Furst v Ross

[2003] NSWSC 420

CITATION:	Furst v Ross [2003] NSWSC 420
HEARING DATE(S):	28/04/03 - 01/05/03
JUDGMENT DATE:	20 May 2003
JUDGMENT OF:	Burchett AJ at 1
DECISION:	Verdict for the Plaintiff in the sum of $30,977 plus costs.
CATCHWORDS:	Negligence - failure to repair leaking roof after severe storm damage - effect of Defendant's reliance on agent to investigate complaints - Plaintiff slipping on wet stairs - question of fact - no contributory negligence
PARTIES :	Nicola Louise Furst Briar Ross
FILE NUMBER(S):	SC 020584/99
COUNSEL:	Pl: B. Hughes Def: R Seton SC
SOLICITORS:	Pl: McLaughlin & Riordan Def: Carroll & O'Dea

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ACTING JUSTICE BURCHETT

Tuesday 20 May 2003

020584 of 1999

NICOLA LOUISE FURST
(Plaintiff)

v

BRIAR ROSS
(Defendant)
JUDGMENT

1 BURCHETT AJ: On the evening of 14 April 1999, parts of the Eastern Suburbs of Sydney were struck by a storm of quite exceptional magnitude. Hailstones were officially recorded as being of a diameter of 6.3 centimetres at Woollahra near Paddington and up to 9 centimetres, falling over a period of a quarter of an hour, at Surry Hills, not far away. Widespread and severe damage was caused to roofs of buildings and to motor cars in the streets. This case is brought as a consequence of a leak that developed in one corrugated iron roof heavily hit by hail. The Plaintiff, a young woman who was a tenant of a semi-detached house at 142 Paddington Street, Paddington, claims damages for negligence against her landlady in respect of injuries suffered some months later when she slipped on water on the stairs. It was the landlady’s failure to have the leaking roof repaired, she says, which led to her fall.

2 The case was fought on the precise circumstances, the Defendant denying much of the Plaintiff’s evidence directed to the question of the Defendant’s awareness of the existence and persistence of the leak, and also asserting contributory negligence on the basis that the Plaintiff was holding a cat in both hands at the time, thus being unable to save herself by gripping a newel post or such handrail as there was; in any event was not steadying herself with either hand; and also, it was suggested, had not turned on a light that might have revealed the presence of the water. No defence was raised of any exculpatory clause in the lease, or pursuant to any aspect of landlord and tenant law that might have been protective of the landlord in such a situation. There was some appeal to a clause under which the tenant could have notified the leak to a particular person, but the Plaintiff’s evidence was that the relevant information was given to the Defendant herself and to a Dr Smidlin, while the Defendant’s own evidence indicated Dr Smidlin was acting on her behalf in respect of the hail damage.

3 The house in question was of the familiar style of terrace houses in Paddington, consisting of three storeys and sharing a roof with the semi-detached house next door, occupied by Dr Smidlin, a medical practitioner who had retired in 1996, and is now aged 71 years. On the top floor, the Plaintiff had two bedrooms; on the intermediate floor (which was at the Paddington street level), a lounge-dining room and kitchen, and at the basement level a third bedroom and a bathroom and laundry. An upper stairway ascended from the ground floor towards the top floor, bifurcating at some point so that one branch of it led to the main bedroom and another to the second bedroom. Directly beneath the upper stairway, steps also led down to the basement floor. It was on the lower stairway that the accident happened, so I shall describe it in a little more detail. Part way down, it turned to the left at a right-angle, the steps tapering towards the inside of the turn in the usual way, where there was a newel post. The stairs were narrow and the steps were worn wood, which had been varnished or coated in some way. There was a light at the turn in the stairs, which, I am satisfied, was not very bright. On the evidence and the probabilities, I find that light was on when the accident occurred, during the evening in winter. Going down, there was a wooden handrail on the left hand side which ended some short distance before the newel post; a further short distance beyond that, the rail was renewed, but at least that lower section of it was flush against the side wall, and thus it would have been impossible to get a hand around it.

4 It is the Plaintiff’s case that on 19 July 1999, over three months after the storm, when she was descending those stairs carrying her cat and wearing ordinary leather shoes, at a point about half-way down and approaching the turn to the left, her foot slipped on water on one of the wooden steps, and she fell heavily. In falling, she struck her left elbow, and then the rest of her body made contact with the stairs. She naturally looked to see what might have caused her to slip, and both saw and felt water on four or five of the steps. The next day, the left arm was swollen and painful; the Plaintiff had soreness in her neck and back; and there were swollen veins on the left side of her neck, which also felt “tight”. However, as will appear when I discuss her pre-accident activities, the Plaintiff must have been a very fit young woman, and she thought she would get over it without requiring medical attention. She went to work as a primary school teacher throughout the rest of the week, the evening of her fall having been on a Monday, enduring the pain from her left arm and neck. On the Sunday of the following week-end, she saw a doctor at Chatswood Medical Centre, who does not appear to have diagnosed anything of significance, although he did note that she was complaining of pain in the left shoulder and had slight swelling of the upper arm. The note refers to the fall down the steps and makes some further illegible comment, but the most important thing about it, in the light of the Plaintiff’s subsequent medical history, is perhaps that swelling of the upper arm was confirmed by a medical practitioner at this early date after the injury was sustained.

5 I do not think the Plaintiff’s lack of concern about any possible injury of severity was other than real, for at no time did she pursue medical treatment with enthusiasm. Her brother was a psychiatric registrar at Nepean Hospital, near the school where she taught. However, it was not for medical treatment, but for a cup of coffee with him, that she went to the hospital at the end of the school day on Friday 20 August 1999, a month after her fall. He insisted on her immediate admission to the hospital, a diagnosis being made of thrombosis in the left subclavian vein. She remained there under care until 28 August 1999, when, apparently characteristically, she discharged herself against medical advice. She did continue on the prescribed medication (Warfarin) for six months, with regular medical reviews.

6 I have explained at some length the Plaintiff’s attitude to her injuries, both at the time of their occurrence and for some time thereafter, because it casts light on the documents which constitute some of the evidence on the issues that must determine liability in this case.

7 In the first place, it should be said that no claim was made against the Defendant, nor was she even notified of the incident when the Plaintiff fell, until after 20 August 1999. While the Plaintiff was in hospital, a letter to the Defendant (who, at all relevant times, lived in Auckland, New Zealand) was typed on her behalf, and was signed by her. The Defendant, however, was on holidays in Australia at the time, so a copy was sent some days later by facsimile, as I infer, by one Adam Davis, with whom the Plaintiff had been living. He had remained on close terms with her, and he visited her in hospital. His name appears, as the sender, on the facsimile. This letter, dated 26 August 1999, omitting formal parts, reads as follows:

“You will recall that following the hailstorm in Sydney in early May of this year, the property sustained damage to the roof causing the roof to leak. I informed you of this leak during a telephone conversation we had in the week following the storm. Since that time the leak has become substantially worse. Despite being informed on two subsequent occasions as to the extent of the damage to the roof, no attempt was made by you to repair the damage and the roof is still leaking every time it rains.
There are at least two leaks in the roof covering the stairwell, causing water to accumulate on the top flight of stairs. From here it runs down the stairs and through to the bottom flight of stairs. This has caused the bedroom on the lower level to remain constantly damp and unusable. The water has continued to cover the stairs despite my efforts to continually soak it up with towels.
There are further leaks in the small upstairs bedroom and the water from these leaks through the floorboards and into the kitchen, which is directly below. There is also a leak in the master bedroom upstairs.
As a result of the damage to the property and the resulting leaks large parts of the property are unusable and extremely dangerous. I request that you attend to these leaks immediately. Until such time as the property has been rendered livable and safe I intend to pay rent in the sum of $200 per week.
On the 19th of July, 1999 I slipped on the water at the top of the stairs and fell down the stairs injuring my shoulder and my neck. I am currently in a serious condition in Nepean Hospital, Penrith, NSW where I am being treated for a blood clot in my neck, which developed as a direct result of the injuries sustained by the fall.
As soon as I am able I shall be seeking legal advice in regard to an action for damages against you for the injuries I have sustained.”

What I find most significant about this letter is that the Defendant does not suggest she ever indignantly repudiated its assertion that, three times, she had been told of the leaking roof, but had done nothing, an assertion she now says was false. I do not consider inconsistencies of detail (the number of complaints made; the precise nature of the irrelevant problem in the basement bedroom; and the precise spot on the stairs where the Plaintiff fell, if, indeed, “the top of the stairs” is meant to locate the fall rather than the ingress of water) are nearly so significant, especially as the Plaintiff did not actually prepare the letter, and the part played in its preparation by Adam Davis was never fully explored in evidence.

8 Similarly, the documents include a note dated 14 July 1999, a day that came at the end of three days of very heavy rain, in the Plaintiff’s handwriting, which was left under the door of the neighbour, Dr Smidlin:

“Hi, its [sic] Nicky from next door. Our ceiling is dripping lots of water & last time with the heavy rain Briar [the Defendant] asked me to get in touch with you but I think you were away.
If our roof is covered by insurance too – could you let me know what will happen [?]
I’ll be home at various times over the weekend [.J]ust call if you’d like to have a look, so you can see what needs to be done.”

Again, the thing which seems to me to be significant is that this letter, which admittedly came into Dr Smidlin’s hands, was not even communicated to the Defendant, according to her own evidence. Her reliance was on Dr Smidlin, who had told her, she says, that there were no leaks. Yet a letter confounding his firm understanding of the position, and suggesting that in previous heavy rain there had been a problem he had not even heard of, was simply filed away and forgotten until documents were unearthed for the case. Dr Smidlin “never ever told” the Defendant about it. According to the Defendant, apart from asserting, on 3 May 1999, “there might (emphasis added) have been a small leak in the upstairs bedroom,” which Dr Smidlin almost at once reported to be incorrect, the Plaintiff never told her, and she never learned of the leak in question until she received from Dr Smidlin a facsimile letter of 27 July 1999:

“Herewith letter from Nicola [this was not the note of 14 July 1999 but a declaration to show no insurance renewal forms had been received]. The leak is in the stairwell. My roof will hopefully be repaired next week. As discussed, I shall ask them to patch yours.”

On the Defendant’s case, a reference to the leak should have been a bolt from the blue, but it led to no immediate discovery by her of the existence of the Plaintiff’s earlier note of 14 July 1999, or of the long prevalence of leaking, or of the Plaintiff’s accident, which by then had occurred just a week ago. It did not even provoke startled expostulation. What all this means is that the Plaintiff’s note to Dr Smidlin and Dr Smidlin’s letter to the Defendant were both treated in a way inconsistent with the other evidence of Dr Smidlin and the Defendant – perhaps not absolutely, but certainly to a noticeable extent.

9 It is against the background of these documents and events that I now turn to consider the oral evidence. The Plaintiff, supported to some degree by Mr Davis, says that, from the time of the storm of 14 April, there were several leaks in the roof, which were sufficient to require her to make use of containers and towels to intercept or soak up the water. The upper bedrooms and the stairs, in particular, were affected. She claims that the water which leaked onto the upper flight of stairs also penetrated to the lower flight, although she says she did not realize that until after her fall. She is corroborated, as to the leaking and the penetration of water to the stairs in the basement, by Mr Davis, but his evidence includes some answers in cross-examination to the effect that he saw the Plaintiff at some stage mop up water from the very area where she later fell. The inconsistency, of course, bears on the issue of credit and on the question whether contributory negligence has been shown. Shortly after the storm, according to the Plaintiff, she received a telephone call from the Defendant, speaking from New Zealand, who said she had seen a news report about the hail and asked whether there was damage to the house. The Plaintiff claimed to have “said there was a leak in the master bedroom… a leak in the small upper bedroom opposite and there was another leak directly over the stairwell”, to which the Defendant replied “she would check with the neighbour if he suffered damage to his roof because they shared a roof”. Subsequently, the Defendant intimated she wanted the neighbour, Dr Smidlin, “to come through and have a look”, and “then a week or two later he came through and inspected the damage”. The Plaintiff said she “showed him where the leaks were”.

10 According to the Plaintiff, there were several further telephone conversations over the ensuing weeks prior to the accident on 19 July, more than three months after the storm, in which she referred to the problem of the leaks. There was much dispute at the hearing about the number of communications involved, and the Defendant produced telephone accounts to show that she herself could not have made all the calls alleged by the Plaintiff. But the parties are agreed that there were communications between them, involving at least a question whether renewal notices had been received in respect of the Defendant’s insurance against storm damage, and the matter of a rental cheque tendered by the Plaintiff which had not been met. According to the Defendant, she did indeed learn of the hailstorm through television news in New Zealand, and decided within a few days “to take steps to see if [her] roof had been damaged in the storm”, but it was Dr Smidlin that she then contacted, not the Plaintiff. She asked him by telephone “would he find out if there was any damage to [her] property” and he “said he would”. By 2 May, a firm of building contractors specialising in insurance reinstatement had given a quotation of $5,600 at the request of Dr Smidlin’s loss assessors for the replacement of her roof in addition to his. That must have indicated to the Defendant when she received it, some eleven days later, that both a loss assessor and a builder considered her roof had suffered significant damage, although not necessarily so as to cause immediate leaking. (I should add that it turned out the Defendant’s insurer declined liability on the ground the insurance had lapsed, and the quotation was never accepted. Nevertheless, the Defendant’s roof was repaired eventually, though after the Plaintiff’s fall, by the placing of the corrugated iron sheets removed from Dr Smidlin’s roof over the top of hers.) Also, the Defendant acknowledges (as noted in her counsel’s written submissions) that there were communications by telephone between her and the Plaintiff on 14 May 1999 and shortly before 27 July 1999, although she asserts nothing at all was said on either of these occasions about leaks or about the condition of the premises. But 14 May was only three days after 11 May, when weather records suggest heavy rain (30mm or more in one day) is likely to have fallen in Paddington, and shortly before 27 July corresponds with the time when the Plaintiff had been sufficiently concerned about the leaks to put her complaint in writing to Dr Smidlin; it is unlikely that she said nothing about them when she spoke to the Defendant on these occasions.

11 On the Defendant’s version of events, the first telephone conversation between her and the Plaintiff, following the storm, came when she called the Plaintiff on 3 May 1999 to notify her about the rental cheque which had been returned by the bank unpaid. She denied that anything was said in this conversation about water getting onto the stairwell. However, in cross-examination, she gave the following evidence:

Q. Firstly, I put it to you that within a week of the storm you spoke to Miss Furst and she told you that it [the roof] was leaking. That’s true, isn’t it?
A. She said there might have been a small leak in the upstairs bedroom and that subsequently proved to be incorrect as inspected by my neighbour Dr Smidlin.

12 Weather records obtained from the Bureau of Meteorology show that the hailstorm of 14 April 1999 was probably accompanied by heavy rain that night in Paddington. The records did not focus on Paddington itself, but for Centennial Park 29.4 mm of rain were recorded over the 24 hours to 9am on 15 April, for Randwick Racecourse the figure is 33 mm, and for Randwick Bowling Club nearly 50 mm are indicated. These are nearby locations. Then, for the 24 hours to 9am on 23 April the corresponding figures are 31.2, 23 and 24.2 mm, with significant rain over the next week, becoming virtually continuous between 29 April and 2 May 1999. Seen against this weather picture, the Defendant’s insistence that on 3 May the Plaintiff said only “there might have been a small leak in the upstairs bedroom” seems quite improbable. The evidence shows, and it is admitted, there was significant leaking by July. The only cause for that suggested by the evidence was the ferocious hailstorm, which dented even comparatively new corrugated iron next door, so as to require the neighbour’s insurance company entirely to replace his roof. The probabilities of the situation support the Plaintiff’s evidence that, after all that rain, the roof was certainly leaking by 3 May 1999, and she said so. At any rate, enough water had fallen on the roof to make it very unlikely she was doubtful whether or not there was any leak, as the Defendant claims. Despite some inconsistencies in the evidence, and between details of her account and some other evidence, I have concluded that, on the issue of liability, her account should in substance be accepted.

13 But the weather records show only one more day in May 1999 when much rain probably fell, the 24 hours to 9am on 11 May. Therefore, when Dr Smidlin came in to inspect the premises, there could indeed, quite possibly, have been no water visible. He may not have been in Paddington during the 24 hours to 9am on 11 May, for his facsimile to the Defendant of 13 May excuses his delay in sending her a copy of the quotation for the replacement of the roof by saying “I have been away & I lost your quote!” He left again on 14 May for overseas until 26 June. So the inspection he was requested to make, which was probably made promptly after he was asked since he certainly acted promptly to the extent of obtaining a quotation by 2 May (at one point in his evidence, he said that “one week after the storm [he] had a look inside and saw no leaks and…a month after the event [he] had another look”), if not made at once, may well have been during the fine weather which lasted for over a week following 2 May 1999. If it was indeed prompt, his inspection could have taken place on a rainless day after the storm of 14 April and before 23 April 1999. The significance of this analysis is that the Defendant made it clear she relied, to refute the Plaintiff’s complaint of 3 May, whether that complaint was in the strong terms the Plaintiff alleged, or accorded with the muted version asserted by the Defendant, on advice she received from Dr Smidlin in his facsimile to her of 13 May 1999. In that, he informed her: “The roofs are not leaking”, referring together to his own roof and hers.

14 Ultimately, it seems to me the case must turn on whether Dr Smidlin’s advice to the Defendant was correct. For she chose to ask him to inspect the house for storm damage on her behalf, making him her agent (though unpaid), and she chose to act (or, rather, to fail to act) on his advice accepted by her against the complaint of a leaking roof which, on the probabilities, I am satisfied her tenant did make, and did repeat both to him and to her on at least some occasions. I had the opportunity to hear the oral evidence of Dr Smidlin, and to observe him under cross-examination. The reliability of a witness does not depend only upon one factor, such as honesty of intent. It is affected by questions of attitude, powers of observation, attention to detail, concentration on the real issues, memory, and other matters. I did not find Dr Smidlin’s evidence convincing. I am satisfied the Plaintiff did tell him, shortly after the hailstorm, that the roof leaked to a significant degree, and also that he was informed of this again subsequently. It may be he did not take this young woman’s complaints very seriously when he went through the house, perhaps on a fine day. That would be consistent with his neglect even to inform the Defendant of the Plaintiff’s note of 14 July. He was prepared to volunteer his personal view that the damage, which experts assessed to require his own roof to be entirely replaced, was no more than “minimal”, and was ready to assert this despite acknowledging that he did not have “any building experience”. At one point in his evidence, Dr Smidlin said the Plaintiff was there on “every occasion” he inspected. The next question was: “Did she ever show you anywhere where she asserted there was a leak?” to which he replied: “Not that I can recollect”. Yet, later in his evidence, he referred to an occasion when he went in and “did see it was leaking.” On all the evidence, it is plain he went in, on that occasion, to see a leak of which the Plaintiff complained.

15 It is unnecessary to recount in detail the conflicting evidence concerning other communications or alleged communications between the Plaintiff and the Defendant. I find the Plaintiff has established that the Defendant failed to take reasonable care in relation to a leaking roof of which she was aware, personally and through her agent. So far as the agency is concerned, having been informed (as she was) by the Plaintiff, she was not exculpated by an incorrect statement made to her by Dr Smidlin, who had also been informed of the fact that the roof leaked. The failure of the Defendant to take reasonable steps to evaluate and remedy the situation of which the Plaintiff complained was the cause of the Plaintiff’s injury when she slipped on water on the stairs. The Plaintiff’s evidence, supported by Mr Davis, of a continuity of leaking from the roof is not answered by any evidence of another source of that water. To the extent that the Plaintiff has not explained the absence of her two sub-tenants from the witness box, I am nevertheless convinced by the evidence that was called. Neither of those persons is alleged to have witnessed the fall on the stairs, and I accept that the Plaintiff has lost touch with one of them who returned after the incident to live for some time in Scotland.

16 A defence was alleged of contributory negligence. On this issue, of course, the onus lay on the Defendant. I am not satisfied that, in the circumstances of this case, it was contributory negligence to walk down a domestic staircase, while carrying a cat, without attempting to hold the discontinuous and rather awkward handrail depicted in the photographs that are in evidence. Nor am I prepared to find or infer carelessness from a failure to see water on the steps, viewed at an angle from above while the Plaintiff was descending, whether or not the Plaintiff had ever observed water there before. There was little to show the state of illumination of those steps at the time. But, as I have already made clear, I am certainly not satisfied the stairs were unlit. I reject the defence of contributory negligence.

17 The assessment of damages in this case presents some difficulties. The Plaintiff claims for a number of disabilities upon the basis of quite meagre evidence, although, in one respect, I find significant injury is firmly established – the thrombosis of the subclavian vein. Born 10 August 1970, the Plaintiff was a primary school teacher aged almost 29 at the time of her fall. She had also pursued, since her high school days, an ambition to perform as a dancer, singer, model and actress. But although she had obtained casual work in each of these areas from time to time, her full-time occupation was as a teacher, in which she had qualified after leaving school with the degree of Bachelor of Education (University of Western Sydney), followed (in 1998) by a Master’s degree in Media Education (University of New South Wales). She had, until early in 1999, taken leave without pay from her teaching job for over a year, during which she studied for the Master’s degree part-time and also pursued her ambitions as a performer. When she then returned to full-time teaching, before the accident, it seems to me she was acknowledging that performance would never be more than an occasional and part-time activity. However, I accept she gained considerable pleasure, and some financial reward, from participation in fashion shows, television advertisements, a film and a couple of musical productions between 1995 and 1998, and in March 1999 she did some acting for the Australian Ballet. She had sung in the chorus of a Gilbert and Sullivan opera and had had an acting part in a performance of Rossini’s “The Italian Girl in Algiers” at the Sydney Opera House. There were some other engagements, and no doubt the Plaintiff, who is five feet seven inches in height and of willowy build, would have been able to obtain, from time to time as her full-time teaching permitted, various small parts and work such as modelling.

18 The Plaintiff was also able to earn extra money as a swimming instructor during the summer school holidays, but she had not done so during the year prior to her accident.

19 I accept that, as a result of her fall, the Plaintiff suffered pain and disability from the development of the thrombosis, which necessitated just over a week in hospital in August, a further day in hospital in September, and regularly monitored treatment with Warfarin for a number of months. The only time lost from her teaching employment was two weeks following her admission to hospital, when she received sick pay of which a refund does not seem to have been claimed by the Education Department.

20 Apart from the thrombosis, the Plaintiff makes a number of other complaints, including back and neck ache for which she attended a chiropractor three times a week for some time, then twice a week, then once a week until somewhat more than a year ago. She claims to be left even now with “discomfort and stiffness” in her left shoulder and stiffness in the left side of her neck. She has done no acting in the last couple of years. As it is plain she has not for some time had any disability sufficient to prevent her acting, this casts doubt on any suggestion her failure over the same period to get work as a dancer or singer is related to her injuries. I accept the view of Dr B. J. Ireland, a consultant orthopaedic surgeon who saw her for the Defendant on 8 July 2002, that she “may have had a strain to her neck in the fall”, and had “some minor symptoms” still, but I also accept his further conclusion: “Whilst she has a symptom state, I cannot find evidence of impairment of function of her neck or left arm. She does not require treatment. She is quite fit for her ordinary work and no late problems are expected”. At the time the specialist made these comments, the Plaintiff was still attending the chiropractor “every few weeks”, and “doing some yoga” and massage.

21 The Plaintiff’s solicitors arranged for her to be seen by another orthopaedic surgeon, Dr Mario Benanzio, on 6 February 2002. He expressed the opinion that “the patient sustained multiple strains” in her fall, resulting in “residual cervical spine discomfort [that] appears to be related to a musculo-ligamentous injury without bony lesion”, and in a “low back strain” acting on a pre-existent asymptomatic condition in the lumbo-sacral region. He suggested several investigations which appear not to have been followed up.

22 There was also tendered in evidence a report from the chiropractor, Mr A.D. Nicholson, who saw the Plaintiff over a period of ten months from 5 April 2000, and gave her spinal manipulation and “a tailored exercise program” for pain and stiffness of the neck and pain in the left arm. Prior to attending Mr Nicholson, between 30 August 1999 and 7 January 2000, the Plaintiff saw Dr Susan Pugh, a Paddington general practitioner who monitored the medication required as a result of the thrombosis. During that time, the doctor reported, “she did experience discomfort in her left arm and some increase in swelling of the arm if she had to drive a car for extended periods of time”. Packing and moving boxes had a similar effect.

23 It seems clear that the most significant injurious consequence of the fall was the left subclavian vein thrombosis diagnosed at Nepean Hospital. The staff specialist physician there, Dr D. Mackender, described this as “confirmed”, and expressed the opinion that the Plaintiff’s fall “was the probable precipitant cause”. His report makes it clear such a thrombosis could produce persistent swelling in the left arm, and I do not accept that the “slight swelling of the upper arm” noted at the Chatswood Medical Centre six days after the Plaintiff’s fall was coincidental. However, Dr Mackender referred the Plaintiff on 22 November 1999 for what was described as a “Venous Doppler Ultrasound of Left Upper Limb”, which showed “no evidence of a persistent thrombosis within the left subclavian vein or elsewhere within the veins of the left upper limb”. In other words, treatment had evidently been efficacious.

24 In my opinion, although the venous thrombosis might have had very serious consequences, and must have caused pain, disability and considerable anxiety for a period, the other consequences of the Plaintiff’s fall cannot be described as very serious. She lost minimal time from her employment as a teacher, and she probably lost some, but not much, remunerative and enjoyable performing work. She had not been doing much of that since resuming full-time teaching. All in all, I have concluded that a fair and reasonable sum of general damages for the Plaintiff’s pain and suffering and loss of the amenities of life would be $25,000. In addition to that, I award $1500 for the purely economic consequences of her injuries and $4477 out-of-pocket expenses. There will be a verdict for the Plaintiff for the total of these sums, that is, $30,977 plus costs.

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Last Modified: 05/26/2003