Gartmann v Dominion Hotel Group Pty Ltd (ACN 135 105 887)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-02167

LUZINDA ELIZABETH GARTMANN	Plaintiff
v
DOMINION HOTEL GROUP PTY LTD (ACN 135 105 887)	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne (via Zoom)
DATE OF HEARING:	26 to 30 October 2020; 4 November 2020; 5 November 2020 (when mediation undertaken); 6 November 2020; 11 to 13 November 2020; 16 to 20 November 2020; 24 to 26 November 2020 and 7 December 2020
DATE OF JUDGMENT:	14 July 2022
CASE MAY BE CITED AS:	Gartmann v Dominion Hotel Group Pty Ltd (ACN 135 105 887)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1035

REASONS FOR JUDGMENT
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Subject:NEGLIGENCE AND/OR BREACH BY DEFENDANT OF ITS DUTY PURSUANT TO SECTION 14B(3) OF THE WRONGS ACT 1958
Catchwords: Plaintiff slipped and fell during the course of her employment with the defendant – alleging injuries to her neck, left shoulder, left arm, together with Chronic Regional Pain Syndrome Type 1, headaches, Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, Somatic Symptom Disorder and Gastritis – proceedings for “pain and suffering” and “pecuniary loss” damages pursuant to the provisions of the Accident Compensation Act 1985 (as amended)

Defendant sued in both negligence and breach of an occupier’s duty – defendant denies liability – allegations of contributory negligence – issues of credit and the extent of any injuries

Legislation Cited: Accident Compensation Act 1985 (as amended); Wrongs Act 1958
Cases Cited:Gartmann v Dominion Hotel Group Pty Ltd (ACN 135 105 887) (Ruling No 1) [2020] VCC 1753; Fox v Wood (1981) 148 CLR 438; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594

Judgment: Judgment for the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Mr G K Coldwell	Alessi Legal
For the Defendant	Mr R H Stanley with Mr M Clarke	Russell Kennedy

Table of Contents

Introduction

The evidence

Liability

(a) The evidence-in-chief of the Plaintiff

(b) The cross-examination of the Plaintiff

(d) The cross-examination of Ms LaRocca

Determination of the issue of liability

Quantum

(a) The evidence-in-chief of the Plaintiff

(b) Further evidence-in-chief from the Plaintiff

(d) The medical and like treatment of the Plaintiff

(e) The medico-legal reports relied on by the Plaintiff

(f) The medico-legal evidence relied on by the Defendant

The evidence of Dr Barton

The cross-examination of the Plaintiff

(a) Prior medical history

(b) Histories to doctors

(d) Editing the Facebook entry

(e) The initial insistence by the Plaintiff that she had deleted her Facebook entries

(f) The social life of the Plaintiff

Other lay witnesses called by the Plaintiff

(a) The evidence of Mrs Mary Elizabeth Gartmann

(b) The evidence of Mr Andrea Gartmann

(d) The evidence of Mrs Heidi Maria Collins

(e) Other lay witnesses relied on by the Plaintiff

Findings in relation to issues of quantum

Findings

Damages

Assessment of pecuniary loss damages
Loss of earning capacity
Pain and suffering damages

HIS HONOUR:

Introduction
1In this proceeding, there is no issue that, on 13 July 2012, Ms Luzinda Gartmann, who I shall refer to as “the plaintiff”, was working as a waitress/bar attendant at the Kealba Hotel at the corner of Sunshine Avenue and Main Road East, Kealba (“the premises”)[1] when she slipped and fell (“the incident”). There is also no issue that the premises were owned and controlled by the defendant.
[1]There was no issue that the Kealba Hotel was owned and occupied by the defendant, Dominion Hotel Group Pty Ltd
2By way of her Statement of Claim, the plaintiff alleges that she slipped on a “wet tiled floor” and fell, causing various physical and psychological injuries. The plaintiff alleges that the incident was caused by the negligence of the defendant, its servants or its agents[2] and/or, in the alternative, by a breach of the defendant of its duty as an occupier pursuant to s14B(3) of the Wrongs Act 1958.
[2]See paragraph 5 of the Statement of Claim
3The plaintiff alleges the following Particulars of Negligence:
(a)   failing to provide a safe system of work;
(b)   failing to provide a safe place of work;
(c)   failing to take reasonable care for the safety of the plaintiff;
(d)   providing a floor that had a slippery surface;
(e)   providing a floor that had black slippery tiles in a potential wet area;
(f)    allowing a slipping hazard to be present at the premises;
(g)   failing to warn the plaintiff that the floor was slippery;
(h)   failing to respond to complaints that the floor was slippery;
(i)    failing to apply a non-slip surface to the floor;
(j)    failing to place non-slip rubber mats on the floor surface;
(k)   allowing water and/or drinks to be spilt or otherwise fall from the bar to the floor surface;
(l)    failing to inspect the floor adequately or at all;
(m)     allowing the plaintiff to work at the premises when it knew, or ought to have known, that a slipping hazard was present;
(n)   failing to check the floor was clean and safe;
(o)   failing to remove liquid from the floor;
(p)   failing to have any adequate system to inspect and clean the floors at the premises; and
(q)   failing to have in place a cleaning system whereby slipping hazards were removed from the floor in a timely manner.
4The plaintiff alleges that the negligence and/or breach of statutory duty on the part of the defendant caused the plaintiff to suffer injury, loss and damage. The plaintiff relies on the following Particulars of Injury:
(a)   a neck injury;
(b)   subluxation of C3 cervical disc causing discogenic pain;
(c)   left shoulder injury;
(d)   dislocation of AC joint;
(e)   left arm injury;
(f)    Chronic Regional Pain Syndrome Type 1;
(g)   headaches;
(h)   Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood; and
(i)    Somatic Symptom Disorder.
5During the course of the trial, an issue arose as to whether the plaintiff could rely on “lymphocytic gastritis, secondary to the use of non-steroidal anti-inflammatory medication” as an injury suffered by her. In particular, on 27 October 2020, Senior Counsel for the plaintiff informed the Court that a letter had been sent by the solicitors for the plaintiff on 22 October 2020 – not long before the trial commenced – advising those acting for the defendant that it was sought to amend the Particulars of Injury to include such condition and, furthermore, by way of oversight, such application had not been made at the beginning of the trial. Those acting for the defendant opposed such application, given that it was made a number of days into the trial, and this was the first notice of any reliance on such an injury.
6I was further informed that, at the serious injury stage of the proceeding, the plaintiff had relied on such condition and, indeed, there had been an exchange of reports from a Dr Connelly, a gastroenterologist, who had treated the plaintiff for such condition.
7In such circumstances, those acting for the plaintiff submitted that the defendant was on notice that such injury was to be part of the claim and could not be said to have been taken by surprise. Discussion of this issue ensued between the parties[3] and ultimately I made an initial decision to reserve my decision as to whether the plaintiff could amend her Statement of Claim to include such injury. The reason for reservation at that time was to allow the defendant to have time to arrange, if it saw fit, for a gastroenterologist to give an opinion on the condition and its causation.
[3]See Transcript (“T”) 145-155
8Both parties accepted this as a reasonable compromise to allow time for the defendant to meet the matter if it saw fit and, if it could not, the Court would revisit the situation.
9Ultimately, the defendant did not oppose the addition of such injury to the “Particulars of Injury”, and I made an Order on 17 November 2020 permitting those acting for the plaintiff to amend the Statement of Claim to include such injury.
10The plaintiff claims “general damages” and “pecuniary loss” as governed by the Act.
11By way of its Defence, delivered on 20 February 2019, the defendant:
(a)   admits incorporation;
(b)   admits that it employed the plaintiff as a waitress and that it owed a duty to take reasonable care for her safety;
(c)   does not admit the incident;[4]
[4]As I have already noted, there was no issue as to the occurrence of the incident
(d)   denies both negligence of breach of any statutory duty as an occupier;
(e)   does not admit the alleged injuries suffered by the plaintiff and generally denies the relief sought; and
(f)    in the alternative, if the defendant is found guilty of negligence, the defendant also alleges contributory negligence, the Particulars of which are:
(i)failure to keep any proper lookout for any spilled beverages;
(ii)failing to exercise reasonable care for her own safety in the circumstances;
(iii)failing to watch where she was placing her heel;
(iv)failing to wear appropriate footwear in accordance with the defendant’s policy;
(v)failing to notice the floor was slippery and/or wet;
(vi)failing to report the fact of any liquid on the floor to the defendant;
(vii)if assistance or further assistance was required (which is not admitted), then failing to seek or utilise such assistance; and
(viii)failing to make any complaints to the defendant of any difficulty with which she may have been suffering while carrying out her duties.

The evidence
12The plaintiff prepared a folder of documents entitled “Plaintiff’s Tender Book” and which I shall refer to as PTB. The PTB lists all the documents relied on and tendered by the plaintiff. In particular, exhibit 6 contained the plaintiff’s witnesses, photographs and other material. Most of the documents contained in paragraph 6 are the medical reports relied on by the plaintiff. When reference is made to any particular medical report, I shall refer to the plaintiff’s Amended Court Book (“PACB”), which contains the various reports and other documents, each separately numbered. I should add that the PTB does contain all the medical reports.
13The defendant prepared a folder entitled “Defendant’s Exhibit Folder”, which sets out a list of all the documents relied upon and tendered by the defendant. I shall refer to that book as the “DEF”. The DEF identifies each document in the folder by way of alphabetical numbering. Accordingly, when the Court makes a reference to a particular document which has been tendered by the defendant, reference will be made to the DEF, using the alphabetical numbering.
14It is convenient to split up the general issues of liability and quantum. The Court intends to initially set out the evidence pertaining to the alleged liability of the defendant and to determine whether the plaintiff has discharged her onus to establish that liability. In the event that she establishes such liability, I will set out the evidence pertaining to quantum and determine issues in relation to any damages to be awarded.

Liability
(a) The evidence-in-chief of the Plaintiff
15The plaintiff gave evidence that she is a single woman who was born in March 1993, and that at all material times she has continued to live with her parents and one sibling, an older brother. She was nineteen years old at the time of the incident.
16Her father was employed as an electrical engineer but had been unemployed for about two years due to ill health. Her mother works at DHL Global Forwarding in administration and reception, and her brother, although a qualified plumber, was not currently employed at that time.
17The plaintiff was presently employed by The Les Twentyman Foundation as a digital content officer, which involves updating social media platforms. She commenced such work in approximately July 2019, and works approximately 15 hours per work, and during COVID that work has been done remotely from her place of employment.
18The plaintiff attended local schooling until about Year 8, when she went to the Ave Maria College, where she completed her studies in 2010 when she completed Year 12.
19When she was studying, she obtained work experience with the Channel 7 network – initially at the end of Year 11, and then again in Year 12. The plaintiff obtained references which consisted of a written reference from a Mr Christopher Jones dated 31 August 2010 and a video reference from Mr Tom Rehn dated 12 September 2010.[5] The plaintiff gave evidence that she wanted to be a journalist, and the reason for obtaining such references was to assist her in pursuing her studies, as she wished to pursue television and journalism courses.
[5]See exhibit 3
20The plaintiff successfully completed her VCE at the end of 2010 and gained entry to the RMIT television and screen media course which commenced at the beginning of 2011. She commenced that course, but after a few weeks, she contracted glandular fever and she had to defer the course because of that.
21The plaintiff gave evidence that prior to the onset of glandular fever she had experienced “good” health, and commented that she was awarded the 2008 Herald Sun Volleyball Player of the Year. She noted that she also enjoyed tennis.
22In particular, the plaintiff gave evidence she had no physical restrictions or psychological problems during her secondary schooling. After contracting glandular fever in 2011 and deferring her course, her major symptoms during 2011 were that she felt tired and experienced headaches, but noted they “weren’t like the ones that I experience now”.[6]
[6]T46, Line/s (“L”) 17
23The plaintiff gave evidence that as a result of her discontinuing her studies she was “out of action” for some period of time, but in the second half of 2011, she returned to work experience at Channel 7. In particular, whereas in 2010 she had gone out with Tom Rehn and followed him around the road, in 2011, she went out under Leith Mulligan, who was a sports journalist with Seven News, and did stories on her own. By that, she described how she was independent of Leith Mulligan, and although she could not remember clearly what stories she was involved in, she did recall one story involving the jockey, Damien Oliver, together with attending the Melbourne Victory training and also attending the Presidents Cup (a golf event) and tennis.
24The plaintiff gave evidence that on the advice from Leith Mulligan, she changed her course from the deferred course in 2011 to a different course in 2012 – that is, a Bachelor of Communications majoring in Media Studies which was to be undertaken at the Swinburne University by way of remote learning. The plaintiff commenced that course at the beginning of 2012.
25The plaintiff also gave evidence that in or about March 2012, she completed a course involving the Responsible Service of Alcohol which was completed before commencing employment with the defendant on or about 10 April 2012. She was employed by the defendant as a waitress/bar attendant at the Kealba Hotel, and it was her intention to work three or four shifts a week, accompanied by doing four units of study per teaching period. The shifts that she worked consisted generally of afternoon or morning shifts.
26After commencing work, she usually worked behind the bar and also waitressed, but was predominantly behind the bar serving drinks. Over the period from her commencement in April 2012 until the incident on 13 July 2012, she worked on a regular basis, and enjoyed such work. A friend, Ms Tiffany LaRocca, also obtained employment at the Kealba Hotel.
27The plaintiff describes how her work was never questioned, and she never got into trouble, and considered herself to be “reliable”, and she was there “to do my job”.[7]
[7]T50, L22
28She described the hotel as a large one, incorporating three separate areas: that is to say, a bistro dining area where she was working, a TAB area and a sports bar, and also a third section which involved “the pokies”.
29In the bistro dining area where she was working, there were tables for the service of food, and she estimated that that area could hold 200 to 300 people. Table service was provided to the patrons who were sitting at the tables, and she estimates that leading up to the incident, she did waitressing duties “possibly three or four” times,[8] at other times providing bar duties.
[8]T51, L6-8
30On the night of 13 July 2012, she was directed by the manager on duty, who she recalled to be a female called “Terri”, that she was to perform waitressing duties during that shift. She commenced at approximately 5 or 6 o’clock at night, and by 7.30pm she described the hotel to be “busy”. In answer to a query from the Court, there was no particular time that she would finish, and her finishing time depended on how busy the hotel was, but roughly around 9.30pm.
31The plaintiff did note that on the night of her fall, she initially performed some bar work, but her friend, Ms Tiffany LaRocca, commenced employment a short time earlier, and she had to learn bar work, so when she arrived on the night, the plaintiff was placed on the floor and her friend performed bar work.
32The plaintiff was shown a photograph,[9] and the plaintiff identified the photograph as depicting the right side of the bar in the bistro, after which the following evidence was given:
[9]The photograph shown to the plaintiff was on page 328 PACB. Later, those acting for the plaintiff tendered the photographs from pages 328-338 PACB, forming part of exhibit 6.
Q:“And what is that of?---
A:That is the right side of the bar.
Q:Right. When you say the right side of the bar, is that an island bar?---
A:Yes, it is but we would serve drinks from this side.

Q:Right?---
A:And if it was extremely busy – I think on probably two occasions we opened – we served off both sides but it was majority off this side.
Q:And when you say you would serve, is the area in which you were doing the servicing – doing the serving shown on that bar? Shown on that photograph? The area from where you served is that - - -?---
A:Yes, yes, yes.
Q:Right. Can you – in that photograph there appears to be a floor tiling around the bar, can you described (sic) what [the] floor tiling was made of?---
A:I don’t know exactly what it is but it’s shiny black – well, it doesn’t appear black here, but it’s very dark at the night time.
Q:And you say it’s shiny?---
A:Yeah.
Q:And just so we can get some idea of the size of those tiles can you make an approximation of their width?---
A:Maybe about 50 or - 50, 60 centimetres.
Q:And when you were delivering food - or sorry, when the bar was set up on that night are you able to say in respect of the carpet area to the right of the tiles, where tables and chairs were in respect of that meeting point between the carpet and the tiles; how close the tables and chairs were to that point?---
A:Yeah, they were quite close. I - I don’t recall on the night exactly how it was set up, it depends - the patrons who come in, like the table arrangements change because if there was a table of four, and there was a table of six set up, we would move a table and set it up for a table of two, and a table of four.

Q:When you were going from the serving area to deliver meals to the other end of the bar did you walk along the tiled area or did you walk on the carpet area?---
A:No, I walked on the tiled area.
Q:Why would you be walking on the tiled area rather than the carpet area?---
A:Because there were tables there.
Q:Now, just in relation to that bar area whilst you were working before the accident was there any part around that bar where there were carpets or towels or anything like that on the floor, on a regular basis?---
A:Yes.
Q:Whereabouts, and for what - - - ?---
A:So, you can’t see on this photo but it’s pretty much the same, but on the end of the bar we had a big water tank and we would continuously fill that up with ice. However, it did leak often and it would cause spillages on the floor, so we put towels under it.
Q:Right.”
HIS HONOUR:
Q:“When you say a water tank, was this available to patrons who wanted iced water; they’d just go and help themselves, is that the case?---
A:Yes, Your Honour.
Q:Yes, thank you.”
MR TOBIN:
Q:“And in relation to the people who were able to go and get that iced water, was it limited to adults, or was that something the children could access as well?---
A:Yeah, no, kids would always play with it.
Q:Right?---
A:Yeah. It was accessed by both.
Q:How frequently was it that towels were put on the floor near that water dispenser?---
A:Weekly, I would say.
Q:Right. Apart from that position where towels were used, was there any other covering put on that surface whilst you were working there before your fall?---
A:No.
Q:In relation to that area did you have any comment made to you by patrons in the weeks prior to your fall about that area?---
A:Yeah, I did.
Q:Tell His Honour what that comment was?---
A:So, about a week before I fell, a male approached me, he was very angry, and he had stated that his mum had like slipped and he caught her. And he was yelling at me saying that something needs to be done because he said that - his words were ‘that would have been the end of her’. But he was very - - -
Q:Did you make any response to that?---
A:I apologised to him, and I told him that I would tell my manager.
Q:After that male approached you and spoke to you, what then happened regarding you and your manager?---
A:I informed my manager - my manager, I’m quite certain it was Terry came to me because she saw me getting yelled at, and he said - she asked me what he was yelling at me for. And I told her that his mum had slipped and she had - he was yelling at me because of that, and she didn’t - nothing really was said to me anyway.
Q:Apart from that event when that man yelled at you, were you aware of any other people having difficulty with balance in that area?---
A:I seem - - -.”
MR STANLEY:
“Your Honour, I just object and ensure that the question is framed whether she saw - - -.”

MR TOBIN:
Q:“Right, I’ll put it in the first. Did you see anyone else having any problems with balance in that area?---
A:I did. I witnesses (sic) two kids fall in my three months of being there.
Q:When you say witnessed them fall, can you say whether – where it was in relation to the tiled area that you saw them fall?---
A:It was near the water tank on the opposite side.
Q:Right. Now, on the - - -.”
HIS HONOUR:
Q:“When you say the opposite side, opposite side to what?---
A:Sorry, to this photo.
Q:I see. Just while I’m talking to you, I just again just want to clarify in my own mind, I understand where you’ve talked about the water cooler, you’ve talked about this bar here being the primary bar and the other one was only opened when it was very busy, is the bar service area the length of the bar or is it just where I see glasses and looks like two vertical stilts going up with a TV or blackboard there or something?---
A:So, we would serve this whole – sorry, we would serve this whole side and, sorry, you before you stated that it might’ve been like something to heat – where I fell it wasn’t a bain-marie, it was actually an ice-cream – that’s where ice-cream was served.
Q:That’s what we saw running that – I think I mentioned running 45 degrees?---
A:Yes, that’s an ice-cream - - -.”[10]
[10]T52, L13 – T56, L1

33The plaintiff was asked whether, although the photograph was some eight years later, there was any significant change in the structure and nature of those tiles compared to what it was back in July 2012, to which she said “No”.[11]
[11]T57, L5
34The plaintiff described that on the night of the incident she was looking for a table number, as she was taking meals to various tables. The tables were beyond the bar, in a big open space, and the tables go from the bottom right-hand corner of the photograph around all the way to the playground at the back, which the photograph could make out slightly. The plaintiff was not sure whether she was carrying two or three plates, but they were taught to hold three. However, she does recall that one of the plates had a serving of parmigiana because it went all over her clothing. She described the plates as “dinner plates”, “quite large and heavy” – “Heavier than a usual plate.”[12]
[12]T57, L29
35In particular, the following evidence was given in relation to her fall:
Q:“As you walked along that tiled area can you tell His Honour what happened?---
A:I recall going to hand out food. I was walking. I remember slipping. I slipped. I’m not sure which foot it was. I didn’t know at the time I slipped but I felt the sensation of going backwards and then I went forward to try and save myself.
Q:What happened?---
A:There was a table in this photo on the left of where this area is, and I fell down onto my left side and I struck the table with my shoulder.
Q:When you say in the - where was that table - looking at that photograph there, and you say it’s on the left, is it at the end of the aisle of tiles or - - - ?---
A:Yeah, so it was just off the tiled area to the - to the left of the bar on this photo.”
HIS HONOUR:
Q:“Just so I understand - - - ?---
A:You get it, yeah.
Q:If the table was there, as it were, when this photo was taken, would I see the table clearly at the end of the tiled area or is it around the corner, for want of a better word, to the left, and it would not be visible from this photo, or is it - would it have been partly visible and partly round the corner, if that makes sense?---
A:So, it was pretty in line with the end of this bar, it was slightly to the left, but it led - we had a pathway to walk through, partly, yeah.”
MR TOBIN:
Q:“Yes, and did your body in any way strike the table?---
A:I recall my shoulder.
Q:Which shoulder?---
A:My left.
Q:And apart from your left shoulder striking the table did you fall as well?---
A:Yes, I hit the table, then the floor.
Q:Did you drop the plates?---
A:Yes, they flew.
Q:Was - could you describe the fall as to whether it was something that happens - was it a quiet fall, or was noise associated with it?---
A:No, it was quite loud. I recall the - I recall like everyone stopped, it was - it was quite loud, yes.”
HIS HONOUR:
Q:“And I take it from what you tell me, do the plates break, the - when they fell - - -?---
A:To be honest I don’t - I don’t know what happened to the plates.
Q:Yes?---
A:But the food was definitely covering me.”
MR TOBIN:
Q:“And when you - the fall stopped, where were you?---
A:On the floor.
Q:Can you remember whether you were on your back or were you on your side, or - - - ?---
A:On my left side.
Q:What happened immediately after the fall finished?---
A:A man helped me up and then Tiffany approached me because she saw me on the ground, and then Terry approached me as well.
Q:Right. Now, the man that helped you up, was he an employee?---
A:No, he was a patron.
Q:And do you know where he was at the time of your fall?---
A:I’m quite certain he was sitting at the table.
Q:Right. And Tiffany, do you know where she was at the time of your fall?---
A:She was working behind the bar.
Q:And you say Terry came – can you say where she – well, sorry. How long after the man and Tiffany attended to you did Terry come?---
A:Someone informed her I fell, maybe – I don’t remember but like a minute maybe.
Q:After you fell did you make any observation of what caused you to fall?---
A:As soon as I got up, I walked – like I turned around because I knew I slipped but I didn’t know how and you could visibly see my sliding – my foot slide marks though – on the tiles.
Q:And you say through, through what?---
A:Liquid. I’m not sure what was – it was spilt but there was a spillage about maybe 20 centimetres by 20 centimetres.
Q:And how long was the skid mark?---
A:It was quite – quite long. Probably about 60 centimetres.
Q:Right. That mark - did you recognise what the liquid was that you slipped on? I can’t – I don’t – I don’t know.”
HIS HONOUR:
Q:“The liquid you saw though, did it appear to be coloured or clear or what?---
A:I couldn’t see what colour it was because the tiles are pretty dark, it just appeared to be clearish.
Q:And just what I wanted to ask you earlier, you’ve told the court that before this – sorry, don’t – I jumped to[o] quickly. You had done the service work on about three or four occasions, is that right?---
A:Yes.
Q:In distinction to the bar work. And this is obviously the last time you did service work, so does it follow prior to this night you’d done service work three times maybe four times, that sort of order, is that correct?---
A:Yes.
Q:Yes. Thank you.”
MR TOBIN:
Q:“You mentioned that it was a liquid but you also mentioned that that was an area near where there was an ice-cream serving?---
A:Yes.
Q:Did it appear to be an ice-cream or a drink type liquid?”
MR STANLEY:
“Your Honour, I think this is getting into leading here - - -.”
MR TOBIN:
“Right.”
MR STANLEY:
Q:“Clearly asked?---
A:It wasn’t milky.”
HIS HONOUR:

“Ms Gartmann, just stop there. No, I won’t allow that question, you can- - -.”
MR TOBIN:
Q:“After observing that mark on the tiles, did you make any observation of that to anyone else?---
A:Yes.
Q:To whom?---
A:I told – Terry approached me and asked me what had happened and I told her I slipped and then I showed her where I slipped and it was clearly visible.
Q:Right. And when you say you showed her did she in any way react to what you’d shown her?---
A:I can’t recall clearly what happened, I – she – I think she’d asked – we went upstairs after that I don’t - - -
Q:When you say you went upstairs, where did you go upstairs?---
A:So, we walked down here and then we went towards the left of this photo and we went upstairs into the manager’s offices.”
HIS HONOUR:
Q:“Ms Gartmann, I didn’t understand that totally. Looking at the photo, so you walked back towards [where] the cameraman would’ve been at that stage?---
A:Yes, Your Honour.
Q:Turn – it would’ve been your right would it where you got to that corner?---
A:Yes, Your Honour.
Q:And then that goes off and upstairs somewhere?---
A:Yes, to the manager’s offices.
Q:The other thing I just wanted to ask, you may have made this clear, I may have missed it, the man who stood up and you believed was on that table, the one which was in front of you as you tripped, was that the table where you were intending to serve the meals or was it somewhere else?---
A:No, I wasn’t – I wasn’t at the table for the meals.
Q:I understand. Thank you.”
MR TOBIN:
Q:“When you went upstairs to the manager’s office, who went up there with you if anyone?---
A:Initially it was me and Terry.
Q:Right?---
A:I know that Tiffany did come upstairs to check on me as well, and another employee, but I can’t recall who it was.
Q:Now, when you had this fall what shoes were you wearing?---
A:They were black lace up shoes.
Q:Right?---
A:They were purchased just prior to employment, so three months earlier.
Q:And those shoes had you worn them previous to this night?---
A:Yes, every time I worked.
Q:And did anyone comment to you about the shoes being inappropriate?---
A:No.
Q:And insofar as you told His Honour that when you stood up you could observe the skid mark and the liquid on the floor, had you seen that liquid prior to falling in it?---
A:No. I was looking for the table number, I wasn’t - I didn’t look at the floor. I wasn’t expecting it to be wet.
Q:And you’ve talked about it being able to be seen when you stood up and looked at the skid mark, what was the visibility of that area like generally in relation to seeing that type of liquid?---
A:Sorry, could you repeat the question?
Q:If in fact you were looking generally for that type of liquid how visible would it have been on that floor as you were walking along?---
A:Yeah, no it’s very difficult to see on that floor, and also holding three plates, large plates, you can’t really see your feet.”
HIS HONOUR:
Q:“I was just going to ask you about that before. As I understand it, I think you’ve touched on this, that when you’re serving plates, and if - I know you’ve expressed you’re not certain but you think it was three. You’ve got, what, one hung onto to either hand and the arms are extended to allow the third one, as it were, to rest on your forearm area; is that correct?---
A:Yes, Your Honour.”[13]
[13]T57, L30 – T62, L30

36Later, when she went back to the hotel, on a return-to-work offer, the plaintiff was asked whether she noted anything in relation to the flooring outside of the bar, as to what was on the flooring area, to which the plaintiff answered “there were mats”.[14]
[14]T80, L21-24
(b) The cross-examination of the Plaintiff
37Under cross-examination, it was put to the plaintiff that clearly the tiles which had been photographed were the same tiles as eight years prior, when she suffered the fall. It was suggested to the plaintiff that the tiles are not so slippery when wet, and they indeed were purpose-placed in the position they are, to which the plaintiff responded:
“With all due respect, if they weren’t slippery, I wouldn’t have witnessed people – so many people fall on them and it’s not just me, a lot of people know of people falling on them.”[15]
[15]T160, L26-31

38The plaintiff was further cross-examined about her witnessing people falling on the tiles, and the following evidence was given:
Q:“All right, well, perhaps we’ll touch on that. You started at the Kealba on 10 April 2012?---
A:Yes, Sir.
Q:Three months before this injury?---
A:Yes, Sir.
Q:During that period, I think you worked, what, about two shifts a week?---
A:Three or – three or four.
Q:And during that period as your evidence has been you yourself observed people slipping?---
A:I did, Sir.
Q:And particularly slipping in the exact spot where you slipped?---
A:No, I didn’t – well, I didn’t witness the one where his mother fell, he told me that and the two kids that I saw fall was from the opposite side, it wasn’t where I’d slipped.
Q:I see. So, you saw kids fall on the opposite side but on similar tiling?---
A:Yes.
Q:You saw and you – sorry. You heard a report from a man who said that his mother had nearly slipped in the vicinity of where you ended up slipping?---
A:No, he said that she had slipped and he had caught her.
Q:Right?---
A:And he yelled at me about it but I didn’t witness him do that.
Q:And I think you said that you were in the time when you’re working there appreciative that that drink fountain would lead to spills at or around the place where you fell?---
A:Yes, Sir.”[16]
[16]T161, L1-24

39In response to a question that she was well aware of the potential to slip on the tiles, the plaintiff responded that they were slippery, “but I didn’t expect for me to slip myself”. She was holding plates, and was not looking at the floor but looking for a table number to deliver the food.
40She disagreed with any suggestion that if she had taken on board her observations, her knowledge of the hazard which existed, she would not have slipped.
41The plaintiff was also questioned that, given her evidence that although she saw a substance that she slipped on which she thought to be about 20 centimetres by 20 centimetres, she did not actually identify the liquid involved. The plaintiff also confirmed again that such liquid was not coloured, and she did not know whether it was beer or bourbon or water, and even, she said, it could have been possibly a liquid-style ice cream, although she thought she would recognise that colour.
42The plaintiff also confirmed that it was impossible to walk on the carpet area in the bistro where the tables were situated, and it was necessary to walk down the tiled floor parallel to the bar, and the actual incident took place about an hour-and-a-half after the shift started, to which the plaintiff stated, “Roughly, yes”.[17]
[17]T164, L5
43The plaintiff accepted that she would have walked over the area many times at night prior to her fall, and she accepted that she did not notice anything prior to her fall when it occurred, despite walking over this area on numerous occasions.
44In particular, the following evidence was given:
Q:“But what you can say is that you didn’t observe any spillage there during any of those passings?---
A:No, I didn’t see any spillage, sir.
Q:And you simply don’t know how long that spill had been there for?---
A:No, sir.
Q:It was part of your job as a waitress, and indeed as a bar tender, to keep a lookout for spills and then to attend to their cleaning up; is that right?---
A:Yes, I - yes, I - yes.
Q:And indeed you’ve answered that in an interrogatory that was put to you, ‘Did your work duties involve cleaning up spills on the floor, and/or advising of the presence of spills on the floor?’ And your answer was, ‘Yes’?---
A:Yes, when we were – when we were notified of spills and when we were asked.
Q:And clearly if you had walked over a spill prior to your fall you would have cleaned it up, or advised someone of that spill?---
A:Yes, sir.
Q:And you would, from your appreciation, appreciate that other staff would do similar?---
A:Yes, sir.”[18]
[18]T165, L18 – T166, L6

45The plaintiff gave evidence that she “vaguely” recalled undergoing an induction when she commenced work with the defendant. The plaintiff was taken to a four‑page document which she accepted showed her signature on the last page. The induction sets out various matters which contain boxes for ticks, and she accepted that part of the induction related to footwear, and she was told that she would have to wear black lace-up shoes, which she was wearing at the time.[19]

[19]The defendant tendered the four-page document headed “Department of Safety Induction Check List” found at pages 320-323 DCB and this later formed the basis of exhibit A.
46In particular, it was suggested to her that part of the induction involved the risks of slipping, which were identified to her by the Kealba Hotel, to which the plaintiff responded:
A:“They didn’t tell me, I was - they - I don’t recall it being mentioned. I saw it, that’s how I knew it was a risk. I don’t remember someone telling me.
Q:And regardless of someone telling you, you’re aware that slips can be a risk to injury?---
A:Yes, sir.”

47During cross-examination, the plaintiff was reminded of her earlier evidence-in-chief, that when she went back to the defendant’s hotel to attempt a return to work in April and September 2013, that she noticed that there were “mats” on the floor. The following evidence thereafter ensued:
MR TOBIN:
“She said there were mats in that area when she was working there, Your Honour, the mats inside.”
WITNESS:
“The mats inside when I was working there.”
HIS HONOUR:
Q:“Just so we’re quite clear then, you say you observed when you were back there in April and September, mats on the area which you walked over and tripped in the previous year. There are mats in that area now on the floor?---
A:Yes, sir.

MR STANLEY:
Q:“And that’s a pretty important recollection, because as you say, ‘Wow, the employer now has mats in the position where I fell’?---
A:It was - - -
QDo you agree with the sort of importance of your recollection on this matter?---
A:I just recall seeing it, sir. Like I – I didn’t – what was the question?
Q:You’re suing the Kealba Hotel for doing something wrong, for being negligent?---
A:Yes, sir.
Q:And part of your case is – ‘Here’s the proof you were negligent, you put mats on an area where I fell’. And it will be said that that indicates that the Kealba should have put mats before you fell and therefore avoided your fall. You know the significance of that recollection in that case, don’t you?---
A:So it’s good that they put them there.
Q:It’s good for your case?---
A:Why?
Q:You’re not that naive, Ms Gartmann, I suggest. You know that your case is one that in part says to the Kealba Hotel, ‘You’ve should’ve had mats on the day I fell’?---
A:Well, it’s too late then, sir. It’s just better because no one else will fall.
Q:I suggest that your recall of that matter about seeing the mats is a recall which is important and you would convey it to your solicitors at the very earliest opportunity?---
A:Well, I don’t know when I conveyed it to them, sir, I just recall going.
Q:We’ve referred - your serious injury application started with an affidavit sworn by you in November 2017?---
A:Yes.
Q:Within that affidavit at paragraph 7 you’ve said this, ‘I have been – I have also been told that approximately three weeks earlier there had been complaints made to the defendant about the slipperiness of the floor in the same area where I slipped and fell’. And that’s a matter which you’ve spoken about in evidence?---
A:Yes, sir.
Q:And to which back in November 2017 you likely told the person who was assisting you in typing the affidavit up, is that right?---
A:Told them that someone had fallen?
Q:Told them that you’d been told that the defendant had been – there’d been complaints that people have - - -?---
A:That I complained myself.
Q:Right?---
A:Like, they were aware because of complaints, I had told the manager’s myself as well as everyone else.
Q:Well, let’s take the paragraph from the top, ‘Prior to my injury patrons at the hotel had complained to me that the floor was slippery’?---
A:Mmm hmm.
Q:That’s true isn’t it, that’s what you’ve said to this court?---
A:Yes, sir.
Q:I suggest that that’s what you likely told a barrister back in 2017 so that it then featured in your affidavit?---
A:But I would’ve told them that before. When I’ve been asked, I would’ve told them.
Q:Yes. But how it got to your affidavit was you told someone, ‘Prior to my injury patrons of the hotel had complained to me that the floor was slippery’?---
A:Yes, it was – it wasn’t just me, sir, lots of the staff there know. Everyone – everyone – lots of people got complaints.
Q:All right. All right. You go on in this paragraph 7 it finishes with the sentence, ‘I have also been told that after my injury the defendant placed non-slip floor mats on the floor’?---
A:Yes.
Q:Full stop. I’ll read it again. ‘I have also been told that after my injury the defendant placed non-slip floor mats on the floor’. At no point in that affidavit do you identify you yourself seeing floor mats on the floor?---
A:But I did, sir.
Q:I suggest that you have made that up in recent times, that in fact when you were considering the matter in 2017 you told the author as much as you could about the mats and that was that all you had been – all you knew about the mats was that you were told?---
A:I wasn’t told, sir, I seen them.”
HIS HONOUR:
Q:“Ms Gartmann, I understand what you’re saying but what’s being put to you is an affidavit which you swore back at around the time of the serious injury application and you’re saying there that you didn’t see them, you were told by someone that mats had been put there. You understand that distinction?---
A:I know but I - - -.”
MR TOBIN:
Q:“Your Honour – Your Honour, I object that as that distinction, the fact that she’s been told there’s non-slip mats were put there and that later she sees mats there is – the only comment can be made is you didn’t say that you also saw them there but the fact that she’s – what she’s saying she was told that they were put there after the fall. And then she goes back eight months later and she sees mats there. But what the affidavit says that somebody - - -?---
A:I shouldn’t have said that - - -
Q:Told her that they’d done it and then when she went back there’s – there’s not an inconsistency - - -.”
HIS HONOUR:
“I think it might be, Mr Tobin.”
MR TOBIN:
“There might be but not the way Your Honour put it.”
HIS HONOUR:
Q:“Well, Mr Tobin, the affidavit clearly was drawn at a time when she’d been back and well after this incident, six years – probably five or six years after this incident and in the affidavit the only reference to the mats is something she’s been told. Are you suggesting she went back after the drawing of the affidavit and saw them?---
MR TOBIN:
A:“No, Your Honour, exactly the opposite. She was told that the mats were put there as non slip mats. And when she went back, she says she saw mats there. Now, the affidavit says ‘I was told they’d put non slip mats down’ because of her fall - - -.”

HIS HONOUR:
Q:“And what - - -.”

MR TOBIN:
A:“They question may be – but what Your Honour put, there’s an inconsistency – there’s not. It may be an omission, but not an inconsistency.
WITNESS:
A:“I should’ve said that I saw them and was told. I understand – I know I should’ve said that.”

MR STANLEY:
Q:“Ms Gartmann, I suggest that the topic of mats on the floor was discussed between you and perhaps the barrister who was formulating this affidavit, and that if indeed you told the barrister that ‘I saw the mats’, it would’ve been included in your affidavit?---
A:I’m sorry, it wasn’t.
Q:And that the truth is, you’ve never seen mats on the floor?---
A:Yes, I have.
Q:The highest you can put it is as you put it in that affidavit, that you’d been told?---
A:I’ve seen them as well, sir. My own eyes.
Q:You were given this affidavit – and I can show you a copy if you want – but you signed each page and you swear at the conclusion that it’s true and correct – why would you not - - -?---
A:I don’t know why I didn’t - - -
Q:- - - say ‘Hold it, I’ll also put there that I’ve been told and seen’?---
A:I don’t know why I didn’t do that, sir.”[20]
[20]T755, L20 ꟷT759, L29. The defendant tendered the affidavit sworn by the plaintiff on 2 November 2017 and that is marked as exhibit H.

(c) The evidence-in-chief of Tiffany LaRocca
48Ms Tiffany LaRocca gave evidence, describing her occupation as a gym manager, and was on the verge of resuming work after COVID problems. Her evidence was interposed during the cross-examination of the plaintiff. Her evidence related to both the issues of liability and quantum. I will refer to all of her evidence, given that such evidence traverses both liability and quantum issues.
49Ms LaRocca gave evidence that she is aged twenty-eight years old and that she had known the plaintiff since early high school at the Ave Maria College, during which time they became “good friends” and have remained friends to the present day. They both completed Year 12 together in 2010. Back in those days, she observed the plaintiff to be a “very fun, positive, outgoing girl … very fit and healthy … very social”.[21]
[21]T201, L29-30
50Furthermore, Ms LaRocca described the plaintiff as being very fit and healthy, exercising frequently, and in particular, she was seen jogging around Maribyrnong, and playing volley ball and tennis. She was popular at school and had many friends, and was very outgoing, and, accordingly, very sociable.
51In particular, she had no apparent physical or psychological problems when she left school, and she had a desire to become a journalist, following various placements at Channel 7 News.
52Ms LaRocca gave evidence that in or about 2011, she saw less of the plaintiff, as they had a falling out. They later reunited at a party which occurred prior to either Ms LaRocca or the plaintiff commencing work at the Kealba Hotel.
53Ms LaRocca confirmed that she commenced work at the Kealba Hotel in the middle of 2012. After they reunited, she considered the plaintiff to be her old social self, and she did not notice any restrictions of a physical or psychological nature in those first six months of 2012, although she had been unaware the plaintiff had suffered glandular fever during 2011.
54Ms LaRocca was employed at the Kealba Hotel for about a year and was present at the hotel on Friday, 13 July 2012, when the plaintiff suffered her fall. At that time, she was bartending, so working behind the bar. She believes she commenced work about 5.00pm, being the evening shift.
55Ms LaRocca was shown the photograph previously shown to the plaintiff.[22] Ms LaRocca identified the Kealba Hotel bistro area. Part of that photograph was showing the island bar in the bistro area. She confirmed that she was working behind that bar on that night.
[22]See page 328, PACB
56Ms LaRocca gave evidence that she observed the plaintiff to be “in a lot of pain”,[23] and she was “holding on to her shoulder and crouching over”.[24] Ms LaRocca described that the plaintiff was then taken upstairs by one of the managers, Terri, and she also went up, but did not stay long at that stage as she was sent back to finish her shift. When her shift became a “bit quieter”, she was allowed to go and check on the plaintiff again and she found the plaintiff in the manager’s room sitting on a chair with an icepack on her shoulder, talking to the manager, Terri. In particular, Ms LaRocca gave the following evidence:
[23]T210, L3-4
[24]T210, L7-8
Q:“And how was she in your observations?---
A:She was not well. Like she just wasn’t normal.
Q:When you say she wasn’t normal, was she in pain?---
A:Appeared to be like she was in pain.
Q:Okay. And just describe her demeanour and her mannerisms when you were up there with her?---
A:She was crying, she was like – just like – yes, I can’t – I don’t know how to explain mannerisms, sorry.
Q:How long did you stay up with her?---
A:Just for a couple of minutes because I had to finish my shift.
Q:And you said she had an ice pack?---
A:Yes.
Q:What was she doing with the ice pack?---
A:Putting it on the shoulder, holding it.”
HIS HONOUR:
Q:“What shoulder was it, Ms La Rocca?---
A:Her left shoulder.
Thank you.”
MR COLDWELL:
Q:“What happened then? Did Luzinda go back to work or what did she do afterwards as far as you’re aware?---
A:No, she left work early that night.
Q:Do you know how she left work?---
A:Not too sure how she got home.
Q:And did you keep working?---
A:Yes, I finished my shift.
Q:And if you were doing the evening shift or the dinner shift that evening do you know what time you ceased work that night or the shift finished?---
A:It would’ve been around 10.30 or 11.00.
Q:Okay. And after you’d finished your shift what did you do then?---
A:Afterwards I went to Luzinda’s house to check up on her.”[25]
[25]T210, L31 – T211, L29

57Ms LaRocca was again referred to the photographs to which reference has already been made, and in particular, she was referred to what were called “tiles” immediately in front of the bar to which reference has been made. The following evidence ensued:
Q:“There seems to be some light reflecting off them, perhaps the camera. Are they the tiles, as best you can remember, that were there in 2012 while you were working at the Kealba Hotel?---
A:Yes, they look the same.
Q:And from time to time did you do waitressing and bar duties in that vicinity?---
A:Yes, I did.
Q:And did you walk along those tiles at various times?---
A:Yes, multiple times.
Q:And did you observe patrons of the hotel walking up and down those tiles whilst you were working there?---
A:Yes, all the time.
Q:Do you have a view about those tiles from your own observations and experience as to whether or not they were slippery?---
A:Yes, I do and they were very – not appropriate tiles.
Q:Well, let’s not talk – won’t use the word appropriate, just in relation to the tile surface and your personal experience of walking on those tiles, what were they like to walk on?---
A:They were a bit slippery.
Q:And are you describing the tiles as they are with or without liquid on them?---
A:So, without liquid.
Q:Yes how were they without liquid?---
A:They were still a bit like slippery.
Q:And did you ever have experiences where there was liquid on those tiles whilst you were working?---
A:Yes, multiple times.
Q:And did that affect the slipperiness of the tiles in your experience?---
A:Yes, more prone.
Q:When you say more prone, are you saying that it made the tiles more slippery if they were wet?---
A:Yes.
Q:How often whilst you were working there did you observe the tiles becoming wet?---
A:Throughout the duration of the time I was working there it was consistently happening.
Q:And were there any particular reasons that you were aware of that that tiled surface was becoming wet whilst you were working there?---
A:Yes, so two reasons. One because patrons would order drinks from there, and as they were walking away would spill a lot of their drinks that they’re holding. And also we had a leaking water fountain that was in the corner of bar.
Q:When you say a leaking water fountain, first of all, is it possible to demonstrate on that photograph where that fountain was located?---
A:Yeah, so there was one - so, facing the camera, far end towards like the corner of that bar, so where that mouse is right there.
Q:Yes?---
A:Yes, it - it was placed there.
Q:And when you say it was leaking, what do you mean by that?---
A:It would sometimes be overfilled with water, the - so we didn’t have to refill it. And then the bottom of the tray, whenever it used to get too full because people used to pour their own drinks, it used to tip out from the sides, so - - -
Q:And what if anything was done about it when the - when that fountain or drink dispenser leaked onto that tiled floor?---
A:If we seen (sic) it happen we would have to just mop it up, clean it up.
Q:Yes?---
A:But if we didn’t see it happen, nothing was really done.
Q:Okay. Had you actually slipped yourself on those tiles whilst you’d been working there?---
A:Yes, I have.
Q:In the time you were there, is it possible to estimate how many times you slipped on those tiles, in the photo we’re shown?---
A:I’ll just say multiple times because I was there for a long time.
Q:Yes, when you say multiple times, are we talking two or three, five or six, more?---
A:More.
Q:Well, what’s your best estimate based on your - your experience, or your recollection of slipping on those tiles?---
A:15 times.”
HIS HONOUR:
Q:“I’ll just ask you, Ms La Rocca, when - you started there, you believe, when?---
A:I believe it was in the middle of a year, like the middle of the year.
Q:Middle of the year. Well, perhaps can I put it another way, how long do you think you’d been working there when your friend fell over?---
A:Probably a month or so.
Q:And in that month leading up to the fall were you working behind the bar on occasion, as you described?---
A:It would be more - I would be more waitressing.
Q:I understand that?---
A:Yeah.
Q:But behind the bar sometimes?---
A:Yes.
Q:And waitressing, but you say waitressing more often than behind the bar?---
A:Yes.
Q:And when you describe the number you’re estimating of the slips you saw, were they slips over the period of your employment in about a year?---
A:Yes.”
MR COLDWELL:
Q:“The slips that you’re describing to His Honour, did they occur before Ms Gartmann’s accident, after Ms Gartmann’s accident or a combination of both?---
A:Combination of both.
Q:Had you whilst you were working either as a waitress or a barman in that area observed any of the patrons at the hotel slip?---
A:Yes, I have – had.
Q:And on how many occasions observed patrons slipping in that area approximately?---
A:Is this for the duration of the time I was there?
Q:Yes. And then – then after – yes. During the duration?---
A:Yes, a lot of – like a lot times. Like there was a lot of complaints.
Q:Well, I just want to – you to break that down. Did you actually physically observe people slipping yourself?---
A:A couple of times, yes.
Q:And did you actually – did you also receive complaints from people that had told you that they had slipped?---
A:Yes.
Q:And how frequent were those complaints and the observations of patrons slipping?---
A:There was always and issue every time I worked.
Q:When you say there was always an issue, are you saying that it was – it occurred most shifts that you worked?---
A:Yes.”
HIS HONOUR:
“Sorry, Mr Coldwell, I just want to understand that.
Q:By that are you saying that most shifts you worked you received complaints about falls and or say falls?---

A:Yes, it would be a combination of both of what I can recall.”
MR COLDWELL:
Q:“Did you pass on those complaints and your observations to the hotel?---
A:Yes.
Q:To your bosses?---
A:Yes, to my managers.
Q:Do you recall speaking to anybody in particular about complaints of slipping on those tiles?---
A:Yes. To one of the managers, I remember his name was Sam.
Q:Okay. And what did he say when you – first of all I’ll ask you how many times do you recall complaining, sorry, passing on those complaints to Sam?---
A:Like, six times. Like I have complained to him a lot.
Q:Okay. And did Sam say anything back to you after you’d made those reports to him?---
A:Yes, he told me just to clean up any spills on the ground.”[26]
[26]T216, L16 – T220-L18

58Ms LaRocca gave evidence that she finished her shift around 10.30pm or 11.00pm and afterwards drove to the plaintiff’s house to check up on her. On arriving at the house, she went in and stayed the night with the plaintiff, sleeping next to her in her bed. She believes she obtained a little bit of sleep, but was woken up by the plaintiff pretty early the next morning, because she “wanted to be taken to a doctor”.[27] She believed that time was about “sevenish, 7.30”.[28]
[27]T212, L17
[28]T212, L19
59Ms LaRocca gave evidence that she then drove the plaintiff to the closest medical clinic, which was the medical clinic, “Medical One”, at Taylors Lakes, and thereafter gave the following evidence:
Q:“Okay. And you say you drove there. What happened when you got there?---
A:So, when we approached the clinic we were waiting for like someone to go into the clinic and we saw a man - - -
Q:Just if I can stop you there. When you - you say you were waiting for someone. Was somebody already there when you arrived?---
A:As we approached and I parked, someone then answered, like was at the front of the clinic.
Q:And when you say someone, can you describe that person?---
A:He looked like a professional that worked in the clinic, so was - - -
Q:Was it a male or a female?---
A:It was a male.
Q:And can you describe him as to how old he looked and what his appearance was like?---
A:He was like an older man, around his 40s or - older man back then. And his appearance, he - just looked like a Caucasian Aussie.
Q:Okay. And did you say anything to the man?---
A:No, I didn’t.
Q:Did Luzinda say anything to the man?---
A:She did.
Q:Did you hear what she said to him?---
A:Unfortunately no.
Q:What then happened?---
A:And then we got taken - taken into the clinic, to a room.
Q:Yes?---
A:Where he put Luzinda on a bed or I don’t know what that thing was, and he was just examining her, like left arm, while he got me to sit on the right arm - arm, like on the right side of her.
Q:Sorry. Sorry, just slow down. He got you to sit on the right-hand side of her?---
A:Yes.
Q:And do you know why he did that?---
A:To grab her arm, but I’m not too sure why.
Q:Okay, and so what arm did you - did you grab her arm?---
A:The right, her right side.
Q:And I’ll just ask you, did you grab her right side?---
A:Yes.
Q:And what did the gentleman do that was inside the clinic with you?---
A:He was examining and doing something to her, like - to her.
Q:And what part, if any, was he examining and what - what was he examining as far as you could see?---
A:He was examining her shoulder, where she was complaining about.
Q:And was that the left or the right shoulder?---
A:Left.
Q:After he had done that do you remember him doing anything else in relation to Luzinda and her arm?---
A:So, he gave her a sling. He gave her a sling to leave with.
Q:When you say a sling, can you describe what you mean by a sling?---
A:So, those - those slings, it’s like a white - it looked like a white - you know those white bandage things that go around the arm, and up - - -
Q:Okay?--- - - -
A:(indistinct) hold it into place.
Q:And do you recall any other discussion that was going on between Luzinda and the man at that stage?---
A:There was a discussion going on, but I don’t recall what they were saying.
Q:Okay.”

HIS HONOUR:
Q:“Just where you said a sling, I understand that wrapped around the arm, but did it extend around the neck, like was it someone holding their arm right in the front, or how was it?---
A:It was - so it was positioned like this, I can’t - I can’t remember if it went round the neck or - I’m guessing around the neck because it would have - how it held. So, he made her leave with one of the - those white - is it called a sling or a bandage, I’m not too sure.”

MR COLDWELL:
“Well, yes - - -.”
HIS HONOUR:
Q:“Probably went round the next (sic) but you’re not sure?---
A:No, no, yes, she did have something but I’m not sure if it’s called a sling or a bandage.

I see, thank you.”
MR COLDWELL:
Q:“Okay. And what happened after that, Ms La Rocca?---
A:Then we – I took her back home.
Q:Yes. Did you – did you just drop her off or did you go inside with her, do you remember?---
A:Yes. I stayed with her just for a little bit just to make sure she was okay and then after that I went home.
Q:Okay. And how much – how long approximately did you spend with Luzinda that morning from when she woke you up until when you left her house in the morning that day?---
A:I feel like it was about an hour or so.”[29]
[29]T212, L25 ꟷ T215, L7

60Ms LaRocca also gave evidence that she has kept in contact with the plaintiff since the incident in 2012 and would catch up with her “once every couple of months”.[30] She was aware that the plaintiff was now doing some part-time work with The Les Twentyman Foundation.
[30]T220, L23
61Ms LaRocca was then asked about her observations of the plaintiff since the incident. Ms LaRocca gave evidence that she had noticed physical changes in the plaintiff since the incident, in that she was incapable of doing “just simple tasks … Things just like opening doors, opening jars, even driving, she uses something on her wheel.”[31]
[31]T221, L3-7
62Furthermore, Ms LaRocca gave evidence that the plaintiff has told her she is in pain and, indeed, Ms LaRocca gave evidence that she observed signs of the pain by the way the plaintiff acts and how she is incapable of having fun, as she did in the past. Ms LaRocca gave evidence that when the plaintiff complained of pain, it involved “her whole left side, upper body” and, in particular, when asked about any observations of her left-hand side upper body since the incident, the following evidence was given:
A:“Yes. It - like occasionally when I’m with her it jolts, I don’t know if - what that is, but it jolts.
Q:Okay, when you say it jolts, is that something that you observe yourself, or is that something that Luzinda points out to you, or both?---
A:No, I observe it, and then she’ll explain to me why it’s happening.
Q:And what does she explain to you?---
A:She’s just explaining to me the reason why it’s happening, like - sorry, I don’t understand the question.
Q:I was just saying you observe it, and then she said - she explains what’s going on?---
A:Yes.
Q:Have you noticed any other problems in relation to her left arm, in your observation?---
A:No, not my observation.
Q:What about things like exercise. You used to - you said that you used to go for runs with Luzinda along the Maribyrnong?---
A:M’mm.
Q:Have you done any running with Luzinda since her accident?---
A:No, haven’t done any exercise with her at all.
Q:And you’re someone that likes to exercise, being a gym manager?---
A:Yes.
Q:Have you observed Luzinda playing any sport since her accident?---
A:No, I haven’t.”[32]
[32]T221, L23 ꟷ T222, L14

63Ms LaRocca also gave evidence that she has observed the plaintiff taking medication, involving multiple different pills. She also recalled that the plaintiff had some issues with “Endone” and that when she was taking this medication she was “just acting very weird and odd”.[33]
[33]T223, L6-7
64Ms LaRocca gave evidence that, during this period, she was aware that mutual friends and other people were commenting on the medication situation and that, when she went to rehabilitation, people really “started to really look down upon her”[34] and that she started to get a “really bad reputation from a lot of people I knew”.[35] Ms LaRocca said these comments got back to the plaintiff and “it ruined her reputation” and that she was “devastated”.
[34]T112, L19-20
[35]T223, L20-21
65Ms LaRocca also gave evidence that it was her observation that the psychological state of the plaintiff has changed “a lot” since the incident, and when asked to describe these changes, she stated:
“Yes, so she’s very – like she can’t put sentences together, she can’t have a proper communication – like she can’t communicate properly, she’s got a lot of anxiety, she doesn’t make sense sometimes, she’s very anti-social as well.”[36]
[36]T224, L13-17
66Ms LaRocca commented that she does not go out as much as she used to and, furthermore, Ms LaRocca was not aware of any relationships that the plaintiff has had in recent years.
67When queried about the plaintiff working with The Les Twentyman Foundation, Ms LaRocca commented that that has “helped a bit with her just having some direction in her life. For the future.”[37] But, according to Ms LaRocca, she still had ongoing physical problems, which she observed and psychological problems that she could observe. Ms LaRocca was shown a photograph of the plaintiff from a Facebook account that was taken on 14 July 2012 (the day after the incident), which showed the plaintiff wearing some sort of garment over her shoulder. When queried, Ms LaRocca said that the white garment over the shoulder looked like the sling that she saw the plaintiff wearing when attending the medical clinic early on the morning of 14 July 2012. That photograph was tendered and marked as exhibit 4.
[37]T225, L21-22
(d) The cross-examination of Ms LaRocca
68It was put to Ms LaRocca by Junior Counsel for the defendant that she appreciated that one of the reasons she was requested to give evidence in the Court case was to say that the tiles were slippery, to which the witness responded:
“I was requested to give evidence because I was there while this incident happened.”[38]
[38]T250, L13-17
69Ms LaRocca also confirmed that when she referred to observations of people slipping on “those tiles”, the tiles to which she was referring were around the island bar. The witness also accepted that she would have walked on those tiles “many, many times per shift”. She never fell, but she did add “I almost”.[39]
[39]T52, L2
70Although challenged as to her evidence about what she observed in terms of falls and complaints made to her, Ms LaRocca confirmed that she commenced work at the Kealba Hotel about a month prior to the plaintiff suffering her fall. In response to a question from the Court, the plaintiff was asked, as best she could, to see how many falls or slips there were in that first month or so prior to the slip of the plaintiff, the following evidence was given:
“So the first month? Probably because I was still a bit new to it, I just remember hearing a complaint about it. I remember hearing a complaint about it from someone – that was a patron, so someone that told the manager while I was at the front trying to grab food.”[40]
[40]T261, L21-28
71Ms LaRocca gave evidence that she did not take the photograph depicted in exhibit 4 and also stated that the vehicle in which the plaintiff was sitting was not her car – the car that she drove to the clinic on the morning of 14 July 2012.
72Ms LaRocca, when queried, said she was not “too sure” whether the photograph of the plaintiff was taken on 14 July 2012. Ms LaRocca also gave evidence that, although she recalls on the morning of 14 July 2012, she passed clothes to the plaintiff, she did not actively assist her in putting clothes on. Ms LaRocca also said she “was not too sure” whether the person who attended her in the early hours of 14 July 2012 was a “doctor she previously attended or not”. Furthermore, she could not recall whether the person attending the plaintiff made any notes and she confirmed she did not hear any conversation between that person and the plaintiff. When pressed about not hearing anything of her sitting on the right side of the plaintiff, Ms LaRocca stated that she heard them – the plaintiff and the person – “speak”, but she was “not sure what that conversation was”.[41] In particular, the following evidence was given:
[41]T234, L22
Q:“So, it – you heard – you would have heard all of their conversations but just as you sit here today, you’re unable to recall what it is was said by either of them?---
A:Yes.
Q:In terms of your assistance you sat next to Ms Gartmann?---
A:Yes.
Q:And you took her right hand as I understand it or right arm?---
A:Yes.
Q:And your evidence was that the doctor was examining her left shoulder at this time?---
A:Yes.
Q:How long did this process take of you sitting next to her and this – the doctor performing whatever he was doing to the left shoulder? How long did that process take?---
A:Are you talking about the process in the actual room?
Q:Yes. Just the time when you were asked to hold Ms Gartmann’s right – was it her hand or what did you hold?---
A:Her right arm.
Q:And did you hold the hand, the arm, the elbow, how did you hold it?---
A:I just was holding it like so, on this side, but like (indistinct).
Q:And how long did you hold it for?---
A:I’m gonna say approximately 15 minutes, what I can recall.
Q:And all of that 15 minute time was the doctor doing - what was the doctor doing?---
A:Just what I can recall was examining, going over the shoulder, looking, asking her questions, and so forth.
Q:Did you see him perform any particular movements?---
A:Yes, but I won’t be able to explain exactly what movements they are.
Q:Well, why don’t you do the best you can. What did you see?---
A:Just seen him hovering over her shoulder, moving his hands.”
HIS HONOUR:
Q:Did the plaintiff, Ms Gartmann, did she have to remove any of her clothing during the examination?---
A:I can’t recall.

Yes, thank you.”
MR CLARKE:
Q:“Was there any particular event in terms of - at any point in time did Ms Gartmann scream out in pain, or was there anything in particular about that consultation you recall?---
A:There was like noises coming from her, but I can’t recall exactly what.
Q:What do you mean, noises?---
A:So, when he was - like if he - when he touched it, I remember noises, but I don’t know what noises were coming out of her mouth.
Q:You don’t know whether they were words or other noises?---
A:No, I can’t recall what they were.
Q:And what did this - was the doctor tall?---
A:From what I remember he seemed tall because I was a lot younger back then, so I’m gonna say yes.”[42]
[42]T234, L29 ꟷ T236, L134

73Ms LaRocca was also questioned as to whether it was her vehicle shown in exhibit 4.[43] Although agreeing that her vehicle did have black leather seats, and clearly depicting the plaintiff in a sling, Ms LaRocca could not “guarantee” that it was or was not her car.
[43]In particular, I refer to the evidence at T242, L9-19
74Ms LaRocca also gave evidence that she held the right arm of the plaintiff for approximately fifteen minutes at the “doctor’s instructions”, but she was “not too sure why”.[44] Ms LaRocca could not say, or could not remember, whether the plaintiff had to pay at the end of the meeting with the person that morning, and other than saying that the “doctor” gave something to the plaintiff, she did not know whether that was a prescription or just a form. Ms LaRocca also said that she had seen the right arm of the plaintiff “jolt”, and over the period of time since the accident, she believes she has seen that happen four or five times, and the last time that may have happened was, she thought, “guessing”, about six or seven months prior to the hearing.
[44]See generally T243, L1-8

Determination of the issue of liability
75I have already recorded that there is no issue that the plaintiff slipped and fell during the course of her employment with the defendant on 13 July 2012. The issue in dispute is whether the plaintiff has discharged her onus in establishing that the defendant has breached its duty of care by failing to provide a safe place for work.
76In relation to the issue of liability, I make the following findings:
(a)   The plaintiff was employed by the defendant from approximately 10 April 2012 to 13 July 2012 (the date of the incident), in the capacity of a part-time waitress/bar attendant. The plaintiff would work three to four shifts per week;
(b)   On 13 July 2012, the plaintiff commenced work at the defendant’s premises, and in particular, in the bistro dining room, initially performing bar-attendant duties, but later performing duties as a waitress to serve patrons seated in the bistro dining area;
(c)   The bistro dining area provided plated food to the patrons who were sitting at tables on carpeted areas around the bistro area. The bistro was large and thought to have the capacity to hold two hundred to three hundred people. On the evening of the incident, the bistro dining room was “busy”;
(d)   I refer to exhibit 6 and, in particular, the photographs situated on pages 328-338 of the Plaintiff’s Amended Court Book. In particular, the plaintiff was initially shown the photograph situated at page 328 of the Plaintiff’s Amended Court Book, and gave evidence that the photograph depicted an “island bar” within the bistro dining area, from which drinks could be served within the bar to patrons who approached that particular bar. This was not occurring that night, but had occurred on approximately two occasions prior to that night, when the bar was “extremely busy”;
(e)   The plaintiff also identified the floor tiling running adjacent to the island bar and, in particular, described the floor tiling consisting of tiles which were approximately 50 to 60 centimetres in width, and which were “shiny black” and “very dark” at night time. The plaintiff also identified the carpet area to the right of the tiled flooring, and on which various tables and chairs would be set up for patrons to be seated and served their meals;
(f)    When a waitress, such as the plaintiff, was required to serve a meal, it was necessary to go along the tiled area, as it was impossible to move onto the carpeted area, because that was where the tables and chairs were situated;
(g)   At the end of the bar, there was a large water tank, which the waitresses would continually fill up with ice. Such tank did leak often, causing spillages on the floor, so it was necessary to put towels under it. This was done on a regular basis. The water tank was accessed by people who wanted to get iced water. This was also available to children, who would also use the water tank and “play with it”;

From an orthopaedic point of view, I believe that Miss Gartmann needs to increase her activity and to undertake regular low impact exercise. She does not require specific ongoing formal conservative treatment and in my view there is no indication to consider surgical intervention in her management. I do not believe that she should take analgesic medication such as Norspan. Previously she became dependent upon opiate analgesic medication on an iatrogenic basis. I do not believe that treatment such as spinal cord stimulation is indicated in her management.”[443]
[443]See report of Mr Dooley dated 13 August 2018 at page 259 DCB

Mr Dooley expressed the statement that the emotional distress which is giving rise to the ongoing pain in the areas complained of is “involuntary”, but he goes on to state:
“I believe that for symptoms to continue over a long period of time, voluntary input is needed. In most cases in this sort of scenario, the patient loses most of their friends. Often they become socially isolated. There is a need however to remain disabled as the sick role, despite its negative effects upon the patient, does bring reward in various forms and allows the patient to socially justify why they may not be able to engage in a wide range of employment, domestic and leisure pursuits. In my view, Ms Gartmann requires appropriate psychiatric treatment. She does not require orthopaedic, neurosurgical or neurological treatment.”

Accordingly, I do find that the plaintiff has suffered pains which originate as a result of psychological factors, and that situation is related to the to the fall on 13 July 2012. In this respect I reject the submission of the defendant that anything after the end of 2014 is “unrelated” or “not connected” with the fall on 13 July 2012;
(k)   I do find that from early 2015, the plaintiff had some capacity as demonstrated by her employment at the Werribee Racing Club from late spring of 2014 (no doubt following the detoxification) and Christmas 2014. However, I also find that her “employability” from early 2015 until when she was actually employed by The Les Twentyman Foundation in 2019 was low. The plaintiff gave evidence, and such evidence was corroborated by both her mother and father, that she applied for a large number of jobs – about 90 jobs over the following years, and was unsuccessful largely in part because of her WorkCover background and being off work for a long period of time.
Indeed, this was made abundantly clear when her mother gave evidence that she had arranged that the plaintiff could possibly return and work at her mother’s place of employment at DHL Global Forwarding (the plaintiff had worked there once before, although did not particularly like the work). However, all discussion seemingly came to an end when the potential employer became aware of her WorkCover background and time off work.
It is to be noted that prior to her employment with The Les Twentyman Foundation, any work that she did do was on a voluntary basis and brought about by friends engaging in such activities – for example Ronald McDonald and further volunteering work involving some degree of mentoring of young people.
Of course, during this period of time, the plaintiff continued to attend her psychologist, was referred to the psychiatrist. Dr Datta, and had been diagnosed with Complex Regional Pain Syndrome Type 1 by Dr Peter Blombery in 2014, later confirmed on examination by Dr Clayton Thomas in 2020. Such diagnosis prompted the prescription of Lyrica, which had some impact on the plaintiff’s condition. The issue as to whether or not the plaintiff has suffered or continues to suffer Chronic Regional Pain Syndrome Type 1 divided doctors within the case. Clearly enough, the diagnosis was made based on some of the criteria said to constitute such condition, whereas other doctors found no signs whatsoever to support such a diagnosis, and also suggested that circumstances of the plaintiff could give rise to coldness in an arm. This is also to be judged, at least in part, by various observations made by others of the left arm being either colder than the right, or indeed showing some colouration. It seems to be accepted also that such condition can “come and go”;
(l)    I do find on balance that it is likely that the plaintiff has suffered from CRPS1 at times in the past, although clearly there are many occasions when there is no evidence of that. Furthermore, the signs suggesting such a condition only extended to coolness of the arm compared to the right arm, and discolouration on occasion, and certainly was not manifested in more significant signs such as excess hair growth and the like. Although I believe that condition has played a role in the plaintiff’s presentation, I think a far greater role is her psychological response following her fall on 13 July 2012;
(m)     I do find the plaintiff is entitled to damages from 2014 over that period leading up to when she commenced employment with The Les Twentyman Foundation. I do so on the basis that I do accept that the negligence of the defendant has impacted significantly on the employability of the plaintiff – by that I mean although she may have had some capacity over the years from 2015, she was not an attractive proposition to employers because of her past WorkCover history and the time off work;
(n)   I do also find that after the pain management course which initially was supposedly for six weeks but extended for three months, three days a week, during 2017, the condition of the plaintiff did improve.
During the time, the plaintiff also commenced and completed a Bachelor’s Degree that is her second qualification, consisting of a degree in Social Sciences involving behavioural studies. Such degree was done largely online, and was completed in early 2020.
In particular, after the completion of the pain management course, the plaintiff continued to do various recommended activities, including going to the pool, having resistance bands, and indeed, received no ongoing physiotherapy, and treatment was essentially by way of her psychologist and psychiatrist;
(o)   I do find that in approximately 2016, the plaintiff obtained volunteer work at the Ronald McDonald House, where she worked on Friday afternoons from approximately 1.00pm to 5.00pm, and her duties consisted of a welcome desk person, and indeed, those duties were described by the witness, Mrs Heidi Collins. Furthermore, from approximately 2017, the plaintiff obtained volunteer work with the Raise Foundation consisting of attendance for about two hours on a Thursday morning at Sunshine College where she mentored a thirteen-year-old girl and tried to help with her problems. Furthermore, in or about 2017, the plaintiff did some work for a family friend through the Victorian Healthcare Lawyers once per month.
The plaintiff commenced doing voluntary work with The Les Twentyman Foundation in about April 2019. Later that year, she commenced employment with the foundation working approximately fifteen hours per week, initially over two days, but after lockdown she could work at home and spread it over a number of days;
(p)   I do find that over the time that the plaintiff has been employed by The Les Twentyman Foundation, she has been capable of doing the type of work that is necessary, that she enjoys the work very much, she has a very understanding employer, and within reason has been able to take breaks in her work if necessary.
Evidence was given by Ms Stephanie Gebert, who was the supervisor of the plaintiff, that she commenced employment on 8 October 2019, working 15.2 hours per week on a Tuesday and Thursday. She gave evidence that the plaintiff was able to write well, that is to say intelligently and coherently, within the broad strategy of the organisation, and that the foundation would have liked the plaintiff to work more hours “if she could manage it”. The reason why the plaintiff was not employed full-time at the commencement of her employment was that the plaintiff said she could only do two days and could not work full-time. It would appear that she was also at that stage continuing some of her other voluntary work;
(q)   I have formed the view that based on her improvement after the pain management course, her desire to work and, indeed, her ability to perform the type of work she was performing at The Les Twentyman Foundation, she would have been capable of increasing her hours to, say, 25 hours per week after performing that sort of work for a couple of years and becoming familiar with the work, understanding the flexibility which could be enjoyed, and her general improvement in her mental state, and being placed in a situation where she feels as though she is wanted and required in the organisation.
To that end, I intend to find that from 30 June 2022, the plaintiff has been capable of doing 25 hours a week, whether it is spread over five days or indeed three days of eight hours or so. It must be remembered that when the plaintiff was working for Werribee Racing Club, it would appear she was doing at least three days a week, given the amount of earnings for the period from late spring until Christmas.
Furthermore, as I have pointed out earlier in this judgment, although I accept that there has been a psychologically driven pain syndrome, I also find that there has been a degree of conscious exaggeration bearing in mind my findings in relation to the lack of wasting in the left arm. Such is consistent with the opinions of Dr Barton and Mr Dooley that although the advent of such condition is involuntary, as time goes on voluntary acts have to occur. I take this also into account when I come to a view about her potential for more work;
(r)   I also consider that with the finalisation of her common law claim, there will be an improvement in her condition. Dr Strauss thought that was the case, and indeed, Dr Datta urges the plaintiff to be as active as possible to improve her condition. There can be no doubt that the plaintiff found this proceeding and the lead-up to it extremely stressful, which was exhibited many times during the course of her evidence. Furthermore, the various stressors enunciated by her psychologist and to a certain degree by her treating psychiatrist will in time ameliorate and again I would expect improvement in her condition.
It is to be stressed that, in my view, the condition is one largely based on a psychological reaction rather than an ongoing organic condition, and, accordingly, the more work that she can do at this stage with her present employer, the better for the future. In this respect too, it is to be noted that in relation to her foot injury and stomach complaint which Dr Strauss gave as examples of how the plaintiff’s psychological makeup most probably has prolonged symptoms in those areas, such conditions have improved: that is, both her foot and stomach.
Of course, no one can be certain of this, and I have made some allowance for what one may call a transition period into the future to allow the plaintiff to get back to full-time employment with her present employer, and hopefully in the future engage in work which is consistent particularly with her second degree involving digital content;
(s)   I also make final comment about matters I have taken into account in relation to pain and suffering damages. As already indicated, I accept that the first three years or so following the plaintiff’s fall involved a host of different treatments, all of which made little impact on her ongoing complaints. This led to what was a devastating experience for the plaintiff undergoing detoxification and the ketamine infusion. Furthermore, she has continued to be treated by a psychologist and psychiatrist and various other doctors, leading up to the pain management course conducted by Dr Khan which, as I have found, gave rise to some real improvement in the condition. I accept that she has had pain in the arm and certain restrictions in the arm, although not to the extent of what she has said, again given the lack of wasting in the left arm. I also take account that the plaintiff made clear after her work experience with Channel Seven she saw herself as a future journalist, and indeed her first aborted tertiary course and the second course were all directed to pursuing that goal. When she underwent the internship with the Herald Sun it was, I would expect, devastating for her when she found at that time she could not, for whatever reason, complete all the requirements necessary, causing her to be off work for two or three days during that internship.
However, it must also be borne in mind that throughout this period the plaintiff has been capable of pursuing and completing two tertiary courses, albeit on line, and albeit given some leeway because of her ongoing condition. I further accept that her social life has been affected over the years, with the loss of friends, although she has continued to have loyal friends and has been engaged in some social activity, as demonstrated by the Facebook entries which were tendered on behalf of the defendant.
Furthermore, I take account of the expectation that she will improve after the finalisation of this matter, allowing her to pursue greater vocational activities if she so desires.

Damages
385In their written submissions, both parties set out what they consider to be appropriate “pecuniary loss damages” and “pain and suffering damages” within the meaning of the Act. Such submissions have been helpful in some respects. Although there is some agreement as to certain net wage rates and certain amounts of income that the plaintiff has earnt since the incident, there is no agreement, nor, indeed, any direct evidence of what the plaintiff would have been earning, absent her injuries.
386Authority directs that one must make the best that one can in coming to an assessment of damages and, to this end, I have had to form a view generally as to what the plaintiff would have been earning absent the injury suffered by her on 13 July 2012. Furthermore, I have had to form a view as to what the plaintiff has earnt and has been capable of earning since the injury suffered by her on 13 July 2012. Obviously enough, considerations as to her capacity for employment and employability since the date of injury turn on the Court’s findings as to the nature and extent of injuries suffered by her as a result of her fall on 13 July 2012.
Assessment of pecuniary loss damages
387For convenience sake, I have divided the assessment of pecuniary loss damages into the following:
(a)   the loss of earnings from 14 July 2012 to date – which I have taken, for the purpose of convenience to be 30 June 2022, which is in close proximity to the handing down of this Judgment; and
(b)   any loss of earning capacity into the future.
388It is again convenient to break up the loss of earnings claim to the following periods:
(a)   from 14 July 2012, the day after the incident, to 31 December 2014, which would approximate to the day on which the plaintiff would have completed her first degree (absent her injuries) and would have been looking for work consistent with her newfound tertiary qualification. This period of time amounts to 129 weeks. In this respect, it is to be noted that the plaintiff did not complete such a degree until well into 2015 and that was brought about by reducing her subject load over the course of the degree as a result of her claimed pain and concentration issues; and
(b)   from 1 January 2015 to 30 June 2022. This period amounts to seven years and six months or, alternatively, approximately 390 weeks.
389Both parties assumed, correctly in my view, that the plaintiff, absent injury, would have continued working with the defendant while she continued her studies leading to her degree. Accordingly, working on the basis that she would have finished her degree in the normal course of events by December 2014, both parties agree she is entitled to loss of earnings running from 14 July 2012 to 31 December 2014.
390Whereas those acting for the plaintiff assessed this period to be 128 weeks at $300 per week, equalling $38,400, those acting for the defendant assessed such period to be 129 weeks, and that the figure for the net loss of wages and superannuation over that period amounts to $42,183.
391I consider the defendant’s nominated figure to be more likely correct than the figure nominated by those acting for the plaintiff, which figure seemed to be based on an amount set out on the Accident Compensation Claim Form[444] filled out by the plaintiff shortly after the incident – such Claim Form is probably speaking of a gross amount and would unlikely have included any amount for superannuation.
[444]See exhibit 1 found at page 104 DCB
392Accordingly, I do find that the loss of earnings for the period from 14 July 2012 to 31 December 2014 amount to $42,183. That sum must be reduced by $5,588, being the net earnings of the plaintiff when working at the Werribee Racing Club. Accordingly, $42,183 less $5,588 amounts to $36,595, being the net loss of earnings of the plaintiff for the period from 14 July 2012 to 31 December 2014.
393Those acting for the defendant submit that the plaintiff is not entitled to any further loss of earnings, in part due to alleged credit issues and in part the alleged lack of connection between any ongoing alleged limitations after that date and any injuries suffered by her on 13 July 2012 (the date of the incident). As I have already set out in my findings, I do not accept such submission.
394I now turn to that period from 1 January 2015 until 30 June 2022. Those acting for the defendant submit that a reasonable amount for the loss of earnings from January 2015 would be $1,000 net per week. On reading their written submissions, it is unclear whether that sum was peculiar to just loss of earnings or also includes lost superannuation.
395In any event, at first blush I did consider the sum of $1,000 net per week for a graduate journalist for example, may well be generous, but bearing in mind that those acting for the plaintiff have seemingly used that figure through to March 2021, it probably most fairly represents the net loss of earnings and superannuation over the period, taking into account positive contingencies involving, presumably, an increase in income and superannuation, and negative contingencies, such as whether the plaintiff would have started immediately in 2015, or whether there would have been some time before a job was obtained, whether there were breaks in between employments over the years and being off work, for argument sake, like the injury she suffered to her foot in later years.
396If one allows $1,000 per week loss from 1 January 2015 to 30 June 2022, such period amounting to approximately 390 weeks gives rise to a net loss of $390,000.
397Such sum must be reduced by the following:
(a)   The earnings from The Les Twentyman Foundation from her commencement of work with that organisation to 30 June 2020, amounts to $12,721;
(b)   Of course, this does not account for the period from 1 July 2020 to 30 June 2022. For reasons which I advanced in discussing the various findings in this matter, I consider that this period, consisting of 104 weeks, was a period during which the plaintiff could exercise her capacity to a greater extent than fifteen-odd hours per week. I consider that she was capable of doing twenty-five hours, or even more, during this period. Working on the assumption that 15.2 hours generated $450 net (the agreed sum between the parties); a calculation of twenty-five hours per week gives rise to an amount of $740 net. 104 weeks at $740 net per week, amounts to $76,960.
398Accordingly, I consider the plaintiff earnt, or was capable of earning, over the period from 1 July 2020 to 30 June 2022, the sum of $76,960.

399Accordingly, the plaintiff earnt, or was capable of earning, over the period from 1 January 2015 to 30 June 2022, the amount of $89,681, made up by the following earnings:
(a) the sum of $12,721, being the net earnings at The Les Twentyman Foundation to 30 June 2020; and
(b) the sum of $76,960, being the net earnings over the period from 1 July 2020 to 30 June 2022.
400The loss of earnings over the period from 1 January 2015 to 30 June 2022 is $390,000 less the amount of $89,681, being the amount that the plaintiff was earning or capable of earning, amounting to a final figure of $300,319, say $300,000.
401Taking the net loss of earnings for the periods from 14 July 2012 to 31 December 2014 ($36,595) and from 1 January 2015 to 30 June 2022 ($300,000) amounts to $336,595.
402I am unable to make what may be termed a “final order” in relation to pecuniary loss damages involving past loss of earnings. It is clear that the plaintiff received weekly payments of compensation pursuant to the Act and although there is a reference in the plaintiff’s submissions to an amount of $2,000 for Fox v Wood[445] damages, I seemingly do not have details of the gross amount of weekly payments which would have to be deducted from the loss of earnings and indeed, whether the sum of $2,000 is the agreed sum for Fox v Wood damages.
[445](1981) 148 CLR 438
403I would assume these matters are straightforward and I will leave it to the parties to adjust any order for loss of earnings, taking these matters into account.
Loss of earning capacity
404I now turn to the issue of loss of earning capacity.
405On the assumption that I have made that the plaintiff would have been capable of working twenty-five hours a week as at 30 June 2022, generating am amount of $740 net, such sum should be compared to what would the plaintiff be earning if she had remained uninjured. Those acting for the plaintiff submit that the plaintiff would have had a “without injury” earning capacity in excess of $1,100 per week inclusive of superannuation. I consider the sum of $1,100 is reasonable in all of the circumstances.
406Accordingly, based on the plaintiff being able to work twenty-five hours a week as at 30 June 2022 earning $740 net per week, she is suffering a net loss of $360 per week, or $18,720 per year.
407As I have already recorded, I consider the plaintiff will improve after the completion of proceedings and the amelioration of various stressors in her life. Furthermore, I would anticipate that in the future she will be able to do full-time work with her present employer or indeed, alternative work in digital input jobs, consistent with her second degree.
408Accordingly, I allow a further three years into the future, totalling $56,160 discounted to say $55,000 for present payment. In addition, I will allow a further sum of $30,000 based on the principles enunciated in Victorian Stevedoring Pty Ltd v Farlow.[446]
[446][1963] VR 594
409Accordingly, I allow a total sum of $85,000 for loss of earning capacity.
Pain and suffering damages
410In their written submissions, both parties nominated what they respectively considered to be an appropriate amount for pain and suffering damages. Whereas those acting for the defendant nominated a range of $100,000 to $125,000, those acting for the plaintiff nominated a figure “in the magnitude of $350,000”.
411After a consideration of all of the evidence and taking account of the findings that I have made earlier in this Judgment, I consider that an appropriate amount for pain and suffering damages is $225,000.

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[2022] VCC 1035

14 July 2022