Gray v Wagga Wagga City Council

[2021] NSWDC 108

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gray v Wagga Wagga City Council [2021] NSWDC 108

Hearing dates:

15 – 17 March 2021

Date of orders:

07 April 2021

Decision date:

07 April 2021

Jurisdiction:

Civil

Before:

M Sidis ADCJ

Decision:

ORDERS:

(1)   Verdict for the defendant.

(2)   Exhibits are to be retained for 28 days.

(3)   The parties have liberty to apply within 14 days to bring the matter before the Court to deal with the issue of costs. In the absence of any such application, the plaintiff will be ordered to pay the defendant’s costs of the proceedings as agreed or assessed.

Catchwords:

PERSONAL INJURY – impact with automatically opening door – identification of fault – causation – obvious risk – contributory negligence – aggravation of prior condition – assessment.

Legislation Cited:

Civil Liability Act 2002 (NSW) s 5B, 5D and 5E

Cases Cited:

Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434

Category:

Principal judgment

Parties:

Plaintiff: Shannon Gray
Defendant: WAGGA WAGGA CITY COUNCIL

Representation:

Counsel:
Plaintiff: Mr C Hart
Defendant: Ms J Chapman

Solicitors:
Plaintiff: Slater and Gordon Lawyers
Defendant: Moray & Agnew

File Number(s):

2020/00072845

Publication restriction:

nil

Judgment

1. The plaintiff, Shannon Gray, claimed that she suffered injury at Wagga Wagga City Airport on 21 September 2017 when an automatically opening door in the arrivals area of the airport closed and struck her as she passed through an arrivals gate,.

2. She alleged breach by the defendant of its duty of care to her as occupier and controller of the airport.

3. The defendant denied the claim of breach of duty and challenged the plaintiff’s claim to an award of damages.

Principles

4. The Civil Liability Act 2002 (NSW) (“the Act”) provides:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5D General principles 

(1) A determination that negligence caused particular harm comprises the following elements—

(a) that the negligence was a necessary condition of the occurrence of the harm("factual causation"), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ("scope of liability").

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof 

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

Particulars of negligence

5. The statement of claim pleaded the following particulars of negligence:

“8.1   Failing to take reasonable care to inspect, assess and monitor the operation of the doors to control, minimize and/or eliminate the risk of injury to the Plaintiff by the operation of the doors whilst she was standing in the door area (“the risk”)

8.2   Failing to take reasonable care to warn the Plaintiff of the risk, by use of visual signs or audible warnings.

8.3   Failing to observe the presence of the risk, when the Defendants’ own servants had been aware of the presence of the risk prior to the injury.

8.4   Failing to take reasonable care to take precautions so as to provide a safe entry into the terminal by the implementation of routine risk assessments, erecting temporary warning signs erecting permanent signs, signs highlighting the risk of injury and/or leaving the door open during times of disembarkment (sic).”

The Incident

6. The evidence supporting the plaintiff’s claims of breach of duty of care centred upon three areas of concern: a malfunction in the operation of an automatically closing door; a failure to assess the risk of injury associated with the operation of the autolock door and to warn passengers the presence of the risk.

7. The procedure for disembarkation at the airport required passengers to enter the terminal through a gate (Gate 2) on the outside perimeter of the building and to proceed through an airlocked area to a second gate through which entry was gained to the public area of the terminal. The airlock was bounded by two gates to provide security against access by unauthorised persons to the airside area of the airport.

8. Movement through the second gate, that is the gate that allowed entry to the public area of the airport, was facilitated by an electronically operated automatic door (the autolock door) that was designed to open as disembarking passengers approached and to close once they had passed through it.

9. The features that allowed for this operation were described by various of the defendant’s witnesses, in particular, Mr Walsh, the technician who inspected the autolock door both before and after the incident involving the plaintiff. Mr Walsh was at that time employed by Waters Automatic Doors, the contractor engaged by the defendant to undertake quarterly inspections of the autolock door and to attend to its maintenance.

10. There were three such features:

1. A microwave sensor positioned forward of the door that detected passengers as they approached the autolock door and activated it to open to a position away from the moving passenger.

2. Photoelectric cells (“pecs”), installed on the door frame on each side of the passageway at a height of 600 mm from ground level, that emitted a photoelectronic beam from one side to the other. The circuit providing this beam was broken when a person walked past the photoelectric cell causing the autolock door to remain in or retract to its open position.

3. A second set of pecs at a height of 150 mm performing the same function at that height.

11. On 21 September 2017 the plaintiff travelled with her mother and her aunt to Wagga Wagga to attend a family funeral. Her aunt suffered from cerebral palsy, a condition that affected the use of her right leg and caused her to walk with an unconventional gait and to stumble or fall. The plaintiff and her companions were seated towards the front of the aircraft. On arrival at Wagga Wagga they were required to wait until all other passengers on the flight had disembarked, before leaving the aircraft.

12. The plaintiff then assisted her aunt as she descended the stairs to the apron of the airfield and continued to assist her as they walked to the terminal building.

13. The plaintiff entered the airlocked area without incident and continued through it while turned at a slight angle to her right in order to assist her aunt. She said she was unaware of the presence of another door or gate as she proceeded through the airlock towards family members who waited to greet them in the public area of the terminal.

14. As she entered the area autolock door she felt a jarring sensation on the upper part of her left arm. The plaintiff said she initially thought that someone had pushed her until she turned and noticed a door. From there she walked a further one and one half metres to the family group.

15. At that time, the plaintiff found no-one at the airport to whom the incident could be reported. She reported it to Ms Carmel Hilton on the morning of the following Sunday, 24 March 2017, when she returned to the airport for her flight home.

Malfunction

16. Although the evidence supported the plaintiff’s contention that there was a defect in the mechanism of the autolock door, I did not accept the plaintiff’s injury was caused by any malfunction resulting from that defect. My reasons for arriving at this conclusion are as follows.

17. At the time of the incident the pecs at the level of 150 mm above ground were inoperative. It became apparent during the course of the hearing that Waters Automatic Doors detected the failure of those pecs in June 2016. The contractor reported this failure to the defendant after each quarterly inspection from that date and provided quotations to replace the pecs following each inspection. The last of those reports prior to the incident was dated 13 June 2017, followed by a quotation dated 19 July 2017 for the replacement of the pecs at a cost of $395.34.

18. Mr Walsh replaced the pecs on 4 October 2017.

19. The defendant’s evidence concerning its failure to take action to replace the pecs at an earlier date was unsatisfactory. The defendant called Mr Burger, who held the position of Airport Facility Manager from November 2016, and Ms Hilton, the Compliance Officer reporting to Mr Burger at the time of the incident. Ms Hilton was responsible for ensuring compliance with the regulations imposed by the Civil Aviation Safety Authority and the Department of Home Affairs. Both Mr Burger and Ms Hilton denied any knowledge of the failed pecs. They both claimed not to have seen the service reports and quotations of Waters Automatic Doors. Neither witness could point to any particular person employed by the defendant who might have been responsible for taking action to remedy the defect. They were therefore not in a position to explain why the defendant considered it unnecessary, until this incident occurred, to take action to replace the pecs.

20. This pointed to a failure of a safety feature in the autolock door that was designed to detect movement and prevent the door from closing while that movement continued and the formula provided by s 5B of the Act was met. There was a foreseeable risk of not insignificant injury arising from the malfunction of automatically operating doors, hence the requirement for safety features such as the pecs and for regular inspection and maintenance. Those risks were such that a reasonable person in the position of the defendant would reasonably be expected to take precautions against the risk of harm. In this case the precaution available to the defendant was the relatively simple and inexpensive installation of replacement of pecs.

21. There remained, however, the matter of causation.

22. The CCTV footage was not particularly helpful. It was indistinct both as to the persons involved and their positions within the area of the autolock door. However it was possible to observe certain features, namely:

1. The forward motion sensor operated as designed to open the door as the plaintiff and her aunt approached.

2. The plaintiff’s two brothers, who were waiting to greet her, moved forward as she approached.

3. The plaintiff and her aunt moved very slowly towards the public area of the airport and they slowed further as they came closer to the family members.

4. Although they moved very slowly, it did not appear that either the disabled aunt or the plaintiff came to a complete stop when they arrived at or walked through the autolock door.

5. Their foot movements were of a slow, stepping nature so that there was no movement in the nature of a foot being thrown forward into the area below the pecs fitted at 600 mm.

6. The plaintiff had already entered into the area of the autolock door when it started to close, striking her and immediately retracting.

23. The plaintiff’s contention was that the failure of the operation of the lower level pecs allowed a foot that was thrown forward by a passenger to remain undetected by the upper level pecs. The photoelectronic beam would in that case remain unbroken and the autolock door would close.

24. I rejected this contention as the cause of the incident because the CCTV footage demonstrated that the foot movements of the plaintiff and her aunt as they moved through the autolock door were not of a forward thrusting nature.

25. Further, the evidence of the defendant’s witnesses suggested that this was an improbable scenario.

26. Mr Walsh, the technician, said that the set of pecs placed at 150 mm above ground level were a failsafe feature of the doors. While he accepted that a moving foot thrown forward might proceed beneath the pecs at 600 mm, he noted that the foot would be followed rapidly by the attached leg to break the circuit at that level. This was the experience of Mr Burger when he undertook his own inspection of the operation of the autolock door after he was told of the incident. Mr Walsh was satisfied that the failed pecs did not represent a hazard to persons passing through the autolock door.

27. The defendant proposed that the incident occurred through the fault of the plaintiff when she stopped moving at the point where the autolock door operated so that the photoelectronic beams reconnected, causing the door to start to close. This proposition was based on the conclusion reported by Ms Hilton in the incident report (Exhibit A.91) after she viewed CCTV footage.

28. I rejected this contention as the cause of the incident. The plaintiff denied that she stopped moving before she reached her family group on the other side of the autolock door and the CCTV footage supported this aspect of her evidence.

29. No other explanation was provided for why the autolock door started to close as the plaintiff made her way through it, albeit at a very slow pace, something that in the ordinary course of events should not happen.

30. Neither party offered expert opinion from a mechanical engineer or a person qualified in airport management on whether, regardless of the actions of passengers, the absence of operative pecs at lower level would otherwise have caused the autolock door to close.

31. The only witness who had any experience with the operation of the autolock door was Mr Walsh. Although he held a number of trade certificates, Mr Walsh had been trained on the job by another technician to service automatic doors. He had no qualifications in mechanical engineering and he made no claim to expertise in that field.

32. The defendant acknowledged its obligation to comply with the relevant standards of Australian Standard 5007 - 2007 (“AS 5007-2007”) relating to Powered doors for pedestrian access and egress and with the regulations issued by the Civil Aviation Safety Authority and the Department of Home Affairs in the operation of the airport, including those that required the installation of pecs and regular maintenance and service of all of the automatically closing doors at the airport. There was no accompanying expert evidence that applied any of their provisions to any part of the operation of the autolock door.

33. With the exception of the failure to replace the non-functioning lower level pecs, there was no evidence that indicated any failure on the part of the defendant to comply with this Standard or that any breach of the Standard caused the autolock door to malfunction and strike the plaintiff.

Assessment of risk

34. I did not accept that the plaintiff’s injury was caused by the defendant’s failure to assess the risk of injury to the plaintiff while she was “standing” in the doorway or its failure to address a known risk. Although the term “standing” was used in Particular 8.1, for the purposes of my reasons I have addressed this Particular as if it related to the plaintiff’s slow movement through the autolock doorway. My reasons are as follows.

35. The defendant produced reports and invoices of Waters Automatic Doors that established that maintenance inspections, that encompassed the requirements for inspection specified in AS 5007 – 2007, were carried out at intervals that complied with that Standard.

36. The defendant’s Information and Management Co-ordinator undertook searches of its files and data bases for records of incidents or injuries involving the doors at the airport, records concerning maintenance and Waters Automatic Doors and the incident involving the plaintiff. She located the maintenance records and the incident report but nothing relating to any earlier incidents involving the autolock door.

37. Mr Burger said that the autolock door was installed in 2011 in response to the requirement for additional airport security. He said that 200,000 passengers used the airport each year, estimating that, of those, 100,000 were arriving passengers.

38. Mr Burger also gave evidence of the system adopted through which the Aerodrome Reporting Officer (ARO) was charged with the responsibility to undertake a physical inspection of all airport functions each morning before the airport commenced operations for the day. The role of ARO was filled by the person rostered into those duties from time to time. Those persons included himself and Ms Hilton. Those check were undertaken by another staff member on the morning of 21 September 2017.

39. The checks undertaken by the ARO included the functioning of all of the automatically opening doors at the airport. These were done by unlocking the doors to allow them to open and close both on entry and exit from the terminal and by checking that safety features, such as the sensors, were operating.

40. In the absence of a record of prior incident involving impact between the autolock door and a passing passenger, I concluded that the defendant appropriately managed what appeared to be an insignificant risk through a regular and comprehensive maintenance routine that complied with AS 5007-2007 and daily checks to confirm the continued functioning of the autolock door and its safety features.

Warning Sign

41. I did not accept that the plaintiff’s injury was caused by the defendant’s failure to provide warning signs or signs alerting the plaintiff to the presence of an automatically closing door.

42. The plaintiff said she was unaware of the presence of the autolock door until after it struck her. Asked to explain why she had not seen it, she said she was confused and dazed by the incident and remembered little of it except that the autolock door struck her unexpectedly.

43. Shortly after the incident Ms Hilton prepared and placed a sign (Exhibit A2) on the fixed section of the autolock door that read:

“CAUTION

AUTOMATIC DOOR

DO NOT STOP IN DOORWAY

PLEASE CONTINUE THROUGH

TO TERMINAL”

44. The CCTV footage demonstrated that the autolock door opened as the plaintiff approached it and that it should have been visible to her. The explanations for her failure to see it, in addition to shock, included distraction caused by her need to attend to her aunt or by her sight of waiting family members.

45. The sign erected by Ms Hilton after the incident warned against “stopping” within the opening of the autolock door. I have accepted the plaintiff’s evidence that she did not stop. A warning of this nature, therefore, would not have assisted her.

46. Nor did I accept that inattention through distraction could be blamed for the incident. The plaintiff had already walked into the passageway provided by the door before it moved and struck her. Had the plaintiff seen the door or a warning of its presence, in the circumstances in which she was placed, she had no option but to proceed through it and the action that she might have taken to avoid the impact remained obscure.

47. In Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434 Gleeson CJ said at [16]:

“In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated.”

48. I have already noted the incident free record of the operation of the autolock door and the defendant’s system of inspection, maintenance and daily operative checks. Taking this evidence into account, I was satisfied that, at the time of the incident involving the plaintiff, the risk alleged in this case was not such that a warning was warranted.

Conclusion

49. My finding on the issue of liability is that the plaintiff has not fulfilled the onus of establishing that the defendant was in breach of its duty of care to her in a manner that was causative of her injury.

50. There will be a verdict for the defendant.

51. I proceeded to provide my reasons in respect of the other issues in the case in the event that the matter proceeds further.

Obvious risk and Contributory Negligence

52. I did not accept the defendant’s contention that, in the circumstances of this case, considerations of obvious risk or contributory negligence arose.

53. The plaintiff’s failure either to see or to recollect seeing the autolock door was relied upon to claim that she disregarded the risk that the autolock door might close if she did not take care for her own safety while passing through it. It was claimed that she failed to take precautions against an obvious risk and, for the same reasons, that she was guilty of contributory negligence.

54. This aspect of the defence depended upon proof by the defendant that a reasonable person in the plaintiff’s position, even if aware of the presence of the autolock door, should not reasonably expect the door to remain open to allow passage through it. It was inconsistent with the evidence of the defendant’s witnesses who maintained that the door, fitted with sensors, operated safely and that it had no apprehension of a risk because, although used by thousands of passengers over a number of years, there had been no reported incidents or injuries of the nature experienced by the plaintiff.

55. The defendant did not elaborate on the precautions that the plaintiff ought reasonably to have taken in order to meet the requirement that she take care for her own safety. She had no means of controlling the operation of a door that was designed to open and remain open to allow her passage through it.

56. I did not accept that passage through an automatically opening door presented an obvious risk or that, had she been aware of the presence of the door, there was any conduct on the part of the plaintiff and represented contributory negligence.

Damages

Background

57. The plaintiff was 44 years old at the time of the incident. She is now aged 47. She lived at Coffs Harbour with her husband, Samuel Gray.

58. The plaintiff said she enjoyed an active social life prior to the incident that included dancing, walking, going to the beach and paddle boarding. Mr Gray added ziplining and sailing to the plaintiff’s pre-incident activities.

59. In about 2012 or 2013 the plaintiff developed a condition in her lower back that caused her left sided sciatic pain. Attempts to treat the condition conservatively failed and the plaintiff’s long term general practitioner, Dr Ruthnam, referred her to Professor Stoodley, neurologist, when the pain was such that the plaintiff struggled to function. She ceased social activities but she continued to work in retail with the assistance of an accommodating employer.

60. Professor Stoodley reported on 30 September 2014 (Exhibit A.155) that a CT scan showed a disc protrusion at L4/5 compressing the L5 nerve root. He recommended surgery which he performed on 13 November 2014. The surgery was successful and the plaintiff returned to work after a three week recovery period. She said that with physiotherapy and exercise she rebuilt her core strength and resumed her social activities as well as her intimate relationships without the need for medication.

61. At the time of the surgery the plaintiff worked in a surf shop where she was initially employed as a shop assistant, progressing to the position of store manager. The plaintiff said she was able to return to this employment full time undertaking all of her duties, some of which involved lifting and moving heavy boxes of stock. She said she modified the way in which she carried out some of her duties in order to protect her back from further injury.

The Consequences of the Incident

62. The plaintiff said that pain developed intermittently in the 24 hour period after the incident. She described shooting nerve-like pain from her left ear over the left side of her neck. She also felt intermittent pain in the left side of her lower back extending over her hip and gluteal muscles, with sciatica in her left leg.

63. The plaintiff consulted Dr Ruthnam of 25 September 2017 with complaints of neck, back and sciatic pain. The sciatic pain, she said, differed from that which she experienced prior to surgery in 2014. On this occasion she described a feeling of heavy numbness in the left leg.

64. Dr Ruthnam treated the plaintiff with pain relief and recommended physiotherapy that the plaintiff said she was unable to afford. Instead she continued with exercises at home and massage.

65. A CT scan in October 2017 reported the abnormality at L4/5. The plaintiff consulted Professor Stoodley in June 2018. He ordered an MRI scan of the plaintiff’s lumbar spine that reported (Exhibit A.163) a small recurrent disc protrusion at L4/5 impinging on the left L5 nerve root. An attempt to provide relief by way of steroid injection was unsuccessful. The plaintiff has not consulted Professor Stoodley since that date, stating that she would do so only if her pain increased to the point where she decided to undergo further surgery.

66. At the time of the hearing, the plaintiff’s major areas of complaint centred upon her continuing back, left leg and shoulder pain. The plaintiff described her current symptoms as follows:

1. She suffered from a stiff neck with no regular pain.

2. She had considerable pain in her left shoulder described as a stabbing pain extending from her shoulder into her arm. This pain was aggravated by long periods of sitting or when she was stressed. It was particularly severe during lengthy car journeys.

3. She suffered from an intermittent dull ache in the low back that was aggravated by bending, twisting or lifting heavy items.

4. She continued to suffer from a dull heavy pain and numbness in her left leg.

5. Her relationship with her husband, generally and in their intimacy, had diminished.

6. She suffered emotionally because of her increased dependency on others to the point where her consumption of alcohol increased to unhealthy levels.

7. She ceased all activities, except that she continued to walk her dog;

8. She depended on paid domestic assistance; and

9. Her income earning capacity was limited.

67. The plaintiff continued to treat her symptoms conservatively using Lyrica or Norspan patches and exercises for pain relief.

68. The shoulder pain was of particular concern when the plaintiff was required to undertake long car journeys. The plaintiff said that, when driving, the pain in her shoulder developed after about 20 minutes and developed to the point where, after about 2 to 2.5 hours, she was required to stop, stretch and take Lyrica for pain relief.

69. Long journeys were a regular feature of her life because Mr Gray was in employment that required him to relocate, sometimes for many months at a time, to undertake works on airports throughout Australia. The plaintiff travelled to join him at regular intervals. At the time of the hearing he was located at an air force base near Perth in Western Australia. When he relocated to Perth, the plaintiff travelled with him by car, a journey that, because of the need for frequent rests, took three weeks.

70. The defendant challenged the plaintiff’s complaints on two bases. It suggested that she had exaggerated the extent to which the closing autolock door impacted her at the time of the incident. The defendant took issue with the plaintiff’s use of the word “slammed” when describing its force.

71. Regardless of the terminology used, I did not agree that there was exaggeration on the part of the plaintiff. The CCTV footage demonstrated that the autolock door opened and closed swiftly in order to fulfill the purpose described in the incident report: “it is a security door designed to stop unauthorised access airside.”

72. The CCTV footage also demonstrated that the door struck the plaintiff with sufficient force to push her to her right. The plaintiff said only the top half of her body was moved by the impact. Her description of the impact as “jarring” was consistent with the movement that was demonstrated on the recorded footage.

73. The further challenge brought by the defendant was directed at the causative connection between the incident and the symptoms that the plaintiff suffered in her left shoulder.

74. Dr Ruthnam’s recorded that the plaintiff complained to him of back, neck and shoulder pain when she consulted him on 25 September 2017. There was no record of further complaint of shoulder pain until 11 December 2018 (Exhibit A.178). This record read: “Left shoulder pain – door hit her – did long distance driving and left shoulder pain relapsed. Painful spot posterior deltoid.”

75. Although Professor Stoodley reported in June 2018 (Exhibit A.164) that the plaintiff’s neck pain had settled, the clear inference available from Dr Ruthnam’s record was that he related the symptoms reported to him in December 2018 to the incident involving the autolock door and that he regarded the pain that had developed as a relapse in the plaintiff’s condition.

76. Dr Ruthnam was not required to elaborate on his opinion in cross examination and I saw no reason to reject this inference.

77. The defendant did not otherwise attack the plaintiff’s credit and her reported symptoms were supported by the evidence of Mr Gray and by medical opinion.

78. Dr Ruthnam (Exhibit A.114) was of the opinion that the plaintiff suffered from shoulder and sciatic pain as a result of the incident. He reported that neck pain that was present immediately after the incident had settled. He also reported a condition of anxiety/depression for which counselling might be required.

79. Neurologists Dr Spittaler (Exhibit A.94) and Dr Rogers (Exhibit A.98) examined the plaintiff In February 2020 and September 2020 respectively to provide opinion regarding her back and left leg symptoms. They agreed both as to causation and consequences, namely an aggravation of the prior injury at the L4/5 level of the plaintiff’s spine. Their examinations confirmed that her complaint of sciatica in the left leg was genuine and unlikely to improve. They confirmed that her treatment had been reasonable and that it was reasonable that it continue conservatively unless the sciatic symptoms increased, when surgery might be required.

80. These experts were requested to meet in conclave to view the CCTV footage. They reported (Exhibit E) that they were unable to identify the plaintiff from the CCTV footage and therefore could not comment upon it. In all other respects they were in agreement.

81. My findings were:

1. The impact of the autolock door on the plaintiff’s left upper arm was of sufficient severity to cause the injuries of which she complained.

2. Those injuries were:

1. Soft tissue injury to the neck from which she continued to suffer symptoms of stiffness;

2. Tendonitis or bursitis in the left shoulder, the symptoms from which persist and were significant;

3. Aggravation of the pre-existing condition of the plaintiff’s spine at L4/5 leading to sciatica in the left leg, the symptoms from which persisted and were significant.

3. There was insufficient expert evidence to support a finding of psychiatric injury.

Assessment

Non-economic loss

82. The plaintiff has suffered from significant symptoms in her back and leg from the time of the incident. Her shoulder pain receded but revived in 2018. The medical evidence indicated that her symptoms will be long term with the prospect that further back surgery might be required at some future date.

83. Aside from surgery, her treatment will remain conservative with reliance upon pain relief and exercise. There was the option of physiotherapy or massage if the plaintiff had the funds with which to pay for such treatment. Although the evidence did not support a finding of psychiatric injury, I accepted that the effect of chronic symptoms of this nature on the plaintiff’s enjoyment of life should be taken into account in assessing her non-economic loss.

84. I assessed this loss at 28% of a most extreme case and awarded the sum of $96,000 on this head of damage.

Income loss

85. The claim for income loss was limited to a buffer for future incapacity based on the following evidence.

86. The plaintiff left her employment in the surf shop in 2014 or 2015 and worked in real estate as a sales associate. In order to concentrate on her physical and mental health the plaintiff took a three month break from employment in June 2017. She became bored and returned to casual work at the surf shop, working in retail on the shop floor, and to casual administrative work with a food wholesaler, answering telephones and taking orders. Between these two jobs she worked 21 to 24 hours per week and earned between $600 and $700.

87. The plaintiff said that after the incident she could no longer continue with her work at the surf shop, finding the requirement to remain on her feet for a whole day, something she had been capable of prior to the incident, to be too demanding. She continued to work 20 hours per week with the food wholesaler as an accounts receivable clerk and working from home.

88. Dr Spittaler and Dr Rogers agreed that the plaintiff was capable of sedentary office work of this nature. Dr Spittaler thought she was capable of working full time in her current occupation but not capable of work that involved lifting or twisting.

89. I noted that the plaintiff voluntarily limited her working hours and that, if she chose to do so, she was capable of full time sedentary administrative work. Taking account of s13 of the Act, I considered that the plaintiff’s most likely future prospects mirrored those of the past and that she would have continued to have available to her the option of working in the more physically demanding retail area or in administrative work. She is now limited to exercising only one of those options.

90. I determined that this limitation warranted a modest buffer to cover the remaining 30 years of her working life and awarded her the sum of $50,000.

Domestic Assistance

91. The plaintiff lived in a two storey, 3 bedroomed house in Coffs Harbour. She claimed that since the incident she was dependent upon the services of a cleaner for four hours a week to undertake housework that involved bending, lifting and twisting.

92. The plaintiff conceded that prior to the incident she had engaged a cleaner to assist with her housework, in part for the purpose of protecting her back from further injury. She claimed that as a consequence of her injuries the assistance of a cleaner was no longer optional on her part but a matter of necessity to undertake the heavier domestic and gardening tasks that she could no longer perform.

93. In this respect the plaintiff was supported by Dr Spittaler and Dr Rogers.

94. In the absence of evidence to support a claim for paid assistance to the date of the hearing, no claim for reimbursement was made. I considered the claim of two hours per week at the rate of $40 per hour to be reasonable and I awarded the plaintiff $72,800 on this head of damage.

Medical expenses

95. Past expenses were agreed in the sum of $4,499.53.

96. For the future, the plaintiff claimed the cost of ongoing consultations with her general practitioner, and of medication, physiotherapy and travel.

97. Although the plaintiff stated that she would be more inclined to undertake physiotherapy if she had the funds to do so, I considered that therapy of this nature would likely be intermittent and not of a continuous lifelong nature as claimed. The evidence supported the remaining claims for future treatment.

98. I allowed the amount of $40,000 for future medical expenses.

Summary

99. I assessed the plaintiff’s claim as follows:

Non-economic loss                     $96,000.00

Future income loss  50,000.00

Future domestic care                    72,800.00

Past medical expenses                   4,499.53

Future medical expenses              40,000.00

$263,299.53

ORDERS:

1. Verdict for the defendant.

2. Exhibits are to be retained for 28 days.

3. The parties have liberty to apply within 14 days to bring the matter before the Court to deal with the issue of costs. In the absence of any such application, the plaintiff will be ordered to pay the defendant’s costs of the proceedings as agreed or assessed.

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Amendments

08 April 2021 - Parties from the cover sheet field has been changed.

Decision last updated: 08 April 2021