Hansford v Gondoline Pty Ltd - [2001] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HANSFORD -v- GONDOLINE PTY LTD [2001] WADC 152

CORAM: VIOL DCJ

HEARD: 22 & 23 MAY 2001

DELIVERED : 25 JUNE 2001

FILE NO/S: CIV 2948 of 1999

BETWEEN: JANICE ROSE HANSFORD
Plaintiff
AND
GONDOLINE PTY LTD
Defendant

Catchwords:

Negligence - Breach of statutory duty - Whether fall on path caused by protruding paver - Assessment of damages for injuries including fractured patella - Turns on own facts

Legislation:

Occupier's Liability Act 1995 (WA)

Result:

Defendant found to be negligent and in breach of statutory duty; plaintiff awarded general damages $50,000; gratuitous services $22,169; interest on past gratuitous services $3,214; special damages $10,822.64; interest on special damages $1,705; total $87,911.00

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Hodges v Frost 53 ALR 373
Newman v Nugent (1995) 12 WAR 119

Case(s) also cited:

Australian Capital Territory v Badcock [2000] 169 ALR 585
Griffiths v Kerkemeyer (1977) 15 ALR 387
Jones v Barlett (2000) 176 ALR 137
Maiward & Doyle [1983] WAR 210
McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Stannus v Graham (1994) A Tort Rep 81-293
Wyong Shire Council v Shirt 29 ALR 217

VIOL DCJ: The plaintiff who was born on 5 November 1935 and is now 65 years of age is a retired pensioner. On 27 August 1996, the plaintiff was injured when she fell down on a path leading from the shop of the Lavender & Berry Farm in Pemberton to the carpark below the shop area. The business is owned by the defendant.
The plaintiff has alleged that the accident was due to the negligence of the defendant and such negligence is denied.
The relevant fact giving rise to the claim in negligence is that "whilst carrying (some) items in her hands and walking down a path in the premises, her foot struck a protruding paver on the path causing her to fall to the ground". The particulars of negligence alleged are as follows:
"3.2PARTICULARS OF NEGLIGENCE
(a)Failing to ensure that the walkway, ramp or landing was constructed in compliance with Australian Standard 1428 1 ‑ 1998 Design for Access & Mobility Part 1 ‑ General Requirements for Access - Building.
(b)Failing to ensure that there were no protruding pavers over which a pedestrian might trip.
(c)Failing to ensure that grass tufts emerging between pavers would not displace them and cause them to protrude in a way that might cause a pedestrian to trip.
(d)Failing to take any or any adequate precaution by way of periodic examination, inspection or otherwise to ensure that the brick paved path was maintained in a reasonably safe condition, free of obstruction and was not in a condition that was likely to cause a risk of injury.
(e)Permitting the Plaintiff to walk along or otherwise make use of the path in circumstances where the Defendant new or ought to have known or unsafe or dangers to do so.
(f)Failing to ensure that the pathway was free of protruding pavers when the gradient at the material section was such that a person who tripped would find difficulty in righting themselves."
There is a further allegation that the accident was caused by a breach by the defendant of its statutory duty under s 5 of the Occupier's Liability Act 1995 (WA) ("the Act"). The particulars of the breach of statutory duty are identical to those breaches of common law negligence alleged.
The plaintiff suffered several serious injuries including a comminuted fracture of the right patella, a fractured left fourth rib and a rotator cuff injury to the left shoulder. Further injuries are alleged in par 5 of the Statement of Claim. The treatment and sequelae of the accident are set out in par 6 and par 7 of the Statement of Claim respectively. The allegations as to the pain, suffering and loss of enjoyment of life suffered by the plaintiff, and certain gratuitous services said to have been rendered by the plaintiff's de facto partner Ronald Richardson are set out in par 9 of the Statement of Claim. Future medical and rehabilitation expenses are claimed along with special damages.
As already stated, the defendant has denied any negligence in this matter and thus denies any liability for the damages claimed by the plaintiff.
It is admitted by the defendant that the plaintiff visited the premises on 27 August 1996, that the defendant was the owner of the premises and that the plaintiff fell and sustained injuries at the relevant time.
As to the alleged breaches of the Australian standards, it is the case that these relate to the obligations of an occupier in relation to people with a disability and, therefore, such allegations are irrelevant.
The fundamental allegation by the plaintiff was that in the path there was a protruding paver, either standing out above the other pavers or, alternatively, created as a result of a paver dropping in relation to the surrounding pavers and thus creating a ledge capable of being caught by a walker's foot. It is also said that because there was a gradient at a greater angle than the other general gradient on the path in the area of the protruding paver, this would have made it difficult for anyone who tripped on the paver to right themselves and thus exacerbate the effect of tripping on the protruding paver.
As the case was proceeded, the four main issues for determination as to liability were whether there was a protruding paver as described, whether this was in the vicinity of any increase in gradient, whether the plaintiff's foot struck this paver and, finally, whether or not, if the paver was protruding, it represented a failure on the part of the owner (occupier) to maintain the path in a safe condition, bearing in mind the relevant and applicable law.
I will deal with these matters in turn.
The plaintiff said that, prior to the accident, she had led a very active physical life and retired from work in 1995. It was decided that from May 1996, she and her de facto husband Ron Richardson would take a 4WD and caravan around Australia. This they did for more than a year. The trip involved a considerable amount of hiking, climbing hills and/or mountains, fossicking for semi‑precious stones and otherwise undertaking a considerable amount of walking and other physical activities. The plaintiff was, therefore, a fit and active person. At the time of the accident, she was wearing hiking boots.
On the day of the accident, they parked their vehicle at the carpark at the bottom of the area and walked up the path to the shop. They bought some items including some bottles of honey and were on their way back walking down the path to the car. As the plaintiff walked down and at a spot near some agapanthus, some several metres from the shop, her right foot hit something solid, she began falling and she tried to right herself but because of the slope, kept stumbling and landed further down. Her hands were full of items she had purchased. Her right knee struck the path and also her left shoulder. She heard a loud crack and felt, as she described it, "unbelievable" pain. Mr Richardson tried to pick her up but she screamed at the time and a nurse arrived and she was given some immediate comfort and, ultimately, went to the Pemberton Hospital where she was x‑rayed and given Pethidine for the pain. In cross‑examination, the plaintiff said that despite the fact that the pain was unbelievable and to some degree the events after the accident were a blur, she knew what was going on around her. She said that she did not see Mr Perkins (who is a director of the defendant and runs the shop and farm) at the accident scene although she did see his shop assistant, Ms Helen Waldron. She denied that she told Mr Perkins that it was her own fault that she fell over. The plaintiff said that the slope was enough to make her lose balance after she tripped and went down - she had a sensation of going downhill after she tripped.
The plaintiff also gave evidence as to her disabilities and other relevant matters - these will be dealt with in due course. My impression of the plaintiff was that she was a very down to earth person who had made every effort to rehabilitate herself despite considerably serious injuries. She gave her evidence in a straight forward manner and there was no part of her evidence which suggested that she was otherwise than honest and reliable.
Mr Ronald Richardson confirmed the plaintiff's evidence as to the trip that they undertook. Mr Richardson had been a coach driver for many years and had driven around Australia three or four times in the course of that occupation. He was a very good historian and, in my view, accurate. He said that as the plaintiff walked down the path, he was near her and the gradient became steeper. At that point, the plaintiff tripped and staggered forward and fell. She moved some 12 feet or so. He gave evidence as to the plaintiff's extremely distressed and painful condition immediately after the accident.
After the accident, Mr Richardson walked back up the path with Diane Campbell and found the precise spot where the plaintiff had tripped. He could see that one paver had sunk down, leaving a ledge of some half an inch or more which, of course, was the edge of another paver. He denied that a man from the shop (Mr Perkins) arrived at the scene. In cross‑examination, he confirmed that the plaintiff was crying and complaining about the pain immediately the accident occurred.
Mr Richardson struck me as a straight forward, practical person who, as with the plaintiff, was apparently reliable and honest - his character can be further assessed by the consistent care and attention he has given the plaintiff since the accident to the present day - that will be dealt with in due course.
Mr Mieczyslaw John Dryka is an architect. He confirmed that there was a increased gradient in the area where the plaintiff said the accident occurred - he took some measurements and suggested that the gradient was one in five - his measurement was over some 10 feet and said that there was a drop of some two feet. This, of course, is different to the gradients measured by Paul Hoffman the witness for the defendant, however, it is clear from the evidence of both Mr Dryka and Mr Paul Hoffman and the photographs that in the area near the agapanthus, there is an increase in gradient relative to the other parts of the path.
Ms Diane Campbell knew the plaintiff and was visiting the farm with the plaintiff and Mr Richardson on the day in question. She was walking down the hill with the plaintiff when she stumbled and fell. Ms Campbell recalled the plaintiff saying that she had tripped on a paver. Ms Campbell went back up the path and, with Mr Richardson, saw immediately what the plaintiff had tripped over, namely, a paver which was protruding some half inch to one inch. In cross‑examination, Ms Campbell described the plaintiff as being in incredible pain and was very distressed. Ms Campbell was apparently an honest person and appeared to have a reasonable memory of the incident.
Mr John Henry Towie is a licensed surveyor and measured the gradient of the path generally. The total drop from the shop to the bottom of the path is some three metres and this gradient in the relevant area led, obviously, to a different calculation but, nevertheless, shows that there was an increased gradient at the relevant place.
Ms Helen Waldron was, at the relevant time, a shop assistant employed by the defendant. Her evidence was that the area generally was well maintained and she had never observed any problem with the path and the brick paving in it. She was working in the kitchen when the accident occurred and, having been advised that someone had fallen over, went down the path and found the plaintiff lying on the path with her knee bone poking out. She saw some photographs, Exhibits 4B, C and D and drew some "stick people" roughly around where the plaintiff was lying. This position was further down the path than the position pointed out by witnesses for the plaintiff. The latter's estimate is considered to be more accurate, particularly on the basis that they were eyewitnesses to the incident. The plaintiff, she said, was in a lot of pain. She went back and phoned for an ambulance. She looked closely, she said, at the path. She said that the other woman, namely, Ms Campbell, kept saying "she couldn't see what the plaintiff had tripped on". This suggestion was never put to the plaintiff, Mr Richardson or Ms Campbell in cross‑examination. It was Ms Waldron's evidence that she could not see anything upon which the plaintiff could have tripped.
In cross‑examination, Ms Waldron described how she checked the whole area and looked at the path the whole way to the shop. I found it difficult to understand why this was so when the position of the accident was clear, apparently, to her. She said that there was never any grass growing on the edges or encroaching on the path that the patch was always looked after and was not slippery. She was "positive" as to these matters.
Her evidence should be contrasted to the photographs which, taken several months after the accident, shows that there was grass growing in a number of areas between the pavers. Ms Waldron was, on the face of it, an honest witness, however, I got the impression that there was a degree of loyalty to her previous employer involved in the giving of her evidence - there are some aspects of her evidence which suggest that she is not wholly reliable - some of those matters have already been commented on. Further, her evidence must be looked at in light of my views as to the credibility of the plaintiff and her witnesses.
Mr Robert Ian Perkins is a director of the defendant and has a long history in hospitality. On the day of the accident, he was in the kitchen when Ms Waldron told him that there had been an accident and that, however, everything was under control. He decided to go down to the scene. He saw the plaintiff lying on the path and asked her, he said, whether she was okay. The plaintiff, according to Mr Perkins said "I'm fine - it's my fault, I'm fine". Further on in his evidence, Mr Perkins reported the plaintiff as saying "I'm absolutely (my underlining) fine". It seems, according to Mr Perkins, that he did not know it was a serious injury and then went back to the shop. At that point, according to Mr Perkins, he was not concerned about the matter.
In the light of the uncontradicted evidence that the plaintiff had suffered an extremely serious and painful injury and was in a distressed and extremely painful condition, I am unable to accept the evidence of Mr Perkins as to the plaintiff having an apparently normal conversation with him and saying that she was "fine" or "absolutely fine". Further, these matters were never put to the plaintiff in cross‑examination. The plaintiff had denied in cross‑examination that she said that it was her fault and, in fact, denied that Mr Perkins came to the scene at all. Ms Waldron did not corroborate the evidence of Mr Perkins as to him arriving at the scene. No other person corroborates his evidence in that regard.
The next day, according to Mr Perkins, he became a bit concerned because Mr Richardson came to the shop and advised him that the plaintiff had been taken to Royal Perth Hospital and had been operated on, and that he was back because he had broken a jar of honey in the incident and wanted it replaced. Mr Richardson advised Mr Perkins that he was going to drive back to Perth that day. Mr Perkins told me he was "disgusted" by what he thought was irresponsibility in terms of driving on the part of Mr Richardson. I got the distinct impression that Mr Perkins was intent on disparaging the evidence of Mr Richardson, and the plaintiff's case generally.
Mr Perkins said that he had always properly cared for the path, that the path had not been changed in any way after the accident and that many people used the pathway, including older people. He checked the path each day and had regularly used "Round Up" to kill any grass growing in the edges within the pavers.
In cross‑examination, Mr Perkins said that the "Round Up" was used every three months - that it killed the grass, surprisingly, within 24 hours. He would spend approximately half an hour each day checking the path. He was shown photographs taken in October 1996 and November 1996 ie. one and two months after the accident, which clearly showed grass growing between the pavers. He said there was a possibility that, in fact, he had sprayed it the day after the photos were taken in November 1996.
The evidence suggests to me that the maintenance of the path was far more lax than the glowing picture painted by Mr Perkins.
Mr Perkins said that he spoke directly to the plaintiff at the scene of the accident and she did not indicate that she was in any pain nor did he notice if her knee was protruding. I am unable to accept this evidence. It is clear that the plaintiff was in extreme pain and making this obvious, not surprisingly, to people in the area - it would be most unlikely that the Pemberton Hospital would have given her Pethidine injections if she was not in extreme pain as a result of the injury.
Mr Perkins was not a witness upon whose evidence I could rely - indeed, I had reason to doubt his honesty. I prefer the evidence of the plaintiff and her witnesses as to the accident itself.
Mr Denis Ivor Shiell is a loss adjuster who visited the scene some two months after the accident and saw no protruding blocks and thought there was a fairly even slope - he said there was no sign of any bricks being re‑laid. Mr Shiell was an honest witness but of little assistance to the defendant's case. There is a generally even slope, however, it is clear that the slope is greater in the area of the accident. He saw the area some two months after the accident and, thus, was unable to give any evidence as to the condition of the scene at the time of the accident itself. It is also interesting that when he made his enquiries, he was directed to Ms Waldron to give him instructions as to the scene itself and where the plaintiff was situated after her fall. There was apparently no basis at the time upon which Mr Perkins elected to assist him or was found by Mr Shiell to be able to assist him - this adds some weight to the conclusion that Mr Perkins did not go to the scene just after the accident.
Mr Paul Hoffman is an architect and made certain calculations as to gradients. As previously said, his gradient calculation in an area near where the accident occurred was less than that suggested by Mr Dryka, however, Mr Hoffman used a calculation based on a lesser horizontal distance and, once again, it is clear that there was a gradient of reasonable proportions where the accident occurred.
Upon consideration of the evidence, I have no hesitation in accepting that of the plaintiff's witnesses as to the accident itself. The plaintiff's foot, I find, hit something solid as she walked down the path - she was an experienced walker, wearing walking boots. There is no evidence that she slipped or in some way lost her footing. Both Mr Richardson and Ms Campbell, whose evidence I accept, found a paver protruding from the path in the area where the plaintiff fell - their inspection was in the proximate area of the fall and immediate. I have already given reasons why I am not prepared to rely on the evidence of Ms Waldron. Similarly, I do not accept the evidence of Mr Perkins.
The protruding paver was in a portion on the path which would have been visible upon proper inspection. For reasons already given, I do not accept that Mr Perkins inspected the path as regularly as he suggested, further, in the course of any inspections carried out by Mr Perkins, either he failed to notice grass growing between the pavers, or if he did, was tardy in the removal thereof. It is not possible on the evidence to conclude that grass tufts caused pavers to protrude, however, the fact that the grass was growing between the pavers suggests that the path was not being maintained as well and as regularly as Mr Perkins suggested.

There is evidence to support the conclusion that Mr Perkins did not inspect the path with enough care - had he done so, it is clear that the protruding paver would have been seen by him.
The path, on the day of the accident was, in my view, unsafe - its condition was such that there was a foreseeable risk of injury to users of the path especially in a situation where the path to the carpark was sloping and involved an increased slope around the area where the paver protruded.
It is clear that Mr Perkins was aware of the need to ensure that the path was safe, however, as already found by me, his inspections were not adequate - had they been as thorough as required in the circumstances, he would have seen the protruding paver and taken steps to ensure that the paver was level and not protruding above the general surface of the path. Thus although he may not have known of the state of the path, his occupation of the path required him to be aware of any risks to users and to correct those risks.
The defendant, in my view, did not take sufficient steps to avoid risk of injury to users of the path. The inspections and spraying, I have found, were not adequate. The defendant thus failed to take sufficient steps to avoid the risk of injury to the users of the path, and in particular, the plaintiff.
Thus, I find, the allegations of negligence in pars 3.2(b), (d), (e) and (f) have been made out. As to par 3.2(c), although there was a failure as alleged, I am unable to find that the protruding paver was caused by the grass growing between the pavers.
I also find that the defendant has breached its statutory duty under s 5 of the Act, the same finding as to the allegations of negligence are made.
It is clear that the plaintiff was injured as a result of the defendant's negligence.
As to the claim for damages, I have already referred to the extensive pain suffered by the plaintiff at the time of the accident. After the accident, she was taken to the Pemberton Hospital where she was x‑rayed and Pethidine was given to her for the pain. An ambulance was unable to take her to Perth and she lay in the back seat of Mrs Campbell's car for a four hour trip to the Mount Hospital where, having arrived there, she fainted. This must have been a very painful trip for the plaintiff. She was taken in and surgery was carried out by Mr J L Johnson, orthopaedic surgeon. The plaintiff's right knee cap was removed and her leg was then immobilised in a splint; she then was able to move on crutches and, after five to six days, was ready to travel home to the Eastern States. In his report of 7 October 1996 (Exhibit A1), Mr Johnson confirmed that the articular surface on the femur was undamaged in the accident and a firm repair of the patella tendon was possible. The plaintiff, however, was said to be significantly disabled by the lack of her patella and would need a prolonged rehabilitation program to strengthen her muscles to compensate for the loss of the patella. Mr Johnson felt that the plaintiff would need to be on crutches for about six weeks and would not be able to return to normal functions such as driving a car and walking freely for up to three months and possibly a year. He felt that there was an increased risk or osteoarthritis developing in the knee in the long term. The plaintiff said that when she arrived home, she was completely useless with pain in her shoulder and in the area of the broken rib on her left side. She attempted to walk because she was very determined to rehabilitate herself. There was very little that she could do for herself during this time, for example, could not dress herself, cook or do any housework. She needed considerable assistance for her personal matters and also around the household. She was able to use her right hand to wash her face. She said that Mr Richardson looked after her for about eight to 10 hours per day. After three months, she no longer had the leg brace but could not bend her leg. She undertook regular exercises in order to make her right leg bend - she did this every day; such exercises must have caused considerable pain and discomfort. The plaintiff demonstrated to me that she was a person of some considerable determination to overcome the problem with her right knee. Mr Richardson helped her in these exercises and she had physiotherapy for her shoulder and knee. The exercises for the knee and shoulder she did five times a day and this went on for two to three months. During this three months, she began to do some work in the kitchen but could not carry bags because she had no balance. She said that Mr Richardson was still helping her but about four to six hours per day. After five or six months, her knee was still very painful and her knee crumpled often when she was walking. For example, she fell out of doorways.
The leg still occasionally collapses and did so on the morning of the trial when she fell out of the door of the caravan in which the plaintiff and Mr Richardson were living during the trial.
At the present time, the plaintiff has some trouble vacuuming, can do some gardening in the sense of sitting down to pull weeds and has some trouble with her shoulder in terms of its mobility. She does some "small" shopping but Mr Richardson helps with the big items. Mr Richardson also hangs the washing on the clothes line.
The plaintiff said she can drive for up to about an hour before her right leg becomes "like a block" and causes her considerable pain. This apparently last happened two weeks ago. She also has difficulty with her leg, for example, sitting in an aeroplane. She has had Temazepam by way of medication and now has Panadol for any real pain that she suffers.
The plaintiff described her extremely active life before the accident, involving dancing, line dancing, playing cricket and rounders with her grandchildren, fossicking for gemstones and playing a limited amount of golf. These activities are extremely limited now. The fossicking for gemstones and polishing them was one of her hobbies before the accident but she is unable to carry out the fossicking now because she cannot climb the hills necessary. She has trouble turning in bed at night and is unable to go fishing as she did before the accident. She did surf swimming but is unable to do that now because she is unable to stand up in the surf. She has resumed her painting although she sells less paintings now than she did before the accident. In terms of her psychological condition, she said that she is "not very good to live with" and is concerned that the accident had happened to her when she was going to do a lot in retirement but now is unable to look forward to the same activities.
She now suffers from headaches from which seemed to have originated from behind her left shoulder and radiate to the top of her head - she has these all the time although the headaches are nothing like they used to be just after the accident. She has some cosmetic disability in her right knee and this can be seen in Exhibit D. The plaintiff was cross‑examined as to her physical activities and confirm that they were still using the 4WD and caravan to a degree. She says that notwithstanding the fact that a lot of the activity she used to undertake are now not available to her, she fills in her day involving the painting and sitting down gardening and, to a degree, some house keeping with Mr Richardson's help. She agreed that the cooking and some of the other matters carried out by Mr Richardson were for himself as well as her. She has some difficulty when she vacuums, albeit slowly, with her shoulder. She said that she did mention the headaches to Dr Soden once or twice and she was advised that the headaches came from her shoulder. In re‑examination, Mrs Hansford confirmed that if she was living by herself, she could not do all the vacuuming and could not lift heavy things involving the use of her left shoulder. She has some trouble cleaning out low kitchen cupboards and has to sit on the floor to do this. Further, she has difficulty with heavy shopping.
Mr Richardson confirmed in general terms the work done by him before and after the accident on behalf of the plaintiff and confirmed that their social life has "gone down the gurgler" since the accident. It appeared to me that Mr Richardson was not exaggerating the work done by him in any way on behalf of the plaintiff and corroborated the evidence of the plaintiff as to her difficulties and the limitations from which she now suffers as a result of the accident.
Upon the plaintiff's return to New South Wales, she came under the care of a general practitioner, Dr Jenny Soden. There are a number of reports from Dr Soden as to the course of the plaintiff's treatment in her care. Dr Soden confirmed that the plaintiff complained of pain and discomfort in the area of her knee operation and also in her left chest and shoulder. In Dr Soden's report of 8 April 1997, Exhibit A4, mention was made of the persisting pain in the plaintiff's left shoulder and the proposed review by Dr Zavatarro, an upper limb specialist. Dr Soden said that the plaintiff was making a good recovery in relation to the patella removal but would have long term restrictions in activities such as kneeling because of the loss of the bone. Dr Soden expected the plaintiff to recover fully from the fractured rib.
The plaintiff saw Dr Zavatarro on 9 April 1997. He reported in a report of 14 May 1997, Exhibit A9. He concluded that the plaintiff had a mild frozen shoulder which probably originated from a supraspinatus tendonitis or partial tear as a result of the accident. She was given anti‑inflammatory agents and encouraged to have physiotherapy. Dr Zavatarro felt that it may take 18 months to two years for the shoulder problems to resolve themselves.
Dr Soden reported on the plaintiff on 11 July 1998 (Exhibit A5), stating that there was significant improvement in the plaintiff's shoulder injury with some residual tightness. There was some persistent left chest pain and restriction in movements and there was knee discomfort as well. By that time, with analgesics, the plaintiff was said to cope well with most of the activities of daily living. In February 2000, the plaintiff reported to continue to have pain, especially at night, and limited movement in her knee which stiffens with walking and caused her to limp after 50 metres. She reported further difficulties using her knee. Dr Soden received complaints consistent with the complaints given to me by the plaintiff. Dr Soden's last report is of 16 April 2001 (Exhibit A7) and this confirms that the plaintiff was continuing to have pain in her right knee with restrictions and pain and restriction in her left chest and left shoulder. Intermittent use of analgesics and supportive therapy were required to manage her injuries. Some of the difficulties the plaintiff suffers in terms of housework and gardening are confirmed as are the cessation of some of the plaintiff's recreational pursuits, such as dancing and sporting activities.
The plaintiff had been referred to Mr Roger Parkington, an orthopaedic surgeon on the Gold Coast, Queensland. His reports are dated 26 March 1997 (Exhibit A2) and 30 March 1993 (Exhibit A3). He was of the view that the plaintiff had made a very good recovery from the patellatectomy and had regained a good function in her right knee but felt that she would always have some slight weakness in her right knee. There was a full recovery from the plaintiff's rib injury and he felt there would be no long term sequelae as a result of this. The same could be said of the mild frozen left shoulder. He felt the plaintiff's prognosis was relatively good and was of the view that the injury to the knee would not predispose the plaintiff to premature development of osteoarthritis. She would always have some minor discomfort in her knee and loss of extensive power. He felt that the plaintiff was unlikely to require further surgery to her knee.
Mr Mark Day, physiotherapist confirmed the physiotherapy given to the plaintiff for a considerable period and confirmed that both the injuries to her knee and shoulder responded to treatment but felt that there would be permanent loss of function on the knee but that the shoulder problem should be fully resolved.
There is a medical report from Ms Allison Downs, chiropractor. The plaintiff apparently had some treatment from Ms Downs, however, the treatment involved, according to the plaintiff, "putting her hip back into place" and some improvement of "the alignment of the left thoracic region" according to Ms Downs. It is my view that the chiropractic treatment was of doubtful validity and, for reasons which were advanced by the closing addresses of counsel, there should be no allowance given to the plaintiff for such treatment.
The plaintiff also saw an orthopaedic surgeon, Mr A G Hopcroft, during 2000. The report of Mr Hopcroft of 23 June 2000 (Exhibit A12) confirms, in general terms, the vast majority of complaints made by the plaintiff over the period from the time of the accident to the present time. Mr Hopcroft felt that the plaintiff had suffered a significant aggravation of underlying degenerative cervical spondilytic changes which were asymptomatic before the accident, as a result of the accident. There had been a major strain of the left shoulder which continue to cause her pain and which had aggravated and may well have caused degenerative changes in her left acromia clavicular joint as seen on x‑ray. He felt that the left fourth rib fracture had healed completely. Mr Hopcroft felt that the plaintiff would continue to require physiotherapy from time to time for her cervical spine. He confirmed that the plaintiff had continuing limitations on the use of her right knee and was of the view that there would be some osteoarthritic changes. He felt that the plaintiff would be likely to require some assistance into the future with heavier home maintenance chores, probably on a three hours a week basis. In his report of 9 May 2001 (Exhibit A13), Mr Hopcroft felt that the lack of terminal fraction in her knee would be best treated by occasional physiotherapy and possibly the occasional injection of hydro cortisone. If she developed arthritis in the joint, he did not believe that the plaintiff would progress to any replacement surgery.
As to the plaintiff's psychological condition, the plaintiff saw a clinical psychologist, Dr Peter Golas, on 8 August 1997. He reported in a detailed report of 20 October 1997 (Exhibit A10). There was an objection to the admissibility of this report on the basis that it contained and was based on factual matters not the subject of evidence by the plaintiff.
I have examined the report and there are a number of matters contained therein which were, in fact, reflected in the evidence, particularly as to the physical difficulties suffered by the plaintiff as a result of the accident and the limitations on the plaintiff's activities as a result thereof. Although the plaintiff was limited in her statements as to the effect of the accident upon her psychologically, there was, in my view, a sufficient basis for the report to be admitted into evidence. As to the weight to be given to the contents of the report, this must be looked at in the light of the obvious and conclusion which is available on the evidence that because the plaintiff was an active and healthy person before the accident and can no longer be classified as such, she would inevitably have suffered some degree of psychological stress as a result of those matters. The fact that she said that she was difficult to live with confirms, in my view, that there was a general psychological effect of the accident upon the plaintiff. It is appropriate for me to accept and rely upon the conclusion of Dr Golas that the plaintiff has been affected profoundly in a psychological sense as a result of the accident and, as a result thereof, has had a mixed anxiety and depressed mood together with a pain disorder as described in the report. It is appropriate, in my view, for the plaintiff to be found to require some counselling and psychotherapy with a clinical psychologist as a result of these matters as recommended by Dr Golas.
It is my conclusion that the plaintiff has made out the injuries and symptoms alleged in par 5.1 of the Statement of Claim. There was a difference of opinion as to whether or not there was likely to be an aggravation or acceleration of osteoarthritis in the right knee, however, the preponderance of the medical evidence supports this and it is a reasonable conclusion to draw from the injury to the right knee and the operative requirements as a result of the accident. It is clear that the plaintiff received the treatment and management alleged in par 6.1 of the Statement of Claim. I am also satisfied that the residual disabilities pleaded in par 7.1 of the Statement of Claim have been made out and that the plaintiff has suffered those disabilities to the present time. It is clear that the plaintiff will continue to have symptoms and, as a result, problems in terms of carrying out activities as a result of the injury to her knee and left shoulder in particular. She will, as I have already found, continue to have some psychological difficulties as a result of the accident.
It is clear also that the plaintiff has been limited to a considerable degree in the pre‑accident activities referred to in par 8.1(a) in the Statement of Claim. Those continuing difficulties set out in par 8.1(b) have been established, in my view, by the evidence.
It is clear in general terms that the plaintiff suffered a very serious injury to her knee and other injuries which have, to a considerable degree, affected the plaintiff's enjoyment of life. There will be a considerable effect in the future on the plaintiff's activities. In the future, the plaintiff will require intermittent medical treatment and medication; an allowance will be made for this in the general damages.
In my view, the reasonable award by way of damages would be the sum of $50,000.
I now turn to the question of gratuitous services Having determined that both the plaintiff and Mr Richardson are honest and reliable witnesses, I accept that for the first three months after the accident, Mr Richardson was virtually a full‑time carer for the plaintiff, involving an average of nine hours work per day on Mr Richardson's part. As to the next two to three months, the plaintiff still required assistance from Mr Richardson - I accept that he averaged five hours per day assisting the plaintiff. Since that time to the trial, Mr Richardson had also assisted the plaintiff, although to a lesser degree as she has been recovering from the effects of the accident. As to this period, the plaintiff has claimed an amount of four hours per week - this appears reasonable.
In the second three months, the plaintiff required assistance with dressing, domestic work around the house including cooking and shopping. Since then, and at the moment, Mr Richardson is giving the plaintiff minimal assistance in dressing, grooming, etc., but does assist the plaintiff in some domestic chores and shopping. According to Mr Hopcroft, the plaintiff will require assistance in the future - with heavier domestic chores, he estimated three hours per week. As to the future, however, I am unable to find that anything done for the plaintiff by Mr Richardson is necessarily causally related to the accident, and even if it were, such assistance would be no more than given by any person in the position of Mr Richardson, whether married or not. The assistance would be no more than "minor changes of domestic routine or attentive care that can be expected of loving relatives and friends" (see Hodges v Frost 53 ALR 373 per Kirby J at 385).
As to those periods during which Mr Richardson has rendered assistance to the plaintiff which have been necessary for her and arising from the accident, the real question is whether there should be a deduction on the basis that some part of the assistance given to the plaintiff by Mr Richardson has also been for his benefit. There is no doubt that the assistance in the domestic area such as cleaning, cooking, shopping, etc. involved some benefit to Mr Richardson and involved work which, had he lived alone, he would have done for himself. The necessity for some deduction to be made for services rendered for the household as a whole (including Mr Richardson) has been recognised by the authorities (see Newman v Nugent (1995) 12 WAR 119). Because, however, the large proportion of the services in this case involved services of a personal nature to the plaintiff, I consider that a deduction of no more than 10 per cent is appropriate. Thus, accepting as I do the relevant figures submitted by the plaintiff, the allowances made for past gratuitous services will be $24,636, less 10 per cent $2,467, leaving an amount to be awarded of $22,169.

The plaintiff will also be awarded interest on the award for past gratuitous services in the amount of $3,214.
Special damages were claimed in the sum of $11,372.64. None of the chiropractic treatment will be allowed for a sum of $550. The sum allowed for special damages is thus $10,822.64. Interest is awarded on this sum at 3.5 per cent per annum giving a payment of $1,705.
The plaintiff is thus awarded:
General damages  $50,000.00
Gratuitous services  $22,169.00
Interest on past gratuitous services  $ 3,214.00
Special damages  $10,822.64
Interest on special damages  $ 1,705.00
TOTAL  $87,911.00