that she has done the vacuuming.
Both Drs Giblin and Shatwell do not establish that she has met the threshold, nor is there any cogent evidence to suggest that she had 6 hours per week of domestic services for a continuous six months.
The plaintiff claims 21 hours per week. This is a gross embellishment of her true care claim and for from the bounds of reasonableness. The plaintiff was cared for 2 hours a week for 3 months. The cost of care was $30 per hour for 13 weeks.
The plaintiff claims 2.5 hours of gratuitous care per day from March 2020 to October 2020, a period of about 240 days. The experts agree care was required for three months following the accident. Thereafter there is a disagreement on the extent to which care is reasonable. The plaintiff does not establish the relevant threshold in s 15 of the Civil Liability Act.

Attendant care evidence

The plaintiff’s husband would easily spent 2-3 hours a day providing the plaintiff with assistance and doing all the housework at Charlestown, some of the housework when down at Bangor and 1.5hrs/day of housework at the Charlestown house. Since moving back to Sydney, he is easily performing 1-2 hours per day of housework which he did not do before his wife's injury.
I accept that the plaintiff will be able to carry out more tasks than she has been due to the latest surgery which should result in her experiencing less pain. However, she never will be able to perform heavy and repetitive movements.
The plaintiff’s daughter, Bella, spent 60-90 minutes per night performing the activities for her mother. Kyle would come home between 10-11am each morning to check on his mother and provide her with any assistance she needs. Since his mother's accident Kyle estimates that he has to perform between 4-6 hours/week of housework, and this continues to date.
I have already set out the plaintiff’s husband’s evidence on attendant care earlier in this judgment.

The Evidence of Isabella (‘Bella’) Furner

Bella (after some initial confusion caused by poor AVL communication from the United States: see T228.5, T228.21, T228.49, T229.15, T229.21, T231.21, T231.25) gave domestic care evidence the essence of which was that prior to her mother’s fall she was busily occupied with her own endeavours and, aside from making her own breakfast and tidying her own bedroom, did not volunteer to assist with house work leaving her mother to do it.
The fact that prior to the accident there was some frustration between mother and daughter and a request by the plaintiff for her daughter to help merely confirms the plaintiff was performing all the housework (T230.43).
The assistance Bella has provided since the plaintiff’s accident is set out at paras [11]-[14] of her evidentiary statement (C078).

“[11] Once mum moved back into the family home with me in around March 2020, it was clear mum was in no condition to perform her previous housework. As a result, I did all of the house work and looked after her. That helped when he came to Sydney.
[12] Shortly after mum returned to living in Sydney, mum and dad purchased a house at [XXX]. which is the property we currently live in. That is a six- bedroom, three-bathroom, three story house, with a pool and large backyard with grass. There is no carpet throughout the house, as it is made up entirely of floorboards and tiles.
[13] From April - October 2020 inclusive, it was only mum and I living together in Sydney. I was working and studying dance every weekday from 8am-3pm and would subsequently teach at the dance studio from 4-7pm each night. I cooked cleaned and did laundry prior to leaving for dance each morning. That would take me approximately 60-90 minutes each morning.
[14] I also attended to whatever chores were necessary at night upon my return from the dance studio, including mopping the floors and cooking. Although mum was person living in the house at that time, it did become quite dirty during the day, mainly due to the dogs, as they lived in the house, and one of them was still at puppy at that time. I would estimate, I spent 60-90 minutes per night performing the activities for mum which I have stated above.”

Bella confirmed that upon her return from the United States in February next year she will return to providing domestic assistance for her mother.
Isabella (“Bella”) Furner is the plaintiff’s daughter. She was born in XXX 2002. She is aware that mother was injured in an accident on 18 January 2020.
Prior to the accident, she did not perform any of the domestic chores. Her mother would pretty much do everything in the house, as she was a “clean freak” and very particular about the cleaning and the day to day running of our family home.
Her mother did all the cooking, shopping, cleaning, laundry, mopping and even mowing the lawns. Her home was always pristinely clean and Bella said this was the case as far back as she can remember.
In terms of meals and cooking, her mother would cook for her entire family every night with the exception of Fridays prior to the accident, as they had 'Pizza Fridays' in their house as a treat.

As her mother obtained work up in Newcastle, her mother lived with her father during the week in Newcastle, but came back to Sydney every weekend and stayed with her brother and did all housework. Her mother would cook all our meals for the following week, so she would not have to worry about any meals and/or cooking, while she would also clean the house.
Shortly after the accident, Bella travelled to Newcastle when her mother was in hospital. When she arrived, her mother could barely talk, Bella could see her mother was in extreme pain. She had never seen anyone in as much pain as her mother as when she arrived at the hospital. The pain became so bad, she says that her mother was virtually crippled and could not move and/or talk like a normal person. She had not seen her mother ever experience that level of pain, even when she was going through her breast cancer treatment.
She recalls that the plaintiff had surgery performed on her neck, but that did not alleviate her pain and discomfort. She noticed at that time her mother did not have any feeling in her finger and thumb on her left hand. As a result, she had issues with using her left hand, which meant she had difficulty doing the most basic of tasks.
Shortly after the surgery, the plaintiff moved back to Sydney to live with her as the first Covid lockdown had just commenced. Her brother moved up to Newcastle to live with their father.
Once her mother moved back into the family home with her in around March 2020, she says her mother was in no condition to perform her previous housework. As a result, Bella did all the housework and looked after her mother.
Shortly after her mother returned to living in Sydney, her mother and father purchased a house at XX, Bangor NSW. It is the property they currently live in. That is a sixbedroom, three-bathroom, three story house, with a pool and large backyard with grass. There is no carpet throughout the house, as it is made up entirely of floorboards and tiles.
From April-October 2020, it was only Bella and her mother living together in Sydney. Bella was working and studying dance every weekday from 8am-3pm and she would subsequently teach at the dance studio from 4-7pm each night. She cooked cleaned and did laundry prior to leaving for dance each morning. That would take her approximately 60-90 minutes each morning.
Bella also attended to whatever chores were necessary at night upon her return from the dance studio, including mopping the floors and cooking. Although her mother was the only person living in the house at that time, the house became quite dirty during the day, mainly due to the dogs, as they lived in the house, and one of them was still a puppy at that time. She would estimate, she spent 60-90 minutes per night performing the activities for her mother, as stated above.
In October 2020, her brother and father moved back to Sydney because her mother was not getting better. Upon their return, she continued to perform the same tasks she was performing between April-October 2020, however, her brother and father would also provide assistance during the day and in the evenings. Bella is still providing such assistance to her mother up until today.
Bella is devastated that her mother has been left the way she now is, after a simple slip and fall on a driveway, but she cannot do her housework forever. She is likely to move out of the family home in the next few years.
Later this year she will be moving (and probably has moved) overseas to work on a cruise line ship. She was originally meant to have worked on the ship in 2021, but due to the Covid pandemic, that did not occur. She has also recently obtained a scholarship to dance at the Broadway Dance Studio in New York City, which she will likely undertake during 2023.
Bella is currently working 3 separate jobs which are as follows: (a) Dancing at Marque nightclub which is located in the Star Casino. That is every Friday and Saturday night; (b) Shop assistant at Bevilles Jewelry store, which is located in Miranda. On average she will work 5 shifts a week which are either 5 or 9 hour shifts during the day; (c) and casual teaching at Ettingshausen's dance studio which is approximately 1 or 2 shifts per week in the afternoon.
I have already referred to the domestic care Mr Furner has provided after the plaintiff’s accident.

Kyle Furner’s Evidentiary Statement

Kyle Furner is the plaintiff’s son. He was born on 5 December 1997. His evidence is that his mother was involved in an accident on 18 January 2020 ('the accident').
In 2013, he moved to Townsville with his mother and father, as his father had obtained a job in that city. As a result, him and his sister moved with their parents up north and lived in Townsville from 2013 until late 2016. He completed years 11 and 12 of his schooling while he lived in Townsville. Kyle believes that before her accident, his mother was a very social person who enjoyed catching up with friends. She also returned to watching father's football games, which she had stopped doing while we were living in Townsville.
His mother also spent a lot of time with his youngest sister Bella, as they were both heavily involved in dancing. The plaintiff loved dancing, which was one of her true passions in life, as she had been involved in dancing since she was a child. She also enjoyed going to the gym and going for walks prior to the accident.
Before her accident, he did not perform any chores at home, besides occasionally cleaning his room. His mother did everything in the house, as she was obsessed with the cleanliness of the household and was very particular about how the house should be cleaned.
His mother did all the cooking, cleaning, washing clothes, putting clothes on the line, folding clothes, mopping the floors inside the house, wiping benchtops, and mowing the lawns. Their home was always clean. His mother also did all the grocery shopping for the family.
Prior to his mother's accident his father didn't do any housework as his job (being an assistant coach of a professional rugby league team) required him to leave home at 5am each morning and not return until 5-6pm each night.
His mother did all the cooking for the family most nights. The meals his mother cooked were always very healthy, as his mother and father were very health conscious. His mother was also aware he had to be very strict with his diet when he was boxing. She quite often made him a totally different meal to what everyone else was eating.
Bella and Kyle started to attend to chores at home because their mother wasn't around. When Kyle’s father was in Sydney, he also did a lot of housework at the Bangor house.
For several months after his mother had her neck surgery and Kyle was still living in Newcastle, he travelled up and saw her one night a week. He did that to try and give his father a break from performing all the domestic assistance activities for her, while he was also concerned about her general welfare.
In late March 2020, his mother moved back to Sydney to live with Bella, as the first covid lockdown had just commenced. At that time, he moved to Newcastle, so his father was not living on his own. He remained living in Newcastle with his father until October 2020. During this period everyone was doing their best to look after his mother and do housework. His father was doing all of it at Charlestown and Bella and him did a fair portion of it at Bangor.
In October 2020, he and his father moved back to Sydney as his mother was not getting any better. At that time, he observed his mother was always grabbing her neck, holding her left arm in a sling like position, and generally always in pain. As a result, his mother had difficulties in performing the most simple of tasks, such as holding a plate or putting a cup on a bench. Even walking from the couch to the kitchen was an effort for his mother, due to the pain and discomfort she was experiencing, which continues up until today. Since he moved back home in October 2020, his sister still attends to the domestic tasks to assist his mother in the morning.
Due to his work commitments, he left home at 4.30am each morning, as he runs his own boxing gym in Sutherland, which opens at 5am Monday-Friday. However, due to Bella's inability to be home during the day, he would come home between 10-11am each morning to check on his mother and provide her with any assistance she needs.
While he was at home with mother, he would make her a cup of tea and prepare her a meal for lunch. He would also vacuum the floors of the house because their dog, which is a 76kg French Mastiff, sheds hair, which upsets his mother. That would take him approximately 45-60 minutes each day, as his mother could no longer undertake vacuuming.
Since his mother's accident Kyle estimates that he has to perform between 4-6 hours/week of housework and this continues to date. From time to time, he has seen his mother try to vacuum or mop or clean the kitchen, but after a couple of minutes she would stop the task because of the pain and discomfort she was experiencing. Kyle said his mother has done the best she can, despite her significant injuries arising from the subject accident.
He does not know how much longer he will be able to perform the domestic tasks that he has referred to above because his business is picking up and he is finding it more difficult to not be at work during the day.
In early February 2022, his mother had a procedure on her neck. Approximately one to two weeks after that, he came home one day to find his neighbour standing inside their house. He immediately went upstairs and found his mother unresponsive in the bed. The neighbour had already called an ambulance. He observed his mother trying to talk but she wasn't making any sense. She was immediately taken to Sutherland hospital.
Since the accident, his relationship with his mother has become strained and they clash a lot, as she is always very moody and down about her situation. She is no longer the happy mother he once knew, and he feels like sometimes she takes the anger out on him.
He has started to become concerned about his mother's mental welfare, as her injuries and pain from the accident appear to be taking a significant toll on her. He is concerned she will never recover and/or return to the person she was prior to the accident.

Resolution

On December 2020, the plaintiff reported to occupational physician Dr Sean Low that she lived in a six-bedroom, three-story house with a back yard and pool. She stated that prior to the subject injury she was largely responsible for all household chores, some gardening activities and maintenance of the pool.
The plaintiff reported to Ms Glancey, the use of self-imposed limitations in an attempt to manage pain. She avoided heavy lifting due to pain. She avoided heavy domestic duties including vacuuming and cleaning showers. She was unable to drive long distances due to pain. She reported great frustration with physical limitations.
The plaintiff stated that she currently remains independent with personal care, she can self-dress and self-wash. In terms of domestic duties, she stated that she is only able to perform the bare minimum. She gave examples of being able to load the dishwasher. Otherwise, she relies on assistance provided to her by her husband and children. The plaintiff has suffered loss by having a need for the services now provided by her family members.
In early 2020, the plaintiff’s husband would easily spend 2-3 hours a day providing the plaintiff with assistance and doing all the housework at Charlestown, some of the housework when down at Bangor and 1.5hrs/day of housework at the Charlestown house. Since moving back to Sydney, he is easily performing 1-2 hours per day of housework which he did not do before his wife's injury.
In October 2020, Kyle and Mr Furner returned to live in Bangor with the plaintiff and Bella. Since that time, the domestic chores have been distributed among them. The plaintiff’s daughter, Bella, spent 60-90 minutes per night performing the activities for her mother. Kyle would come home between 10-11am each morning to check on his mother and provide her with any assistance she needs. Since his mother's accident Kyle estimates that he has to perform between 4-6 hours/week of housework and this continues to date.
The plaintiff is unable to perform many of the basic tasks that she once did prior to her injury, to look after herself and her family. The combined effort of her immediate family to perform services of a domestic nature for the plaintiff, as set out in the evidence Mr Furner, Bella and Kyle were reasonably needed to support the plaintiff. While I acknowledge that the hours of care may fluctuate or lessen with time, the domestic assistance required to be provided to the plaintiff exceeds the threshold of 6 hours in CLA s 15(3)(a). I find that the criteria in section 15(2) is made out and thus the requirements of section 15(3) are satisfied.
The plaintiff is to be compensated for the past attendant care services provided by her family at 7 hours per week at $34.77 dollars an hour for 131 weeks, this equates to $31,884.

Future attendant care

Dr Low held that should the plaintiff not have access to assistance from her family members, she would require four to six hours of domestic and gardening assistance each week. Secondary to injuries sustained, she is currently confined to performing only minimal light duties such as loading the dishwasher.
The plaintiff’s prognosis is considered poor. She has sustained a significant injury resulting in the need for major surgery. Based on the type of surgery she has undertaken, she is also at risk for further complications such as adjacent segment disease. There is an expectation of ongoing symptoms with future deterioration in the foreseeable future.

The plaintiff’s submissions

When fully appreciating the extent of the plaintiff’s medical condition, the Court would readily appreciate the performance of heavy and repetitive movements such as are required with chores have been well beyond her since the accident. The Court would also be aware that housework involves significantly more than her retained capacity to make toast, eggs, rinse a dish or reheat a meal.

The defendants’ submissions

The defendant submitted that given the uncertainties, if any future commercial care is allowed it should be on the basis of a buffer of $40,000.
The plaintiff submitted that in the alternative to awarding the plaintiff compensation for future gratuitous care, future paid care should be $1,760,000, by calculating 8 hours per week x $50 hours x 875.5.
As to future care it is unreasonable to expect that her ability to complete household domestic tasks will extend to 8 hours of week for the balance of her life in circumstances where symptoms are expected to improved as a consequence of the spinal cord stimulator and in circumstances where her husband will continue to do the heavier tasks as he always did prior to the fall.

Resolution

Following the plaintiff’s injury, members of the plaintiff’s family have assisted the plaintiff with daily tasks. Mr Furner spends approximately 2-3 hours a day providing the plaintiff with assistance and undertakes 1.5 hours of housework a day at the Charlestown house and some of the housework when down at the Bangor house. Since moving back to Sydney, Mr Furner has performed 1-2 hours per day of housework which he did not do before his wife’s injury.
In October 2020, Kyle and Mr Furner returned to live in Bangor with the plaintiff and Bella. Since that time, the domestic chores have been distributed among them. Bella does the morning shift at home with the plaintiff. Kyle checks on the plaintiff during the day for a couple of hours, makes her lunch and tidies up. The cooking at night is shared between Mr Furner, Bella and Kyle. Mr Furner mainly does the grocery shopping, cleaning, washing the dishes, putting the rubbish out and washing the clothes at night. This attendant care provided by the plaintiff’s family members is likely to continue.
As a consequence of the injury and its treatment, the plaintiff will require 7 hours per week domestic care for the future from the time of the surgical operation that was performed in August 2022. While the adult daughter and son have provided care in the past, they will move out of the family home to pursue their careers and relationships, the plaintiff’s husband may not be able to provide care due to the demands of his working career. Hence, I assess future attendant care on a commercial basis. I calculate her future care I accordance with the 2022 rates for the provision of attendant care services to be 7 hours per week of assistance for personal care, as well as cleaning and household tasks at $34.77 per hour. The plaintiff is 53 years old and is expected to live for another 33.8 years. Thus, the plaintiff should be paid $213,112 in future attendant care services.

Costs

Costs are discretionary. Costs usually follow the event. The defendants’ are to pay the plaintiff’s costs.

THE COURT ORDERS THAT:

I propose to enter the first, second and fourth defendants are to pay the plaintiff damages in the sum of $1,509,512, arising from an accident that occurred on 18 January 2020, once the calculations have been checked by the parties.
The defendants are to pay the plaintiff’s costs.

Proposed schedule of damages

Non-economic loss

$317,500

Past out-of-pocket expenses

$228,570

Future-out-of-pocket expenses

$119,130

Past economic loss

$180,000

Past Loss of Superannuation

$19,800

Future Loss of Superannuation

$39,592

Past attendant care

$31,884

Future attendant care

$213,112

Future earning capacity

$359,924

Total

$1,509,512

**********

Amendments

03 August 2023 - Schedule consistent with body.

03 August 2023 - Formatting.

04 August 2023 - Schedule consistency.

07 August 2023 - Annotation removal.

Decision last updated: 07 August 2023

Medium Neutral Citation:	Furner v Jackson [2023] NSWSC 914
Hearing dates:	25, 26, 27 July and 26, 27 September 2022
Date of orders:	3 August 2023
Decision date:	03 August 2023
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	(1) I propose to enter the first, second and fourth defendants are to pay the plaintiff damages in the sum of $1,509,512, arising from an accident that occurred on 18 January 2020, once the calculations have been checked by the parties. (2) The defendants are to pay the plaintiff’s costs.
Catchwords:	NEGLIGENCE – General principles – Duty of care – Foreseeability of risk – Causation – Personal injuries – Slip and fall – Occupier’s liability – Expert medical evidence – Liability established – Damages.
Legislation Cited:	Civil Liability Act 2002 (NSW) 5, 5B, 5C, 5D and 5E Uniform Civil Procedure Rules 2005 (NSW) r 5
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v BouNajem (2009) 239 CLR 420; [2009] HCA 48 Cupac v Cannone [2015] NSWCA 114 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48 Larson v Commissioner of Police [2004] NSWCA 126 Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Manly Municipal Council v Skene [2002] NSWCA 385 Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 Thornton v Sweeney [2011] NSWCA 244 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Krickovic v The Star Pty Ltd [2019] NSWDC 594 Wallace v Kam [2013] HCA 19, 250 CLR 375 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Woolworths Ltd v Strong [2010] NSWCA 282 Mouin Junior Dalati v Shereen Rifat Brown [2020] NSWSC 783 Sangha v Baxter [2009] NSWCA 78 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Texts Cited:	Sir Richard Eggleston QC Evidence, Proof and Probability (Weidenfeld and Nicolson, 1978)
Category:	Principal judgment
Parties:	Kellie Furner (Plaintiff) Alan James John Jackson (First Defendant) Linda Kondouras (Second Defendant) CK1 Realty Pty Ltd (Fourth Defendant)
Representation:	Counsel: P. Khandar SC with E. Anderson (Plaintiff). A. Ahmad and N. Hogan (Defendants). Solicitors: Brydens Lawyers Pty Limited (Plaintiff). Holman Webb Lawyers (Defendants).
File Number(s):	2020/00227032-1

Non-economic loss	$317,500
Past out-of-pocket expenses	$228,570
Future-out-of-pocket expenses	$119,130
Past economic loss	$180,000
Past Loss of Superannuation	$19,800
Future Loss of Superannuation	$39,592
Past attendant care	$31,884
Future attendant care	$213,112
Future earning capacity	$359,924
Total	$1,509,512