Jajieh v Woolworths Ltd
[2010] NSWDC 239
•26 October 2010
CITATION: Jajieh v Woolworths Ltd [2010] NSWDC 239 HEARING DATE(S): 21, 22 & 23 July 2010
JUDGMENT DATE:
26 October 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict for the plaintiff on the issues of liability;
2. Damages are assessed in the sum of $766,793;
3. Judgment for the plaintiff in the sum of $750,000;
4. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
5. The exhibits may be returned;
6. Liberty to apply on 7 days notice if further orders are requiredCATCHWORDS: TORTS – negligence – occupier’s liability – slip and fall on wet floor in retail premises where occupier had notice of water spillage on floor – delay in isolating and cleaning spillage - DAMAGES – assessment of multiple heads of damage including damages for the provision of childcare services to the plaintiff’s children in addition to damages for gratuitous services provided to the plaintiff – ss 15, 15B of the Civil Liability Act 2002 LEGISLATION CITED: Civil Liability Act 2002, ss 5B, 5D, 15, 15B, 16
District Court Act 1973, s 51(4)
Evidence Act 1995, s 60CASES CITED: Amaca Pty Ltd v Novek [2009] NSWCA 50
Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Ehlefeldt v Rowan-Kelly [2009] NSWSC 331
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Liverpool City Council v Altaf Laskar [2010] NSWCA 52
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Shaw v Thomas [2010] NSWCA 169
State of NSW v Moss [2000] NSWCA 133
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40PARTIES: Diane Jajieh (Plaintiff)
Woolworths Ltd (Defendant)FILE NUMBER(S): 2009/335833 COUNSEL: Mr T Boyd with Mr J Cairn (Plaintiff)
Mr D Ronzani (Defendant)SOLICITORS: Kheir & Associates (Plaintiff)
Bartier Perry (Defendant)
JUDGMENT
Table of Contents
A. INTRODUCTION Nature of the case [1] Issues [2] Summary of findings [3] – [5] B. EVIDENCE REVIEW & FACTUAL MATTERS Overview of oral evidence [7] Overview of documentary evidence [8] – [10] Facts [11] – [69] The plaintiff
[12] – [17] The claimed incident
[18] – [33] Assistance to the plaintiff at the scene
[34] Course of treatment and medical assessments
[35] – [69] Findings on injuries [70] – [75] Findings on remaining disabilities [76] – [83] Effect of disabilities on domestic tasks and responsibilities [84] – [102] C. FINDINGS ON LIABILITY ISSUES Consideration of Issue 1 – Scope of the duty of care owed [104] – [106] Consideration of Issue 2 – Breach of duty of care [107] – [137] Consideration of Issue 3 – Causation [138] – [143] D. ASSESSMENT OF DAMAGES Plaintiff’s probable life span [145] Non-economic loss [146] – [153] Loss of earning capacity [154] – [186] Loss of superannuation [187] Past paid care [188] – [189] Past gratuitous care [190] – [203] Future domestic assistance [204] – [211] Past childcare, s 15B CL Act [212] – [241] Future childcare, s 15B [242] – [250] Future out-of-pocket expenses [251] – [266] Past out-of-pocket expenses [267] Summary of damages assessment [268] D. DISPOSITION & ORDERS Disposition [269] Orders [270]
A. INTRODUCTION
Nature of case
1. The plaintiff, Diane Jajieh, has brought these proceedings against the defendant, Woolworths Ltd, claiming damages for alleged negligence in respect of a claimed breach of the duty of care owed by the defendant as occupier of retail premises. The claim by the plaintiff arises from circumstances where she slipped and fell on wet floor tiles whilst she was walking over an area of the premises where a water spillage had earlier occurred on the floor.
Issues
2. On the question of liability, the defendant acknowledged it owed the plaintiff a relevant duty of care. There was contention over the scope or content of the duty of care owed, and whether the defendant should be found to have been in breach of its duty of care to the plaintiff. On the question of damages, with the exception of past out-of-pocket expenses, there was contention over the extent of the plaintiff’s entitlement to an assessment of damages in respect of her injuries.
Summary of findings
3. I found the plaintiff and the witnesses called in her case to be credible witnesses. I have determined the liability issues in favour of the plaintiff.
4. The plaintiff claimed 10 individual heads of damage for assessment. The parties made quite disparate submissions on quantum, based on differing perspectives and assumptions emerging from the evidence. The heads of damage claimed by the plaintiff, and the effect of the monetary submissions of the parties are listed below, together with paragraph references to my assessment of the various heads of damage claimed. In that summary, the submissions relating to non-economic loss have been adjusted to reflect the indexed changes to s 16 of the Civil Liability Act 2002, [“CL Act”] such changes taking effect on 1 October 2010.
Head of Damage claimed by plaintiff
SubmissionsParagraphs (a) Non-economic loss (b) Loss of earning capacity (c) Loss of superannuation (d) Past paid care (e) Past gratuitous care (f) Future domestic assistance (g) Past childcare, s 15B CL Act (h) Future childcare, s 15B CL Act (i) Future out-of-pocket expenses (j) Past out-of-pocket expenses Totals
5. I have assessed the plaintiff’s entitlement to damages in the sum of $766,793.
B. EVIDENCE REVIEW & FACTUAL MATTERS
6. In addition to the evidence of the plaintiff, on the issue of liability, there were 2 independent witnesses called to describe the events surrounding the circumstances of the plaintiff’s slip and fall injury. The defendant called no evidence on these issues. The parties relied on medical reports without calling the authors of those reports to give oral evidence.
Overview of oral evidence
7. Oral evidence was given by the following 6 witnesses:
(a) The plaintiff, Diane Jajieh
(b) Mrs Sarah Shabbir, a customer who was in the defendant’s store when the incident occurred;
(c) Mrs Shashi Sharma, the sister of Mrs Shabbir. She was also in the defendant’s store when the incident occurred;
(d) Mrs Fatema Zreika, the plaintiff’s mother-in-law;
(f) Mrs Waad Moukhaiber, a sister of the plaintiff.(e) Mrs Sarah Kalal, a sister of the plaintiff;
Overview of documentary evidence
8. On the issue of liability, the plaintiff tendered the standard printed safety instructions issued by the defendant to its staff concerning the maintenance of floor areas in the premises and for dealing with spills within its premises : Exhibit “D”. The plaintiff also tendered a number of photographs showing the general layout of the area where the incident in question occurred within the defendant’s premises: Exhibit “B”. The plaintiff also tendered a customer incident notification report prepared by the defendant’s store manager : Exhibit “C”.
9. On the medical issues, the plaintiff tendered a bundle of 11 medical reports comprising hospital clinical notes, radiological reports, as well as medical reports from her treating doctors, and a number of medico-legal reports from experts who had been engaged by her solicitors : Exhibit “A”. The defendant tendered a single medico-legal opinion from an orthopaedic surgeon : Exhibit “1”. None of these experts were required for cross-examination to explain or to clarify the content of their respective reports.
10. On the issue of damages for domestic assistance, the plaintiff sought to rely upon an Australian Bureau of Statistics publication concerning trends in the distribution and sharing of household work as set out in the 2009 ABS publication identifier number 4102 : Exhibit “E”.
Facts
11. In the paragraphs that follow I set out my findings on matters of fact before addressing issues calling for decision in the proceedings.
The plaintiff
12. The plaintiff, Diane Jajieh, was born in Sydney in 1983 and is one of six children. She is presently aged 27 years. At the time of her injury she was aged 25 years.
13. The plaintiff completed her schooling to Year 10 level in 1998. She commenced Year 11 but left school in October 1999 without completing her secondary education. This was in order to care for her ailing mother who subsequently passed away in September 2000. In the lead-up to her mother’s death, and thereafter, as a teenager, the plaintiff took on the role of caring for her siblings with the assistance of relatives and friends.
14. The plaintiff had also worked before her injury. In 2001 she undertook casual employment as a kitchen hand at a fast food outlet for about 3 months. In that year she also worked as a receptionist at a medical centre for 1 day per week for about 7 months. Between February 2002 and April 2003, a period of 14 months, she worked full-time in a supermarket, initially in the delicatessen section, and then as a cashier, following a finger injury which she had sustained when using a meat slicer. That injury had resulted in 3 weeks of absence from work.
15. In July 2003 the plaintiff married her husband, Mustapha Zreika. Subsequently, and before her injury, in 2004 and 2007, she had 2 children. The second of those children was born with club feet and has required extensive care and attention for this condition, including surgical treatment. This had taken up a significant amount of the plaintiff’s time before her injury. This child required special care.
16. At the time of her injury, the plaintiff was 8 months pregnant. She subsequently gave birth to her third child in April 2008. In July 2008 the plaintiff and her husband separated. She is the primary carer of her children.
17. Before her injury, the plaintiff was independent and carried out the usual domestic and household tasks required for looking after her children and for managing the family home. She did so without restrictions. This included preparing traditional Lebanese cooking, as well as cleaning, washing, vacuuming, ironing, mopping, cleaning the bathroom and kitchen, shopping, in addition to caring for the needs of her children, including dressing, undressing and bathing them.
The claimed incident
18. At about 3.00pm on Sunday 2 March 2008 the plaintiff was shopping at the defendant’s Big W store at Auburn, NSW. Shortly after that time, she was walking in an aisle area of the premises between bays or islands of displayed goods in the intimate apparel section. She had selected a box of nappies for purchase and was walking towards the cashier to pay for the goods when she slipped and then fell onto her back, following which, her head struck the floor.
19. The plaintiff stated that whilst she was carrying a box of nappies in the store and was making her way to the cash register, she slipped on something and then started to fall. At the time she did not know what she had slipped on. She was aware that her right leg “went up” and her “knee spun a bit” and at that time she realised she couldn’t balance herself and she fell back onto her back, her head and her right arm then hit the floor. She said that at that time she realised there was water on the floor. She says she then realised her clothes were “drenched in water”. She denied that this description was an exaggeration, and stated that her back was fully soaked, indicating that she could wring water out of her shirt.
20. In answers to questions asked of her in cross-examination, the plaintiff stated that at the time of the incident she had been wearing a T-shirt and slacks. She confirmed that when she slipped, she fell onto her back. She explained that she did not slide when she fell and she did not drag or spread the water with her on the floor. She stated that when she sat up, she noticed that there was a lot of water on the floor.
21. The plaintiff stated she had been on the floor for a while when some witnesses, other customers in the store, came to help her up from the floor. She also stated that a female Big W staff member also appeared on the scene. She stated that at this time the following events occurred:
“ Q. Do your best to tell the court what your recollection is of the conversation, would you, and who said what? I know it’s difficult, but do your best to tell the court what the conversation was?
A. The customer was telling the employee, “Youse wait until a pregnant women comes and falls on the water when 20 minutes before we had told a staff member to come wipe up the water off the floor when my sister nearly slipped there”.Q. Yes, and do you recall any response from the person you've called the staff member?
A. What I remember is that they had - the employee that they had spoken to that the water had come along and the - like, she said that, “Yeah, they did tell me, but I went to get the mop, but I had got told to do something else, and I totally forgot about the water on the floor”.Q. And did you go into the change room?Q. What happened to you then, did you get on your feet by yourself or were you assisted to get on your feet, or what happened?
A. No. The staff member that had come to me with the customers, she had - they had to help me up and she had to help me to walk towards - towards the change room.
A. Yeah, we sat in - in the change room on the little benches. We sat there .”
22. The plaintiff stated that she was sitting in the fitting room where she had been taken, when the store manager and her husband appeared. The store manager gave her a cup of water and was telling her to calm down as she was upset. She had been concerned for the unborn child, and had been crying and holding on to her stomach and her back had been hurting her.
23. When the plaintiff was cross-examined about these events, she reiterated her account of the conversation between the store employee and one of the witnesses as outlined above. It was suggested to the plaintiff that she had misheard the conversation in question and had not given an accurate rendition of it. It was also suggested to the plaintiff that the manager of the store who came to her assistance had at no stage been told that the store employee had failed to clean up the water after she had been told it was in the aisle. The plaintiff denied these suggestions and no evidence was called to contradict her denials or to put forward any different versions of the conversations and events she had recounted in her evidence.
24. Mrs Sarah Shabbir and Mrs Shashi Sharma gave evidence in the plaintiff’s case. They were sisters, and they were also customers who were present within the store, both before, and at the time of, the plaintiff’s injury. The effect of their evidence was to confirm the plaintiff’s account of events.
25. Mrs Shabbir stated that she had noticed some kind of liquid spillage on the floor of an aisle whilst she was shopping with her sister. She made this observation whilst walking with her sister at the time when her sister nearly slipped upon that liquid. She formed the opinion that it was probably water and reported it to a staff member at the fitting room which was about 5m away from where this spillage had been evident. She stated that the staff member just nodded and carried on with her work.
26. Mrs Shabbir stated that she remained around the area of the spillage and kept an eye on it for some 5-10 minutes or so to ensure that nobody would step on the spillage. When nobody turned up to clean the spillage, she went back to the same female employee with whom she had previously spoken at the fitting room. She recounted her subsequent conversation with that employee in the following terms:
“Q. What did you say to her?
A. I said, “You haven’t - you haven’t cleaned that up. Can you please come and clean that up?” and she still - she was still doing her work. She didn’t say anything, and - because I was expecting her to come for the second time, because I have reported for the second time.Q. What did you do then?
A. I came back again. I was shopping again, keeping and eye, and because she didn’t turn up then, it was another five, 10 minutes again, so I went and I started doing my shopping, I moved away from that place. So then another five, ten minutes I heard some noise and I looked back. I saw my sister helping this lady to get - helping this lady to get up.Q. Then did you go back to where the lady was and your sister was?
A. Yes, I did - I did go to that place.Q. Did you lend some assistance to the lady on the floor?
A. Yeah.Q. Do you recognise the lady in the court today?
A. Yeah. At the time I think she was pregnant, yeah.Q. Did some member of staff come to the scene?
A. Yes, I went down to the front desk and I asked the staff at the front desk to come and see what has happened, an accident over there.A. Someone came, yeah. Yeah.
Q. Did you speak to anyone else about the incident?
A. Yes, the store supervisor. He called me and then I talked to her. I talked to him, sorry.Q. Where do you speak to him?
A. It was in the fitting room. He took me in the fitting room, yep.…
Q. Do you recall any reply from him?Q. What did you say to him, as best you can recall?
A. Yeah, I - I said, “I had - I had asked her twice to come and clean the spillage. She didn’t and a lady has fallen down.”
A. He accepted, yeah. He said that, “Yeah, she should have cleaned that up.” He acknowledged that.”
27. Mrs Shabbir and her sister gave their contact details to the store manager before leaving the store.
28. In answers to questions in cross-examination, Mrs Shabbir reiterated that the manager acknowledged to her that the employee should have cleaned up the spillage. She described the spillage as being clear and the size of a dinner plate, consisting of a scattered pattern of distribution, not just of round appearance. She agreed with the cross-examiner’s proposition that the plaintiff’s clothing did not appear to be drenched. She clarified this to mean that the plaintiff’s clothing “was wet but not really drenched but it was wet. Not the water dripping or-.” That answer was left incomplete.
29. Mrs Shashi Sharma stated that before the incident involving the plaintiff she had slightly slipped on the floor when she stepped on the water and had then observed her sister go to inform sales staff of this spillage. She described the area of the spillage as being about a metre in area distributed in an elongated oval shape. In cross-examination she described the area as being of at least a metre in area, and comprised approximately a full cup of water.
30. Mrs Sharma stated she thought that, roughly, about 20 minutes had passed between this incident and when the plaintiff slipped on the same area of water on the floor. She stated that she saw the plaintiff sliding and falling on that area of water and falling onto her back. It was at that stage that she saw the plaintiff struggling to get up, and she then went to assist her to stand up.
31. Mrs Sharma described a conversation she had heard to occur between her sister Mrs Shabbir and the store manager. Her account of this conversation was in the following terms:
“Q. Did you see your sister speaking to anyone?
A. Yeah, she was speaking to the store manager.Q. When you saw your sister speaking to someone, where were you?
A. I was with them.Q. Whereabouts?
A. It was near the fitting room. In the changing area or whatever--Q. Sorry, the?
A. The changing room, yeah.Q. Do you recall now what was said?
A. My sister sort of had a bit heated argument with the man, with the store manager, saying, “I told the sales girl to wipe it. Twice she told her to wipe it and she didn’t wipe it and now she has fallen.” And then I also heard her saying, “Aren’t you guys training your staff in occupational health and safety issues?” This is what I heard my sister saying to the store manager.Q. Did you hear the store manager say anything in response?
A. I cannot recall the store manager - what he said - his response. Yeah.Q. You don’t recall the response?
A. I don’t recall his response.<CROSS-EXAMINATION BY MR RONZANI
Q. This conversation that you say you heard your sister have with the store manager was not in the fitting room but somewhere near the fitting room, is that right?
A. I don’t recall. It’s not - it didn’t happen in the - in the fitting room, but just I think outside the fitting room area.Q. Well when you’ve said you think, you really don’t recall where your sister and the store manager spoke to each other, do you? Because you weren’t present, were you?
A. I was present. I heard the conversation. But I can’t recall which part of that whole area - but it happened just close to the fitting room.Q. Do you claim you were as close to your sister when she was speaking with the store manager as I am standing next to the other barrister here at the bar table? Is that how close you are saying you were with your sister at this time she was speaking with him?
A. Yeah.…
Q. I suggest that you are mistaken because at the time your sister was speaking with the store manager it was just the two of them alone - you’re not present - and they were in the fitting room?
A. But I heard them - the conversation that my sister was having with the store manager saying, “Don’t you train your staff on occupational--Q. But you weren’t with them, were you?
A. I heard the conversation.Q. Do you agree with me by answering that way that you weren’t with them? You say you were overhearing but not with them when she was having this conversation. Is that what your evidence is?
A. Whatever - whatever conversation they had in the fitting - inside the fitting room I - I wasn’t there. But this conversation happened outside the conversation room - sorry, outside the fitting room.Q. I want to suggest to you that all your sister said to the store manager was that your sister had asked twice for it to be cleaned up. She hadn’t cleaned it up and now a lady has fallen. That’s all your sister said, I suggest to you? Nothing else. Nothing about occupational health and safety, none of that. Just what I’ve just put to you, I suggest?
A. This is what I heard so that is what I’m saying.…
Q. This is what your sister has told this court, that she to the store manager alone in the fitting room said to him that she twice asked the woman to clean it up, she didn’t and now a woman has fallen over. Nothing else was said by her and that he responded to that. But you don’t remember what he responded, do you?
A. When the--Q. You don’t remember what he responded, do you?
A. I don’t remember what he responded, yeah.Q. And what I’m suggesting all your sister said to him was, “I’ve asked her twice to clean up, she didn’t, and now a lady has fallen over.” Isn’t that what you really overheard and nothing more?
A. Yeah, that was - that was what I heard and I also heard her saying, “Don’t you train your staff in occupational health.” This was another statement I heard from her.Q. I want to suggest to you that you are mistaken about this other statement?
A. But - but this statement which I’m saying that don’t you - sorry - saying to the store manager, saying don’t you train these girls in occupational health and safety - this happened outside the fitting room, not inside the fitting room.HIS HONOUR
Q. Are you saying that there was a conversation outside the fitting room and then your sister went into the fitting room with the store manager after that?
A. Yeah, when - sorry, when she went to the fitting room I wasn’t there in the fitting room. When the store manager came, both of them were going to the fitting room together and they were having the conversation and I heard her saying this, “Don’t you train your staff in occupational health and safety?” outside the fitting room and then both of them went inside and I wasn’t present inside and what happened inside I don’t know.RONZANI
HIS HONOUR: I think you’ve observed your Browne v Dunn obligations.”Q. Well, you understand that I’m suggesting that you’re mistaken about this additional conversation where there is any mention at all about occupational health and safety? Do you agree or disagree that I’m putting to you that you’re mistaken about that?
A. I think that’s what I heard.
32. On the day of the incident, the defendant’s store manager, Mr Bilbe, investigated the occurrence. He ascertained that the plaintiff had slipped over on the tiled floor of the premises near the intimate apparel section. He filled out an incident report in which he made the observation that there “was water spilt on the floor and Diane slipped over whilst walking.” : Exhibit “C”. The report identified 2 witnesses who had also been shopping in the store, Mrs Shabbir and Mrs Sharma.
33. Exhibit “C” suggested that the floor area in question had been cleaned at about 3.45pm on that day, which was about 15 minutes before the incident. Neither Mr Bilbe nor the person who was said to have cleaned the floor before the plaintiff’s fall was called to give evidence concerning these matters.
Assistance to the plaintiff at the scene
34. The plaintiff was given assistance at the scene. A staff member went to her assistance whilst she was on the ground and later helped the plaintiff to her feet, following which she was taken to sit in the fitting room area and later to the manager’s office where the incident report form was completed. An ambulance was booked at 4.02pm. The ambulance report recorded that the plaintiff had complained of having slipped on a wet floor and then landing on her back. The report also recorded complaints of pain in the left groin, left lumbar region and in the epigastric area. The plaintiff was taken by ambulance to Auburn District Hospital.
Course of treatment and medical assessment
35. In the paragraphs that follow I will review the initial medical treatment received by the plaintiff for her injuries, followed by subsequent medico-legal assessments of the plaintiff’s injuries.
Auburn District Hospital
36. On the day of her injury, the plaintiff was triaged in the casualty department of Auburn District Hospital at 4.38pm. A review of the discharge summary from the hospital reveals that the plaintiff presented there complaining of left back pain, hip pain, epigastric pain and groin pain following the described fall. The mechanism of the injury was stated to be a slip on a wet surface, following which the plaintiff first landed on her mid-back region, and then hit the back of her head.
37. Her complaints included headache, elbow pain, hip pain, groin pain and left sided lower back pain. Physical examination revealed mild tenderness in the cervical spine, para-vertebral tenderness in the left lumbar area, limited range of movement in the left hip apparently due to limited ability to straight leg raise, some left leg pain and an inability to walk, apparently due to pain. The plaintiff was also observed to be in mild distress due to pain. She was given only limited analgesia and was not x-rayed, due to her pregnancy.
Dr Denis Chow – treating general practitioner
38. On the day following her injury, the plaintiff attended upon Dr Denis Chow, a general practitioner. When he examined her, he noted that she was tender in the upper back with painful movements in that region. He also noted tenderness in her arms and in her left lower back with painful movements. He also noted tenderness on the left side of her abdomen. He arranged imaging of her lower back to be carried out after conclusion of the pregnancy. He thought that her condition on examination was consistent with the accident history. He was of the view that she had suffered a musculo-ligamentous strain to the lumbar spine. He referred her to an orthopaedic surgeon and to a psychiatrist. The plaintiff has also had physiotherapy.
39. Dr Chow’s handwritten patient history cards for the period between 10 September 2003 and 17 August 2009 were tendered in evidence. They were almost impossible to decipher. However, within those notes there are repeated references to back pain after 2 March 2008 and to depression, which first appears in the notes after the date of the fall in question.
Dr Robinson – CT scans of lumbo-sacral spine
40. On 10 July 2008, at the request of Dr Chow, Dr Robinson reported on CT scan studies of the plaintiff’s lumbar spine. He noted a slight degree of posterior annular bulging of the disc at L4/5 and slight narrowing of the L5/S1 disc with a posterior annular bulge. He also noted that disc was coming into close continuity with both S1 nerve roots.
Dr Mervat Akladious – treating general practitioner
41. On 20 January 2009 the plaintiff consulted Dr Mervat Akladious, another general practitioner. His report indicates that he has seen her on 2 occasions. He recorded a history of low back pain with referred pain in the right lower limb.
42. Dr Akladious recorded the plaintiff’s complaint that the back pain affected her in looking after her children. He reported that she had become very limited in her activities due to pain. He noted complaints of numbness in the right leg, waking 4 to 5 times at night due to right leg pain, difficulty with cleaning, cooking, housework, shopping, and with her family responsibilities. He also noted her complaints of tiredness, reduced energy and motivation, day-time sleepiness, and moodiness causing family conflicts.
43. Dr Akladious was of the opinion that the plaintiff’s complaints of low back pain were due to the injury in question. He also thought she was unable to resume her pre-injury duties and needed help with housework, childcare, transport and even with self-care “most of the time”. His view of the prognosis was for acute exacerbations of low lack pain with mild to moderate exertion.
Dr Karunaratne – MRI of the lumbar spine
44. On 22 April 2009 Dr Karunaratne reported upon lumbar MRI scans requested by Dr Guirgis. The report was essentially similar to the previously reviewed lumbar CT scan findings concerning the L4/5 and L5/S1 discs. He referred to disc dehydration with moderate loss of height at the L5/S1 level. No nerve root impingement was noted.
Dr Mehdat Guirgis – treating and assessing orthopaedic surgeon
45. On 3 March 2009, at the request of her general practitioner Dr Akladious, the plaintiff was examined by Dr Mehdat Guirgis, an orthopaedic surgeon. He took a history of lower back pain and stiffness following the incident, with fluctuating repeated acute episodes. Dr Guirgis described a feeling of numbness spreading from her lower back to the back of her right thigh which was triggered by prolonged standing or sitting. He noted that she had told him she could not find a comfortable position in which to sit or sleep.
46. When Dr Guirgis examined the plaintiff he noted a loss of normal lumbar lordosis with tenderness over the right sacro-iliac joint and tenderness over the lower to lumbar spines and related disc spaces, with movement of the lumbar spine restricted by 25 per cent in flexion and extension, side flexion and rotation to the right, with guarding of the paraspinal lumbar muscles on exceeding the range of movement. He also noted symptoms of chronic pain, anxiety and depression, for which the plaintiff was obtaining psychiatric care.
47. Dr Guirgis was of the opinion that the injury resulted in post-traumatic mechanical derangement of the lumbar area with proximal right L5/S1 sciatica. He interpreted the MRI evidence to show a right centro-oblique posterior disc protrusion extending backwards to indent the antero-lateral surface of the thecal sac at the level L5/S1, together with a minor broad-based disc bulging extending backwards to touch but not indent the ventral surface of the thecal sac at the L4/5 level.
48. Dr Guirgis stated that his physical findings following his examination of the plaintiff were consistent with the history of her injury which she had described, and were in accordance with her symptoms, signs and disabilities.
49. Dr Guirgis made treatment recommendations of a conservative nature, and expressed the opinion that the plaintiff remained unfit for activities that would require applying stresses to her back. He suggested she avoid heavy lifting or repeated bending and twisting of the spine, as well as activities causing jolting, jerking or jarring of the back, and manual handling activities such as pushing and pulling of heavy weights. He also identified a need for home help for heavier type chores, which he estimated at 3 hours per day, 3 days per week.
Dr Ann Stephenson – treating and assessing psychiatrist
50. On 2 October 2008, the plaintiff was examined by Dr Ann Stephenson, a consultant psychiatrist. Subsequent consultations took place with Dr Stephenson on 16 October 2008, 30 October 2008, 12 November 2008, 10 March 2009 and 14 May 2009, the last date being coincidental with Dr Stephenson’s report. Dr Stephenson summarised in short form the events of the plaintiff’s injury and the physical consequences of the injury as described by the plaintiff. She then focused on the psychological issues affecting the plaintiff.
51. Dr Stephenson recorded the plaintiff’s complaints of disturbed sleep due to back pain, headaches associated with lack of sleep, reduced patience, always being sad, and of having lost interest or enjoyment from activities. Dr Stephenson’s observations were that the plaintiff conducted herself without exaggeration at the interview. She described her as being dysphoric, worried and concerned about the ongoing experience of pain which was affecting her interaction and ability to manage her children.
52. Dr Stephenson made a diagnosis of chronic major depression associated with chronic pain amounting to a chronic pain disorder. She assessed the condition to be orthopaedically based. She noted that she thought the plaintiff was unable to function adequately as mother to her children and in the management of her household. She thought the ultimate outcome remained uncertain, with the plaintiff’s ability to resume full responsibilities and duties being dependent upon the outcome of the orthopaedic and spinal disorder more than the resultant psychiatric condition.
53. Dr Stephenson expressed her reserved concern over the plaintiff’s future ability to undertake duties that involved significant physical exertion.
Dr John Davis – consultant occupational physician
54. On 19 November 2009, at the request of her solicitor, the plaintiff was examined by Dr John Davis, a consultant in occupational medicine. Dr Davis provided a report of that consultation on the following day.
55. After reviewing the plaintiff’s history, Dr Davis summarised the plaintiff’s complaints as comprising a dull ache type pain in the lower back, which was at times sharp and shooting, and worse on awakening in the morning, with considerable fragmentation of sleep patterns. The pain was described as radiating through the right leg to the knee, with intermittent cramping. Dr Davis also noted that the plaintiff experienced aggravation of these problems from normal domestic chores and responsibilities, such as food preparation, scrubbing, mopping, vacuuming, sweeping, ironing, hanging washing, cleaning cupboards, lifting heavy pots and repetitive bending. Difficulty was reported with gardening, child-care and restrictions in social activities.
56. Dr Davis noted that on his physical examination of the plaintiff, there was increased tension in the right para-vertebral muscles, with tenderness over the inter-spinous ligament at the lumbo-sacral level, and over the right lower facet and sacro-iliac joint. He also noted a reduction in the range of movement of the spine and that the plaintiff’s injuries were consistent with her history.
57. Dr Davis expressed the prognosis for the plaintiff as being for continuing pain, impairment and disability that would impact upon her activities of daily living. In his opinion, the plaintiff’s injury dictated that she should be restricted with activities involving repetitive or sustained flexion, heavy lifting, twisting, working in confined or awkward spaces, prolonged periods of travel, repetitive work above head height or other activities which dictated static loading in her lower spine, such as extended periods of work on a computer.
58. Dr Davis thought that if the plaintiff returned to work, she would be unsuitable for the work she had previously undertaken as a packer or as a delicatessen assistant, and would be significantly disadvantaged on the open labour market. Dr Davis also thought that the plaintiff needed domestic assistance. This latter issue will be examined more closely in connection with the assessment of damages.
Dr Richard Deveridge – consultant surgeon
59. On 13 April 2010, at the request of her solicitor, the plaintiff was examined by Dr Richard Deveridge, a consultant surgeon. The report which followed the consultation was dated 22 April 2010.
60. After reviewing the plaintiff’s history, which included complaints of frequent low back pain and stiffness, pain into the left hip, numbness of the right thigh, inability to sit, reduced tolerance for sitting, standing or walking, the triggering of back pain by coughing or sneezing, the worsening of pain in cold weather and sleep disturbance, Dr Deveridge stated his findings on examination. He found the plaintiff moved slowly and carefully and was protective in her movements. He noted a loss of lumbar lordosis, restriction of lumbar movements and spasm of the para-lumbar muscles. He also noted some vague sensory loss in the right thigh region without any clear-cut dermatomal distribution. It was not suggested that this was a non-genuine symptom. He also reviewed the imaging scans of the lumbar spine.
61. Dr Deveridge’s interpretation of the radiology reports was that they demonstrated a significant L5/S1 disc lesion that encroached on the lumbar nerve roots, co-relating to the history of the injury and the presentation of mechanical lower back pain. He expressed the opinion on the balance of probabilities, that the plaintiffs residual lower back and leg disability was attributable to the fall in question, there being no significant pre-existing or predisposing conditions identified.
62. Significantly, Dr Deveridge expressed the opinion that the plaintiff was going to be permanently unfit for repetitive bending, heavy lifting, carrying, twisting, pushing and dragging activities. He also stated that she should avoid prolonged periods of sitting or standing. He was of the view that she was going to be permanently unfit for her previous employment in supermarket duties because she could not cope with the prolonged standing as well as the bending and twisting that were required in that type of work. He expressed the view that she would be limited to more sedentary duties, probably on a part-time basis, in light of her disabilities. He did not see a role for formal rehabilitation in her situation, but he suggested a number of treatment options to which I will refer in analysing the damages issues.
63. Dr Deveridge was of the opinion that the plaintiff’s condition was chronic and stable, having reached the point of maximal medical improvement, but nevertheless having a longterm impact on occupational, recreational and day-to-day activities.
Dr Kalev Wilding – consultant orthopaedic surgeon
64. On 12 August 2009, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Kalev Wilding, a consultant orthopaedic surgeon. Dr Wilding reported on the same date.
65. Dr Wilding reviewed the plaintiff’s history and noted her current complaints regarding her back, her neck, her right wrist and her right knee. His findings on examination included tenderness in the lower lumbar region, diminished extension, minimal decrease in rotation and lateral flexion to both sides, with back discomfort with straight leg raising to 70 degrees on both sides. He did not detect any para-vertebral muscle spasm or tenderness of the cervical spine, nor did he detect any para-vertebral muscle guarding of the lumbar spine. Examination of the right knee revealed minimal retro-patellar crepitus, and examination of the right wrist revealed tenderness over the mid-dorsal aspect of the wrist and also over the anatomical snuff box.
66. Dr Wilding reviewed the radiological imaging of the plaintiff’s lumbar spine and commented that there were lumbar spondylitic changes centred at the L4/5 and L5/S1 levels without features of nerve root impingement in the absence of axial loading.
67. Dr Wilding expressed the opinion that the plaintiff had sustained contusions to her back and neck, as well as having injured her right knee and right wrist in the fall. She noted that there had been a complete recovery from the neck injury which had been a mild strain, but noted that her lumbar symptoms were due to a disc lesion without frank prolapse, the MRI scan revealing evidence of degenerative change at the L5/S1 level, associated with a broad-based disc bulge.
68. Dr Wilding also expressed the view that it was difficult to arrive at a precise diagnosis for the plaintiff’s right knee symptoms and right wrist symptoms.
69. Dr Wilding also expressed the opinion that whilst the plaintiff continued to have to carry her two youngest children, this would aggravate her lower back symptoms. He also stated that because of the presence of degenerative changes in the plaintiff’s lumbar spine, she has a vulnerable back, and would be prone to episodes of low back discomfort in the future. At the time he saw her, he expressed the view that she was currently unfit for work which required prolonged stooping or bending or heavy lifting but she would be fit for sedentary duties, working 4 hours per day 5 days per week, where she could frequently alternate her posture. He supported a claim for 2 hours per week of domestic assistance for house cleaning, and 2 hours gardening assistance every 3 weeks.
Findings on injuries
70. Having reviewed the evidence of the plaintiff, together with the records of the initial assessment and treatment, and the commentaries by the various medical practitioners who have seen and assessed her, I am satisfied that the plaintiff has provided an accurate and reliable account of her injuries and the resultant disabilities that flowed from those injuries.
71. I find that when the plaintiff slipped and fell in the incident in question she twisted her right leg and knee, and then fell backwards, thereby injuring her back, and then hitting her head on the tiled floor. In this process she injured her neck, her right arm and wrist, as well as her right knee. She also sustained an injury to the left side of her abdomen in the fall, and experienced epigastric pain. She was upset and she was concerned over the welfare of her unborn child. Initially, her back injury could not be investigated radiologically, due to her pregnancy. Also, initially, she had temporary problems with left hip and left leg pains. She also experienced difficulty walking.
72. When she could be investigated with radiological studies of her lumbar spine, these revealed that she had posterior disc bulge at the level L4/5, with narrowing and dehydration of the L5/S1 disc. There was also a posterior bulge at that level, with the disc coming into “continuity” which I interpret to mean contiguity with the S1 nerve roots. In this regard, I accept the interpretations put forward by Dr Guirgis concerning these disc protrusions. The preponderance of the medical evidence, including the opinions of Dr Wilding, accepts that the plaintiff’s lumbar symptoms were due to the disc lesion.
73. Although the report of Dr Wilding referred to the presence of degenerative change in the lumbar spine, he did not suggest this was a pre-existing condition that arose independently of the injury suffered by the plaintiff. Nor did he suggest that the degenerative changes he described were not as a result of the injury sustained by the plaintiff. The plaintiff experienced no problems in this area before her injury.
74. Having considered the evidence of the plaintiff in the light of the medical reports tendered, I am satisfied that the described problems relate to the effects of the fall in question. I am also satisfied that the plaintiff’s account of the injuries and disabilities, as described in her evidence, is reliable. I have therefore drawn upon the summaries of the complaints as recorded in the various reports of the medical examiners in order to identify the full extent of her injuries and disabilities : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; s 60 of the Evidence Act 1995.
75. The plaintiff sought out medical consultations, took medication and pursued physiotherapy. In taking that course, I am satisfied that the plaintiff took reasonable steps to mitigate the effects of her injuries. Following the effluxion of time, the plaintiff has made a complete recovery from the injuries to her neck, her right wrist and to her right knee. However, she has been left with continuing low back pain and problems associated with her back injury. These problems essentially relate to and are influenced by her level of activity, and apart from resting when she experiences pain, and taking analgesic medications, there is little the plaintiff can do to ameliorate these problems.
Findings on remaining disabilities
76. The plaintiff has ongoing physical and psychological disabilities.
77. The physical problems that continue to beset the plaintiff principally relate to her lower back problem. She has demonstrable disc abnormalities in her lumbar spine. These produce mechanical back pain and right leg pain of varying intensity, depending upon her involvement in various activities. She experiences lower back pain with related pain that goes into her right leg. About 3 times per week this requires that she put her leg up and rest her leg. She stated that she experiences this about 3-4 times a day to the extent that she cannot do anything. She also experiences frequent numbness on the side of her right leg and in her right hip. She has been found to have tenderness in her back muscles with a restricted range of movements of her spine due to pain. She suffers from disturbed sleep patterns and daytime sleepiness and headaches. Because of her tiredness, she has reduced energy and motivation and this affects her moods. She also experiences reduced tolerance for standing, sitting, walking and driving. She finds that she can at times drive to the shops, but not always.
78. The problems that I have outlined as affecting the plaintiff also cause her difficulty in attending to her family responsibilities and caring for her children, including activities involving bathing them, because of difficulties with bending. The plaintiff also suffers from a reduced ability to perform commonplace household tasks such as cooking, cleaning and shopping. She is no longer able to prepare her traditional Lebanese cuisine due to difficulty standing for prolonged periods. This interrupts her meal preparation and she obtained assistance from her sister to complete such tasks.
79. The plaintiff also has a reduced exercise tolerance. Whereas before her injury she was able to walk for exercise about 30 minutes, she is now restricted to 10 minutes of walking before she experiences hip and lower back pain for which she requires rest.
80. The plaintiff’s residual physical problems have caused her to suffer emotional difficulties for which she has seen Dr Stephenson for psychiatric assistance. In this regard, the plaintiff gave the following evidence :
“Q. Why did you go and see Dr Stephenson?
A. I went to see her because during my fall and through my pregnancy, then giving birth and kids and my backaches, I couldn’t take it no more. I - every time I saw the kids cry and then I couldn’t go play with them, and every time they wanted to be held I couldn’t - sometimes I would hold them, sometimes I couldn’t hold them. Yeah, really bad. Like, I needed to speak to someone that I didn’t know, that wasn’t a family friend, or sister, or brother, I needed someone that I didn’t know that I can speak to.”
81. The plaintiff has stated that she is not well emotionally because she sees her life as being hard. She is not positive in her outlook for the future. In this regard, she stated that because of her experience of back pain, for the future “I see nothing”.
82. Dr Stephenson’s uncontradicted expert opinion was that the plaintiff suffered from chronic major depression, with a chronic pain disorder. She described these problems as being based on the plaintiff’s orthopaedic condition. I accept her opinions in this regard. The medical evidence does not suggest any short-term scope for improvement in the plaintiff’s physical condition, and the psychiatric prognosis remains uncertain.
83. The described physical and psychological problems which continue to afflict the plaintiff had been described as chronic, and I accept that description. These matters also have an impact on the plaintiff’s ability to work. This issue will be given consideration in connection with the assessment of the claim for loss of earning capacity and the claim for domestic and related assistance.
Effect of disabilities on domestic tasks and responsibilities
84. The plaintiff stated that whereas before her injury she was an active person, she now requires assistance with commonplace domestic tasks, including shopping, cooking, cleaning, some of the tasks of maintaining a home, and with aspects of childcare.
85. She stated that her back starts to hurt her when she moves about and performs activities. She described having to drop whatever she was doing and rest and relax to alleviate her back pain. She had difficulty driving long distances. She said that she experienced exhaustion after dropping her children off at school in the mornings. She stated that at times she has difficulty in attending to the feeding of her children. She stated that because of her back condition, she would not be able to look after a family home without assistance.
86. The plaintiff stated that she has received the assistance of her sister and her mother-in-law with regard to her household duties such as meal preparation, cleaning, vacuuming, tidying and with regard to the care needs of her children. She stated that she cannot maintain standing activities, although she does as much as she can, but nevertheless she still needed help with these duties.
87. She described receiving assistance from her older sister who came to assist her 2-3 times a week between 11.00am and 2.00pm, that is for between 6 and 9 hours per week. Whilst the plaintiff acknowledged that some of this time involved her sister socialising with her, I accept the plaintiff’s evidence that most of the time, her sister was cleaning, taking the children to the park for her, playing with the children, changing their clothes and nappies and the like, because she was unable to do so because of her back pain. I also note and accept that her sister provided her with some assistance with driving and shopping.
88. The plaintiff also described receiving assistance from her mother-in-law with childcare for 2 hours per day. Such activities involved keeping the children occupied by playing with them, feeding, bathing and dressing them.
89. The plaintiff’s mother-in-law Mrs Zreika, and her sisters Mrs Kalal and Mrs Moukhaiber, gave evidence that was corroborative of the plaintiff’s evidence concerning the domestic assistance which had been provided to the plaintiff since her injury.
90. The plaintiff’s mother-in-law Mrs Zreika confirmed that before her injury, the plaintiff carried out normal domestic activities around the home, including looking after her children whereas after the injury, she always complained of pain in her back and an inability to do things, which I infer from the context to mean housework and caring for the children.
91. As a result, Mrs Zreika began to visit the plaintiff more frequently after her injury in order to help her. Initially, this assistance was almost daily for a few weeks but was then cut down to 3 days per week for 4 hours in the mornings, between 10.00am and 2.00pm, and then for about 2 hours, or sometimes more, in the evenings, amounting to about 18 hours per week. This assistance comprised cooking Lebanese cuisine for her family, an activity which was time consuming, cleaning the whole house, feeding the children, helping with bathing them and putting them to sleep. Mrs Zreika provided this assistance from shortly after the plaintiff’s injury in March 2008 until December 2008, when the plaintiff moved from Auburn which is the area near where Mrs Zreika lived. This assistance from Mrs Zreika amounted to about 18 hours per week for about 8 months. At that time the plaintiff lived around the corner from Mrs Zreika, before she moved to live with her sister’s family in Guildford in December 2008.
92. The plaintiff’s sisters have also provided her with domestic assistance after her injury. This was in addition to the assistance that was provided by Mrs Zreika.
93. Whilst the plaintiff lived in Auburn, her sister Mrs Kalal used to travel from Liverpool in order to visit and to help with activities such as washing and the like because, whilst pregnant and in her injured state, the plaintiff could not hold heavy washing. Mrs Kalal used to attend at the plaintiff’s home in Auburn on most days, and sometimes 6 days per week for 3 hours between 4.00pm and 7.00pm. She was also involved in helping with feeding the plaintiff’s children, bathing them and readying them to go to bed, washing and hanging clothes. Over the 8 months between March and December 2008, this assistance amounted to about 18 hours per week.
94. The foregoing evidence reveals that between March 2008 and December 2008, between Mrs Zreika and Mrs Kalal, the plaintiff was assisted with domestic and childcare activities to the extent of between 36 hours and 42 hours per week, 18 of which were provided by Mrs Zreika, and up to 24 of which were provided by Mrs Kalal and her other sister Mrs Moukhaiber if there were tasks still left to be done.
95. In about January 2009 the plaintiff and her children moved from Auburn to live in the house rented by Mrs Kalal and her family in Guildford. Since that time Mrs Kalal, and at times her husband, have continued to provide assistance to the plaintiff on a daily basis because of limitations the plaintiff experiences with her back, including difficulty with bending and picking things up, these being tasks for which she requests help. Mrs Kalal said she also does all of the plaintiff’s shopping. I infer from the plaintiff’s restricted abilities and the nature of the tasks required of her, that she continued to receive assistance of the kind and to the levels earlier described.
96. The plaintiff’s sister Mrs Moukhaiber gave unchallenged evidence about changes in the plaintiff’s pre-injury situation in the following terms:
“A. Before the accident, she's very - when it comes to her house and her kids, her house is always clean and tidy. She's always cleaning. Never had a problem; like her kids, always - everything's done spic and span and that. After her operation - not operation, the accident, not very good. She was always in pain, her housework was always lacking, her kids weren't as, you know, they were before, yep.”
97. Mrs Moukhaiber stated that after the plaintiff’s injury she too helped the plaintiff with domestic activities, including cleaning, food preparation, taking care of the needs of the children, including feeding, washing, dressing them and whatever else was needed. There was no pattern or regularity with which she performed these tasks, she simply pitched in and assisted when needed, that is, if no-one else had attended to them. This assistance was provided to the plaintiff in addition to the assistance provided by Mrs Kalal.
98. The evidence does not permit a precise analysis of the assistance provided to the plaintiff for the purpose of running her household and those tasks that are specifically referrable to the needs of the plaintiff’s children. What is clear however, is that the plaintiff is restricted in her activities and those restrictions adversely impact upon her ability to attend to domestic tasks and the care of her children such that since her injury she requires assistance in this regard.
99. Mrs Moukhaiber stated that she has observed the plaintiff’s post-injury problems to have remained unchanged, or maybe to have worsened. She stated that on her observation, the plaintiff spends a lot of time lying down. Mrs Moukhaiber’s evidence was not challenged by the defendant and she was not cross-examined.
100. This evidence leads me to the view that since the plaintiff’s move from Auburn to Guildford in January 2009, she continued to receive the same levels of assistance, to the order of about 36 hours per week if not more, but her sisters have taken over the tasks previously undertaken by Mrs Zreika due to the change in the plaintiff’s location.
101. Having regard to the descriptions emerging from the above evidence, I am satisfied that over the period since her injury, the plaintiff received a combination of about 36 hours per week of gratuitous attendant care services and childcare because she was unable to carry out these tasks herself as a result of her injuries. A question to be determined is how much of these services could be reasonably attributed to the effects of the plaintiff’s injury. A further question arises as to how these services should be apportioned between attendant care services and childcare.
102. As to the future, the plaintiff also stated that because she cannot do much in the house due to her back and leg pain, she would probably need about 3-4 hours of assistance per day to carry out domestic tasks. She stated that just in relation to the house, she would need about 2 hours of assistance 3 times a week, namely 6 hours per week. She also stated that she would be unable to manage the yard of a home because of the pushing and bending movements that would be required. She said that she required assistance in that regard. With regard to the lawnmowing activity, in the past the plaintiff’s husband had paid a family friend to attend to these tasks.
C. FINDINGS ON LIABILITY ISSUES
103. In the paragraphs that follow, I set out my findings on the liability issues that call for decision.
Consideration of Issue 1 – The scope of the duty of care owed
104. There can be no issue that the defendant owed the plaintiff a relevant duty of care as the circumstances under consideration clearly gave rise to an obvious duty of care : Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13].
105. That said, the defendant submitted that, subject to the requirements of s 5B of the CL Act, the scope of the duty of care owed to the plaintiff was of a limited nature that did not extend to making the premises as safe as reasonable care could make them : Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 per Gaudron J at [92]. The plaintiff did not submit otherwise.
106. The defendant’s submissions conceded that the relevant duty owed to the plaintiff required that the defendant take reasonable care to protect entrants onto the premises from risks that could be foreseen and avoided : Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA at [90], citing Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614 at page 663, to the effect that the measure of the discharge of that duty was what a reasonable person would, in the circumstances, do by way of response to becoming aware of a risk that was foreseeable : Stojan (No 9) Pty Ltd, at [90].
Consideration of Issue 2 – Breach of duty of care
107. A conventional common law analysis for determining whether negligence has been established requires an application of the test formulated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40, at [90]; page 48; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [18]. That analysis must proceed in conjunction with the requirements of s 5B of the CL Act.
108. The question of whether the defendant acted reasonably so as to discharge the duty of care it owed to the plaintiff is a matter that must be evaluated according to the circumstances of the case : Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at pp 487 to 488 per Mason, Wilson, Deane and Dawson JJ. The analysis of this question must proceed prospectively : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, per Hayne J at [126], page 46. The analysis must also proceed in accordance with the requirements of s 5B of the CL Act. This requires a contextual and balanced assessment of the reasonable response to a foreseeable risk, not the more stringent test of prevention : Dederer at [69].
109. The requirement in s 5B (1)(b) of the CL Act is that for negligence to be established, a risk must be assessed to be “not insignificant”. This has been determined to involve a slightly more demanding test than that required by an application of Shirt, Shaw v Thomas [2010] NSWCA 169 per Macfarlan JA at [44].
110. The analysis that follows proceeds upon the foregoing principles.
111. The defendant submitted that it had satisfactorily discharged the duty of care it owed to the plaintiff, and it was therefore not negligent because it had a system in place which resulted in the defendant examining the scene of the plaintiff’s injury only some 15 minutes before the plaintiff was injured, at which time the floor area where the plaintiff fell was determined to have been clean and patently safe.
112. In contrast, the plaintiff relied upon the evidence of Mrs Shabbir and Mrs Sharma, to the effect that some time well before the plaintiff fell, the spillage in question was reported to an employee of the defendant. The plaintiff argued that the failure of the defendant’s staff to clean up this spillage in a timely manner in circumstances where the spillage had already been reported to the defendant, established a relevant breach of duty of care in this case.
113. In answer to that proposition, the defendant argued that just because the reported spillage had not been cleaned up, this did not necessarily establish a breach of duty of care in this case because some 15 minutes before the incident, the floor was inspected and determined to be apparently clean and safe. That submission was based upon the content of Exhibit “C” in circumstances where the author of that document was not called, and it was unclear as to who was the primary source of the commentary within the document, and where, it seems to me that the particular aspect of the content of the exhibit that was relied upon by the defendant was not supported by the evidence of Mrs Shabbir and Mrs Sharma, whose evidence I accept.
114. I have considered the evidence of Mrs Shabbir and Mrs Sharma in conjunction with the content of Exhibit “C”. Whilst that document could give the impression that the store manager, Mr Bilbe, had inspected the floor area in question about 15 minutes before the incident and found the area to be safe and clean, that was not the impression I gained from the evidence of Mrs Shabbir and Mrs Sharma. In reconciling these two differing bodies of evidence I have preferred the evidence of Mrs Shabbir and Mrs Sharma to the account contained in Exhibit “C” because their evidence seemed to me to be inherently credible and truthful, and the content of the document comprising Exhibit “C”, was open to differing interpretations. One such interpretation was that the content of the document was based on untested hearsay, as the account in the document did not actually assert that Mr Bilbe had personally inspected the area in question, and to the effect that was stated.
115. Furthermore, I prefer the evidence of the plaintiff to the effect that the incident occurred at around 3.00pm. Exhibit “C” suggests that the area in question had been inspected at about 3.45pm, the suggestion being the incident occurred about 15 minutes later. In my view, accepting the evidence of the plaintiff, which was not inherently or glaringly improbable, and in the absence of evidence explaining how Exhibit “C” had been compiled, I consider it is unlikely that the incident occurred some 15 minutes after 3.45pm.
116. After the incident the plaintiff was helped to her feet, taken to the fitting room to sit down for a while. After being given assistance there, including being given a glass of water, she was then taken to the manager’s office where she was further assisted and some formalities were then attended to. In these events her husband was also summoned and he appeared. During the passage of this time, Mrs Shabbir had the conversation with the store manager, as she had described. I have no doubt that all of this took some little time. There is no evidence as to when, during these events the ambulance was called to take the plaintiff to hospital.
117. The ambulance report in the hospital records shows the ambulance as having been booked at 4.02pm, arriving at the scene at 4.15pm, attending to the plaintiff at 4.18pm and leaving the scene at 4.32pm to take the plaintiff to the hospital.
118. The described sequence of events leads me to doubt the accuracy of Exhibit “C” as to the suggested timing of the incident being 15 minutes after 3.45pm. Mr Bilbe was not called to give evidence to clarify the timing of the sequence of events. Given the described sequence of events I consider it improbable that the incident occurred at 4.00pm and the ambulance was then called at 4.02pm. I consider it more likely that some significant time had passed before the ambulance was called, during which time attempts were made to assist and calm the plaintiff who was upset. I prefer the evidence of the plaintiff as to the timing of the incident being at about or a little after 3.00pm instead of after 3.45pm which was the time suggested by Exhibit “C”.
119. As to the sequence of events that occurred before the plaintiff’s fall, it is plain from the evidence that someone had spilt some water on the floor of the aisle in question, and that this had rendered the surface area of the tiled floor more slippery than it might otherwise have been. This is apparent from the evidence of Mrs Sharma, whose evidence I accept, that she almost slipped on the wet area when she walked over it. It is also plain that Mrs Shabbir informed an employee of the defendant of the spillage, and that staff member acknowledged that she had been so informed.
120. It is plain from the evidence of Mrs Shabbir, whose evidence I accept, that the staff member in question, whom she had informed of the fact of the spillage, took no immediate steps to seek to isolate the spillage pending making arrangements for cleaning up the spillage. This is clear from the evidence of Mrs Shabbir who then remained in the vicinity of the spillage for 5-10 minutes to ensure no-one else stepped into the water.
121. It is also plain from the evidence of these witnesses, that by the time that staff member in question was spoken to by Mrs Shabbir for a second time about the continued presence of the spillage, no action had been taken to clean up or isolate the spillage. This meant that when, some 5-10 minutes, later, which appears to have been some 10-20 minutes after Mrs Sharma had initially seen the spillage and after it had first been reported to the staff member, the water spillage still remained unattended on the floor when the plaintiff slipped and fell.
122. In my view, these circumstances demonstrate that there was a breach of duty of care on the part of the defendant. In my view it was reasonably foreseeable that someone such as the plaintiff on the premises would be liable to slip and to fall on a wet floor in these circumstances. This was because, as a customer walking in an aisle towards a cash register to pay for a purchase, she would be expected to be proceeding to the check out area, and in doing so, would not necessarily notice the presence of spillage on the floor. It is noteworthy that the defendant has not pleaded any allegations of contributory negligence against the plaintiff.
123. In my view, once the defendant’s employee had been made aware of the presence of the spillage, from a customer safety perspective, it became important to ensure that the spillage in question was promptly isolated so that customers would not walk on that area until it was cleaned up. Instead, the subsequent explanation of the defendant’s employee for not having arranged to clean up the spillage was to acknowledge that she had been told about the spill and of the need to arrange to have it wiped up, but that she “totally forgot” about it. In this regard I accept the evidence of Mrs Shabbir and Mrs Sharma.
124. In my view, that inaction of the defendant’s employee in forgetting about the spillage, and in going about her other tasks instead of attending to the need to have the spillage promptly isolated and wiped up, amounted to a breach of the duty of care owed to the plaintiff by the defendant according to accepted common law principles.
125. In my view, the presence of water spilt on the floor of the premises, as was the case here, in circumstances where an employee of the occupier of those premises had been made aware of the spillage, as was the case here, constituted a foreseeable and “not insignificant” risk that a person such as the plaintiff, might slip and fall whilst walking into the area where water had been spilt : s 5B(1)(a) and S 5B(1)(c) of the CL Act.
126. In my view, in these circumstances, the defendant’s employee who had been informed by Mrs Shabbir that there was a wet area of the floor, was required to promptly take precautions against the materialisation of the risk that someone might slip and fall on that wet area. In my view, a reasonable person in the position of that employee would have taken precautions against that risk : s 5B(1)(c) of the CL Act.
127. I consider that in the circumstances, the need to take precautions was required because if precautions were not taken, there was a high probability that someone would slip and fall whilst traversing the area, and thereby suffer relevant harm : s 5B (2)(a) of the CL Act. Furthermore, I consider that the type of harm that could foreseeably result from such a slip and fall was within a range of possible outcomes that could well involve serious injury : s 5B (2)(b) of the CL Act.
128. In these circumstances, I consider that the burden on the defendant involved in taking precautions to avoid the risk of harm occurring was of a relatively low order : s 5B (2)(c) of the CL Act.
129. I consider this is so because all that the employee of the defendant had to do on being informed of the presence of the wet area of the floor, was to simply go to the location in question which was nearby, in order to inspect it and make an assessment of the risk. This is not a hindsight judgment. It was a step that was reasonably necessary at the time in order to determine what, if anything, was to be done next in connection with the presence of the reported wet area on the floor. This was the basic response that was required along the way toward discharging the duty of care owed to the plaintiff. Unfortunately, this was not done. In contrast, the uncontroverted evidence, which I accept, was that the employee in question had neglected to go to the area that had been identified to her by Mrs Shabbir, and as a result the required inspection did not take place, thus permitting the risk to remain unabated.
130. In my view, an observation of the kind I have outlined, and which was open to the defendant’s employee, was one which a reasonable person in the position of that employee of the defendant, acting reasonably, ought to have pursued. Had the defendant’s employee gone to the scene she would not only have confirmed the observations made by Mrs Shabbir and Mrs Sharma to the effect that the floor was wet, but that employee would also have recognised that precautionary steps were required to address the risks posed by the presence of water on the tiled floor.
131. I infer this would have been so from the terms of Exhibit “D”, which contained the detail of the defendant’s basic procedures and instructions for dealing with spillages. This required that spillages not be left unattended, but should be cleaned immediately. That document recognised the potential hazard posed by spillages on floors, and that floors were required to be kept clean, dry and clear.
132. I consider that the employee of the defendant who had been spoken to by Mrs Shabbir ought to have taken precautions of an elementary nature. These included the need to guard or isolate the area of the spillage until assistance was obtained for a clean-up of the spillage to be arranged and effected.
133. The defendant’s employee received the relevant information from Mrs Shabbir in the course of her employment. In the circumstances under consideration, I consider that the defendant’s employee ought to have promptly attended to the initial assessment of the spillage in the interests of customer safety. In my view, this also required that the employee summon assistance to either effect a clean up of the spillage or to arrange for a barricade to be brought to the area so as to close the area off from customer access if there was an anticipated delay in achieving a clean-up of the spillage.
134. In my view, none of these suggested measures would have represented a significant burden on the defendant, or a significant cost drain on its resources in the circumstances : s 5B(2)(c) of the CL Act. Either way, according to Exhibit “D”, and on a commonsense analysis, the wet floor should not have been left unattended so that customers would be exposed to the risk of walking unimpeded into the wet area without a warning of the presence of the hazard posed by the spillage.
135. In my view Exhibit “D” provides ample evidence of the fact that there was no relevant burden on the defendant in taking precautions against the risk. That exhibit set out for the information of the defendant’s employees, a basic system of training for dealing with spillages. The procedures described in that exhibit are a self-evident testament to the non-burdensome nature of the precautions that I have reviewed, and which I consider to have been warranted in the circumstances.
136. The final CL Act requirement that I must take into account in the course of this evaluation is a consideration of the social utility that created the risk in question. There is an obvious social benefit in having a retail store of the kind operated by the defendant in this instance. However, there was no social utility in allowing a spillage of water to remain on the floor in such retail premises where it was likely and intended that customers would be walking in that area of the premises: s 5B(2)(d) of the CL Act.
137. In the light of the foregoing analysis, I am satisfied that by her acknowledged inaction, as was overheard by the plaintiff, the employee of the defendant, who had been informed by Mrs Shabbir of the fact of the spillage, was in breach of the duty of care owed to the plaintiff, and that such breach of duty amounted to negligence for which the defendant is vicariously liable. Accordingly, I find that the defendant was negligent in the circumstances that led to the plaintiff’s injury. The question of causation therefore remains to be considered.
Consideration of Issue 3 – Causation
138. For liability to be established against the defendant, the plaintiff must demonstrate that the negligence of the defendant had either caused, or materially contributed to, her injury : s 5D of the CL Act.
139. That section first requires that the plaintiff establish factual causation, namely that the defendant’s negligence was a necessary condition of the occurrence of the harm suffered by her, and secondly, that in the circumstances under consideration, it is appropriate for the scope of the negligent party’s liability to extend to the harm so caused.
140. On behalf of the defendant, Mr Ronzani submitted that the facts of this case did not provide an appropriate basis for a causation finding in favour of the plaintiff. For the reasons that follow, I do not accept that submission.
141. First, with regard to factual causation, it is salient to observe that the negligence I have found to have occurred, was a necessary condition for the harm suffered by the plaintiff. In this regard, I find that it was most unlikely that the plaintiff would have slipped, fallen and sustained injury whilst walking within the area of the aisle in question were it not for such negligence : s 5D (1)(a) of the CL Act. There was no suggestion that the plaintiff was not taking care for her own safety and no allegations of contributory negligence have been pleaded against her.
142. Secondly, I consider that it is only appropriate that the scope of the defendant’s liability extend to the harm occasioned to the plaintiff : s 5D(1)(b) of the CL Act. I consider this to be so because the defendant operated a retail store at the premises for commercial purposes, and it is only reasonable that, as the occupier of the premises, it should be subject to the duty of care that I have found was owed to its customers, including the plaintiff.
143. Accordingly, I find that the plaintiff has satisfied the legal requirements for establishing causation in these proceedings.
D. ASSESSMENT OF DAMAGES
144. In the paragraphs that follow, after dealing with the plaintiff’s probable future life span, which is relevant to the assessment of some aspects of her claim for future damages, I set out my assessment with respect to each of the heads of damage claimed by the plaintiff.
Plaintiff’s probable life span
145. An assessment of the plaintiff’s entitlement to future damages first requires an assessment of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 27, this being the plaintiff’s age at trial and, in the absence of any medical or other evidence suggesting the plaintiff may have a decreased life span, I assess the plaintiff’s life expectancy, which is by definition a statistical estimate or average, to be in the rounded down figure of a remaining 61 years.
Non-economic loss
146. The plaintiff submitted that an assessment of non-economic loss would be at least 35 per cent of a most extreme case, as assessed in accordance with s 16(2) of the CL Act. The defendant submitted that an appropriate assessment of damages for non-economic loss would be 24 per cent of a most extreme case.
147. In considering the submissions of the parties on the issue of non-economic loss, I have had regard to the detail of the plaintiff’s injuries, the nature and detail of the treatment she has undergone and the effect that all of this has had, and will continue to have upon her, in the form of the remaining physical, and psychological disabilities which I have already outlined in my findings.
189. The evidence reveals that the plaintiff’s husband had paid a family friend to do the lawnmowing both before and after the plaintiff’s injury. There was no evidence of the cost that was paid for those services. Whilst there was evidence that the plaintiff could not attend to yard maintenance or gardening/lawnmowing activities, I am not satisfied that the expense claimed in respect of gardening and lawnmowing is injury related and would not have been incurred in any event. I am therefore not persuaded that the plaintiff has proven her claim for this aspect of past paid care. Accordingly, I make no allowance in damages for this claimed head of damage.
Past gratuitous care
190. The plaintiff has made a claim for the value of past gratuitous attendant care provided to her by family members for the period 2 March 2008 until the commencement of the trial on 21 July 2010. The claim was for 10 hours per week at the average rate of $22 per hour over 125 weeks, totalling $27,500. The plaintiff claimed that these services were aimed at alleviating the consequences of her injury : s 15(1)(c) of the CL Act.
191. In contrast, the defendant submitted that no allowance should be made in respect of past gratuitous attendant care services.
192. In summary, the evidence in support of the plaintiff’s claim was that in combination, between the efforts of her mother-in-law and her two sisters, between the time of her injury and the time of the trial, she has been provided with such services for commonplace domestic tasks comprising housework and housekeeping services as well as in relation to the care of her children. I shall deal with the claim with respect to the needs of the children separately.
193. I have accepted that these services were provided to the plaintiff and I accept that these services were necessary as a consequence of her injury related disabilities. I also find that with the exception of one aspect of the plaintiff’s situation which was to do with her pregnancy, and to which I shall shortly refer, these services would not have been provided to the plaintiff in the ordinary course of events absent the fact of the injury in question : s 15(2) of the CL Act.
194. Based on the combined evidence of the plaintiff, her mother-in-law and her sisters, I accept that in the period up to the trial, these services were provided to the plaintiff to the extent of at least 36 hours per week and at times more, which satisfies the minimum threshold for the award of damages for such services, as required by s 15(3) of the CL Act.
195. The plaintiff’s claim in this regard is generally supported by the medical reports. Dr Wilding supported a claim for domestic assistance for cleaning, as well as for lawnmowing and gardening, but not to the extent of the hours claimed. Dr Akladious noted the plaintiff had difficulty with household, domestic and childcare activities. Dr Guirgis supported a claim for home help for heavier home chores for 9 hours per week. Dr Davis supported a claim for domestic assistance of at least 24 hours per week reducing to 16 hours per week until the youngest child reaches the age of 16 years, then reducing to 8 hours per week on a continuing basis. Dr Deveridge supported a claim for 9 hours per week of domestic home care, continuing indefinitely.
196. In my view this array of medical opinions as to the medical basis of the need, when taken together with the evidence of the plaintiff, her sisters and her mother-in-law as to the practical tasks involved, provides useful background guidance for the assessment of the quantum of the plaintiff’s reasonable need for such assistance, for both as to the past and for the future.
197. In identifying the hours of assistance for quantification, it must be recognised that there is some scope for over-estimation and overlap on account of the operation of several factors.
198. These factors include a social component of companionship to some small degree that was implicit within the hours of assistance by the plaintiff’s sisters, although this was said to have been the subject of an inbuilt allowance in the evidence, indicating that the assistance was efficiently provided by her sisters at the same time. Another factor that requires consideration is the co-extensive and separate claim made for damages pursuant to s 15B of the CL Act in respect of services provided to the plaintiff’s dependant children. A further discounting factor was the plaintiff’s probable need for a degree of such assistance in any event in the final weeks of her pregnancy, and for a short time into the post-partum period.
199. On a consideration of these factors, excluding some hours for childcare factors which are the subject of a separate claim, and rounding down the remaining hours to allow for the possibility of a social component of the assistance that was provided, and which should not be reasonably visited upon the defendant, I consider that the evidence discloses that the claim for gratuitous attendant care services of a domestic nature and unrelated to childcare, should be reasonably assessed at 10 hours per week, as was claimed by the plaintiff. This necessarily involves an arbitrary division between services of a domestic nature and childcare services, but I consider the allocation of 10 hours per week to domestic care services to be reasonable in the circumstances and on the evidence.
200. Noting that any assessment must not exceed the rate prescribed by statute, the table that appears as Appendix I to these reasons sets out the calculation required by s 15(4) of the CL Act in respect of 10 hours per week, in the amount of $29,232.07.
201. Having regard to the fact that the plaintiff was in her eighth month of pregnancy at the time of her injury, and that in the ordinary course, absent her injury, she would have ordinarily been expected to have required a measure of domestic assistance in the final few weeks of her pregnancy and in the early weeks of the post-partum period whilst she primarily attended to the needs of her newborn child, I consider it appropriate to apply a small measure of discount to the figures set out in Appendix I.
202. In my view, that discount should be for a total of about 12 weeks, and it should operate by way of an offset to the claim made for gratuitous assistance in that period because I consider that the plaintiff would have required such assistance in that period in any event even if she had not been injured : s 15B(2) of the CL Act. In round figures, this offset results in a reduced calculation of $26,500.
203. Accordingly, I assess the plaintiff’s entitlement to damages for the value of past gratuitous services of a domestic nature that have been provided to her by family members, in the rounded down sum of $26,500.
Future domestic assistance
204. The plaintiff has made a claim for the reasonable commercial cost of future paid care at an average of 3 hours per week over the remaining life span, costed at $35 per hour. The projection of the claim of 3 hours per week at $35 per hour, or $105 per week, over 61 years (x 1014.9) yields $106,564.50.
205. In contrast, the defendant has submitted that the claim for future paid care should be assessed at $42,500. The basis of that submission was that the claim should be limited to a period of 14 years between 2010 and 2024, until the plaintiff’s youngest child leaves school. The defendant concedes 2 hours per week paid care at $30 per hour or $60 per week which, when projected over 14 years at 5 per cent (x 529.3) yields the amount of $31,758. This amount is different from the conceded figure of $42,500 and is either a rounding up of that amount, or a mathematical error in the submission.
206. These contrasting positions require an evaluation of the evidence. In my view there is no substantive difference between the two submitted hourly rates, but for fairness, I will utilise an average of the two rates, namely $32.50 per hour.
207. In evaluating the respective submissions of the parties it is plain that the defendant’s submission links the issue of future domestic assistance and the issue of childcare whereas the plaintiff’s submissions separate the two components as required by ss 15 and 15B of the CL Act
208. Having regard to the medical opinions of Dr Davis and others, whose opinions I accept as being reasonable, that the plaintiff has an injury-based need for future domestic assistance on a continuing basis, I consider that the plaintiff’s claim for 3 hours per week of such assistance as an average over her remaining life span, is a reasonable one. I consider this to be particularly so in view of Dr Davis’ estimate of a greater number of hours namely, 8 hours per week, excluding childcare issues. I also consider the plaintiff’s claim to be reasonable in light of the evidence of the plaintiff’s sisters as to the nature and extent of the services that have been provided to date, including the time taken for the provision of the services under consideration.
209. On my analysis, subject to the lesser hourly rate for calculation, I consider that the amount claimed by the plaintiff is reasonable and I accept it as such. I do not consider the projected sum requires discount because it already assumes mortality, which is the major adverse vicissitude, and there is the possibility that the plaintiff’s condition will worsen, which may then indicate that a higher level of assistance could be required. This is a potential vicissitude that could operate against the interests of the defendant. I also note that within the sum I have allowed, no separate component has been included for future lawnmowing and gardening costs.
210. The projection of 3 hours per week at $32.50 per hour, or $97.50 per week, at 5 per cent over 41 years (x 1014.9) yields the sum of $98,952.
211. Accordingly, I assess the plaintiff’s entitlement to damages for the probable cost of future paid care in the amount of $98,952.
Past childcare – s 15B CL Act
212. The plaintiff makes a claim for the value of past gratuitous domestic services for childcare that have been provided for the benefit of her dependent children by her own two sisters and by the paternal grandmother of her children. The claim proceeds upon the premise that as a consequence of her injury she has been, and continues to be, unable to fulfil her childcare responsibilities : s 15B of the CL Act.
213. The plaintiff’s claim for the value of the past childcare services that have been provided between 2 March 2008 and 21 July 2010 is in the amount of $44,000. That calculation assumed the provision of childcare services to the plaintiff’s children for 16 hours per week, costed at an averaged rate of $22 per hour over 125 weeks. It appears that the incorrect hourly rate has been used in that calculation. The defendant disputed any entitlement of the plaintiff for any such damages as contemplated by the provisions of s 15B.
214. The principles that are applicable to claims for damages of the kind contemplated by s 15B are well settled, and have been applied in other cases : Liverpool City Council v Altaf Laskar [2010] NSWCA 52; Amaca Pty Ltd v Novek [2009] NSWCA 50; Ehlefeldt v Rowan-Kelly [2009] NSWSC 331.
215. An assessment of damages under s 15B is concerned with compensation for the loss of the capacity to provide domestic services to dependent children, where those services are provided by someone in the stead of the plaintiff. The assessment of such damages is not directed at the alleviation of the plaintiff’s injuries : Liverpool City Council v Altaf Laskar, per Whealy J at [54].
216. There is no doubt that the plaintiff’s children were dependent upon her for the provision of the claimed services, and could not themselves pursue damages for the services in question : Amaca Pty Ltd v Novek, per Campbell JA at [45]-[46], [83], and s 15B(11)(b) of the CL Act.
217. At the time of the hearing, the plaintiff’s children were aged 6 years, 3 years and 2 years. Her 3 year old son has special needs because of a congenital pedal abnormality. This has required special care and additional parenting attention.
218. In the context of the very young ages of the plaintiff’s children, I consider that the nature and extent of the services that were provided to the children, as was described in the evidence of the plaintiff, Mrs Zreika, Mrs Kalal and Mrs Moukhaiber, which evidence I accept, was reasonable in all the circumstances : Amaca Pty Ltd v Novek, per Campbell JA at [52].
219. I consider this to be the case because it is generally well understood, without the need for specific evidence, that children of such young ages need to be fed, bathed, dressed and have their related ancillary needs catered for in the course of the day-to-day care that is from time-to-time provided to them by a parent.
220. I have accepted that as a result of her injury, the plaintiff has experienced difficulty with the discharge of her domestic responsibilities towards her children. The affected activities involved the feeding, bathing, and dressing of her children and the ancillary tasks that related to these activities, which the plaintiff had no difficulty carrying out for her children before her injury.
221. I accept that those described difficulties, which also included an inadvisability on the plaintiff’s part to engage in movements of a kind which required her to repeatedly lift, bend, carry, twist, and stoop, interfered with the plaintiff’s ability to fulfil her responsibilities as the primary carer of her three children. As a consequence, these activities were to a significant extent, taken up and carried out by the plaintiff’s mother-in-law and the plaintiff’s two sisters. The inadvisability of the plaintiff engaging in the activities to which I have referred, arose not only from the plaintiff’s own evidence, but also arose from the preponderance of the medical evidence which I have already accepted in this case.
222. The question of whether the services provided by Mrs Zreika, Mrs Kalal and Mrs Moukhaiber were of a kind that benefited ineligible persons, was not explored in any detail in the evidence such as would permit a reasoned dissection to enable a precise apportionment, for example, in respect of other members of Mrs Kalal’s household in Guildford, where the plaintiff and her children have lived since January 2009. In these circumstances, in fairness to the defendant in this case, I will approach such apportionment according to what I consider to be just and reasonable in the circumstances, even though, strictly speaking, this exercise is not one that is mandated by s 15B(11)(b) : Amaca Pty Ltd v Novek, per Campbell JA at [101].
223. The evidence reveals that the hours of care provided to the children by Mrs Zreika and by the plaintiff’s sisters was of the order of 18 to 24 hours per week. Although it may appear arbitrary to make a reduction in those hours, on the state of the evidence I consider that the requirements of reasonableness indicate that there be a discount or reduction on these hours to reflect the fact that some of the time that has been identified may not have been spent in providing hands-on care and some of the time may have overlapped with childcare for other members of the family of Mrs Kalal. On this approach, I consider that 16 hours per week, or a little over 2 hours per day, shared between the plaintiff’s 3 young and growing children, represents an inherently reasonable assessment.
224. I now turn to a consideration of the reasonableness of the childcare services being provided in the plaintiff’s circumstances. In my view, for the reasons that follow, the circumstances of the case fulfil the statutory requirements that operate as a precondition for an award of damages of the kind sought by the plaintiff.
225. First, I infer from the ages of the children, that in the period up to the time of the hearing, they were not independent but were in fact dependent upon the plaintiff for their day-to-day care : s 15B(2)(a) of the CL Act. I am also satisfied that with respect to her youngest child, at the time of the injury when the plaintiff was pregnant with that child, the natural and probable expectation was that but for her injury, the plaintiff would have been expected to provide that child with childcare services.
226. Secondly, in the ordinary course of events, had the plaintiff not been injured, the childcare services, of the kind supplied by the plaintiff’s mother-in-law and the plaintiff’s two sisters, would have been required to have been supplied by the plaintiff : s 15B(2)(a) of the CL Act.
227. Thirdly, I am satisfied that, by reason of their ages, none of the plaintiff’s 3 children were capable of performing the services themselves. On behalf of the defendant, it was not suggested otherwise : s 15B(2)(b) of the CL Act.
228. Fourthly, I am satisfied that as the parent of the 3 children concerned, there was a reasonable expectation that but for the plaintiff’s injury, the plaintiff would have provided the described services to her children for at least 6 hours per week and for a period of at least 6 consecutive months : s 15B(2)(c) of the CL Act. I infer this from the descriptions given in evidence by the plaintiff, Mrs Zreika, Mrs Kalal and Mrs Moukhaiber.
229. Fifthly, I consider that there was a proven need on the part of each of the 3 children of the plaintiff for the provision of the services which have been described and claimed by the plaintiff : s 15B(2)(d) of the CL Act. That need was for care in all the known incidents of child-rearing where the plaintiff is unable to fulfil all the required physical tasks. In this regard, I find that this need has continued over the period claimed and will continue into the future.
230. On being satisfied that the services in question here were necessarily provided to the plaintiff’s children by the plaintiff’s sisters and by her mother-in-law, it becomes necessary to form an assessment of whether the claimed 16 hours per week fairly represents the time that was reasonably provided and needed to be provided to the children in order to address their reasonable needs, those needs involving the physical tasks that the plaintiff was unable to, or was ill-advised to perform.
231. I have already recorded my own impression from the oral evidence, that the claimed 16 hours per week seemed to me to be inherently reasonable for what was obviously involved with respect to the combined care of the 3 children, and which has been described in the evidence.
232. Apart from the matters raised in the oral evidence of the plaintiff, her sisters and her mother-in-law, no other factual evidence was called to quantify the hours claimed with respect to the provision of such services.
233. Over the objection of the defendant, the plaintiff tendered and sought to rely upon a statistics-based analysis comprising the Australian Bureau of Statistics publication dated March 2009, entitled Trends in Household Work. I admitted that document into evidence as I considered that statistical evidence had some relevance to the formation of an assessment. However, on a closer evaluation, in the context of this case, I consider that without expert interpretation of its contents through evidence, that document is of limited utility for the exercise under consideration.
234. In coming to the view that the claimed sum of 16 hours per week was inherently reasonable in the circumstances, I have had regard to the separately assessed claim for past gratuitous domestic services generally, to the separate nature of the services involved in that claim, and to the fact that the assessment of that claim has proceeded upon a reduced basis, recognising there is a need to make a separate allowance in respect of childcare services pursuant to s 15B, as distinct from the needs of the plaintiff based on s 15 considerations, and to avoid overlap of these considerations.
235. In evaluating the claim for 16 hours per week I have had regard to the fact that it is a substantial reduction on the 36 to 42 hours per week identified in the combined evidence of the plaintiff, Mrs Zreika, Mrs Kalal and Mrs Moukhaiber, which I accept as reasonable.
236. This identified reduction recognises the need to allow for the fact that the allowance for past gratuitous services referrable to the plaintiff has been allowed in the reduced amount of 10 hours per week.
237. The combined total of the claimed 16 hours for childcare pursuant to s 15B and 10 hours for past gratuitous services pursuant to s 15, is 26 hours per week. In my view, a reduction from the range 36 hours to 42 hours identified in the evidence, to 26 hours in total, serves to more than adequately make due allowance for possible reductions on account of any services that may have been provided to ineligible persons, or to allow for any social component within the time taken to provide the described services.
238. On that analysis, I consider that 16 hours per week for childcare services to 3 children is inherently reasonable, being the equivalent of a little over 2 hours per day, or viewed differently, about 45 minutes per day per child. Viewed that way, when regard is had to the tasks described in the evidence, and recognising that these tasks are not mechanical, but involve a number of variables due to human interaction, 16 hours per week seems to me to be a reasonable and conservative figure.
239. The plaintiff referred to the document Australian Social Trends Series 4102.0 to identify a claimed 25 per cent incapacity to perform the claimed childcare services of the order of 66 hours per week, roughly equating to the claimed 16 hours per week for childcare services. However, without explanatory evidence, in this case, I am not prepared to base my assessment on that document, preferring instead to rely upon the evidence given concerning the tasks involved, and the inferences reasonably drawn from such evidence. That process has led me to the conclusion that for the period claimed, 16 hours per week is reasonable and should be allowed in the assessment of this head of damage.
240. The table in Appendix II to these reasons sets out the calculation of the value of 16 hours per week of childcare services claimed between 2 March 2008 and 21 July 2010, at the rate prescribed by s 15B(4) of the CL Act. That appendix reveals the amount to be $46,787.
241. Accordingly, I assess the plaintiff’s entitlement to damages for past childcare services pursuant to s 15B of the CL Act in the sum of $46,787.
Future childcare – s 15B CL Act
242. The plaintiff makes a claim for damages for future childcare. That claim is also founded upon s 15B of the CL Act. The claim formulated on behalf of the plaintiff is in the sum of $193,935, and comprises a claim for 16 hours per week of childcare services at $22.90 per hour, or $366.40 per week (being the suggested but incorrect statutory rate) projected at 5 per cent over the ensuing 14 years (x 529.3), on the assumption that the need for such care would cease when the plaintiff’s youngest child attains the age of 16 years.
243. Whilst the defendant has not conceded this component of the plaintiff’s claim, the defendant has separately conceded 2 hours per week for domestic assistance until the expiration of a further 14 years when the plaintiff’s youngest child reaches age 16. It is implicit in my findings concerning past gratuitous services that I have not accepted the defendant’s submissions in that regard. Instead, I consider that separate allowances are required for each of these discrete and separate heads of damage that are claimed by the plaintiff.
244. I have already recorded my finding as to the reasonableness of the claim for damages for 16 hours of childcare to the present time. I consider that there is no sound reason for adopting a lesser number of hours per week when evaluating the starting point for assessing damages in respect of the future component of this claim. I take that view because the evidence does not disclose a rational basis for inferring that the need for childcare assistance will lessen over the next 14 years. The remaining question involves a consideration as to whether or not that need will remain constant, or will vary over the next 14 years. The plaintiff’s submissions proceed upon the basis that the claimed need will remain constant.
245. In evaluating the plaintiff’s claim I have had regard to a number of considerations. The first is my already identified view of the inherent reasonableness of the assessment of 16 hours per week for such care. The second is the nature of the tasks involved according to the evidence, and a consideration of whether it is likely that those tasks will reduce in the future. The third involves a consideration of the medical evidence on the issue in question.
246. With regard to the first and second factors, an allowance of the equivalent of about 45 minutes per child per day that is inherent in the assessment of 16 hours of childcare services per week does not seem excessive when one considers what is involved with meal preparation, laundry and the many aspects of personal care that parents provide to their young children, even into the teenage years. Within that framework, I consider that although some tasks, and the time taken for those tasks, may vary over time, the overall assessment of 16 hours per week remains reasonable. I do not consider that the evidence, or a general approach, permits a reasonable basis for a lesser allowance over time.
247. On a consideration of the medical evidence on this issue, I consider that the analysis by Dr Davis is the most informative because he has given the issue of future care a staged consideration. In his report dated 20 November 2009, Dr Davis supports a general scheme of staged assistance. To the extent that the hours recommended by Dr Davis are less than those claimed by the plaintiff, I consider his report to be a guide only, and not prescriptive of the hours required, particularly since he has not had the advantage of hearing from the plaintiff, Mrs Zreika and the plaintiff’s sisters on the detail of this component of the claim.
248. My consideration of these factors leads me to the view that the plaintiff’s claim for 16 hours per week should be allowed for the next 14 years until the plaintiff’s youngest child attains the age of 16 years.
249. The projection of $24.67 per hour, or $394.72 per week at 5 per cent over 14 years (x 529.3) yields $208,925. I do not consider this sum should be discounted on account of possible adverse vicissitudes because it relates to the relatively short period of 14 years and the projection already takes mortality into account. In addition, a counter-balancing factor against a discount for vicissitudes is that of the possibility of injury to children due to sporting or other accidents, which gives rise to the potential for greater levels of care being required : s 15B(11)(c) of the CL Act.
250. Accordingly, I assess the plaintiff’s entitlement to damages for the cost of future childcare in the sum of $208,925.
Future out-of-pocket expenses
251. The plaintiff makes a claim for future treatment expenses. The plaintiff’s submission in this regard was based on the report of Dr Davis dated 20 November 2009. In that report, Dr Davis set out estimates of the ongoing costs of anticipated physical therapies, medication and general practitioner consultation, which the revised plaintiff’s submissions have identified to be in the projected sum of $28,800.
252. In contrast, the defendant has submitted that any award in damages for future treatment should be of the order of a cushion amount of $5000.
253. I propose to analyse these different approaches in the light of the evidence.
254. The evidence of the plaintiff was that at the time of the trial, the only current treatment the plaintiff was receiving comprised the taking of medication. On its own, the evidence of the plaintiff did not provide significant scope or detail for an award of significant damages for future treatment. However, a consideration of the plaintiff’s entitlement to damages for future treatment must also involve an assessment of the medical evidence that was tendered in the proceedings.
255. In this regard, on 12 August 2009, Dr Wilding suggested that apart from a spinal exercise programme, no further treatment of the plaintiff was indicated. In contrast, the plaintiff’s treating orthopaedic surgeon, Dr Guirgis, and the other doctors who have assessed her, have taken a different view.
256. On 4 August 2009, the treating general practitioner Dr Akladious considered that the plaintiff needed to undertake physiotherapy, as well as needing to undertake a fitness programme and the need to take analgesics. That view was not much different to the opinion of Dr Wilding, although Dr Akladious deferred to specialist opinions.
257. Earlier, on 26 July 2009, Dr Guirgis estimated the cost of future treatment of a conservative nature to be in the range of $3100-$3600 per annum, which equates to between $59.61 to $69.23 per week, to represent the combined cost for general practitioner consultations, specialist consultations including radiography, physiotherapy, medication and other supports. Dr Guirgis commented that the duration of such treatment should continue for as long as it was required by the plaintiff.
258. On 20 November 2009, in the context of a prognosis for ongoing problems, including expected periods of acute exacerbation of symptoms, Dr Davis stated that the plaintiff would certainly require some degree of palliative assistance that may be best undertaken by allowing her intermittent access to physical therapy in an estimated cost of around $1200 per annum. Added to this was the cost of continuing medications and quarterly review by her general practitioner, at an estimated annual cost of $240. This formulation for treatment was less precise than that suggested by Dr Guirgis, and was the equivalent of $1440 per annum, or $27.69 per week.
259. On 22 April 2010, Dr Deveridge suggested that apart from psychiatric issues which were outside his area of expertise, the anticipated future treatment of the plaintiff would involve ongoing analgesic medication, anti-inflammatory and antidepressant medication, the need to see the general practitioner every month or two for prescriptions, and some possible benefit from a pain management clinic, possible epidural steroid injections, and the possible provision of a TENS machine. Again, these recommendations were less precise than those made by Dr Guirgis. It was not possible to discern from the report what the approximate weekly costs of the treatment recommendations would be.
260. In relation to the plaintiff’s psychiatric condition, Dr Stephenson indicated it would be dependent upon the orthopaedic condition. Dr Stephenson stated that the plaintiff needed regular physiotherapy, but she made no specific recommendations for future psychiatric treatment, other than to indicate that the plaintiff’s psychiatric prognosis could be reassessed in 6-12 months from the date of her report, which was dated 14 May 2009. No further reassessment of that nature was introduced into evidence.
261. From within the array of medical evidence, I prefer the opinions of Dr Guirgis, Dr Davis and Dr Deveridge to those of Dr Wilding on this issue. This is because I consider the opinion of the treating doctor, Dr Guirgis, should carry greater weight, and it also happens to be largely supported by the general tenor of the views of Dr Davis and Dr Deveridge, compared to the less detailed view of Dr Wilding on the issue future treatment.
262. Following my review of the above array of evidence concerning future treatment, it is clear that the preponderance of the medical evidence supports the plaintiff’s claim for future out-of-pocket expenses for treatment within a number of modalities. In this context, I consider the submission made by the plaintiff is, in general terms, a reasonable one, that was not pitched at the potential maximum, and one which was based on the preponderance of the medical evidence concerning future treatment. In this regard, in contrast, I consider the submission made by the defendant to have insufficient regard to the detail of the recommendations made in the medical evidence, so as to render the submitted award for a buffer to be inappropriate in the light of the specific evidence to which I have referred.
263. In this regard, I prefer the opinions of Dr Guirgis, Dr Davis and Dr Deveridge to the more general opinion of Dr Wilding on the issue of estimating future treatment expenses. I prefer these views to the opinion of Dr Wilding because I consider that his views make insufficient allowance for the permanent nature of the plaintiff’s lower back problems.
264. Having regard to the range of estimated treatment costs set out in the medical reports I have reviewed, I therefore propose to allow the plaintiff the rounded down sum of $30 per week over her remaining lifespan to cover the cost of future treatment expenses of the kind outlined by Dr Guirgis, Dr Davis and Dr Deveridge.
265. The projection of $30 per week at 5 per cent over a remaining lifespan of 61 years (x 1014.9) yields the sum of $30,447. I consider it is inappropriate to discount this amount because the projection has already been discounted for mortality, and because the preponderance of the medical evidence is that the plaintiff’s condition will be permanent, which raises the possibility of the condition worsening over time, which is a vicissitude that potentially operates adversely to the defendant. In my view, these factors counterbalance any indication for a discount.
266. Accordingly, I assess the plaintiff’s entitlement to damages for future treatment expenses in the sum of $30,447.
Past out-of-pocket expenses
267. The plaintiff’s out-of-pocket expenses have been agreed in the amount of $3182. I therefore assess damages for past out-of-pocket expenses in the sum of $3182.
Summary of damages assessment
268. My assessment of the plaintiff’s damages is summarised as follows:
(a) Non-economic loss (b) Loss of earning capacity (c) Loss of superannuation (d) Past paid care (e) Past gratuitous care (f) Future domestic assistance (g) Past childcare, s 15B CL Act (h) Future childcare, s 15B CL Act (i) Future out-of-pocket expenses (j) Past out-of-pocket expenses Total
D. DISPOSITION & ORDERS
Disposition
269. The plaintiff has succeeded on the issue of liability. Contributory negligence was not argued. I have assessed the plaintiff’s entitlement to compensatory damages in sum of $766,793. The jurisdictional limit of the Court for this case is $750,00. Any application to extend the jurisdiction of the Court above the Court’s jurisdictional limit of $750,000 for this case, pursuant to s 51(4) of the District Court Act 1973, and to vary the amount of the judgment, will require notice to the defendant.
Orders
270. I make the following orders :
(a) Verdict for the plaintiff on the issues of liability;
(b) Damages are assessed in the sum of $766,793;
(c) Judgment for the plaintiff in the sum of $750,000;
(d) The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
(f) Liberty to apply on 7 days notice if further orders are required;(e) The exhibits may be returned;
APPENDIX I
CALCULATION FOR PAST GRATUITOUS CARE ACCORDING TO
CIVIL LIABILITY ACT 2002, s 15(4)
PERIOD
s.15(4)
RATE
s.15(4)
RATE1. 03.03.2008 to 16.05.2008 $937.80 $23.45 2. 17.05.2008 to 15.08.2008 $921.60 $23.04 3. 16.08.2008 to 21.11.2008 $933.50 $23.34 4. 22.11.2008 to 20.02.2009 $938.50 $23.46 5. 21.02.2009 to 15.05.2009 $946.40 $23.66 6. 16.05.2009 to 21.08.2009 $939.00 $23.48 7. 22.08.2009 to 20.11.2009 $959.90 $23.99 8. 21.11.2009 to 19.02.2010 $969.40 $24.23 9. 20.02.2010 to 21.05.2010 $989.90 $24.74 10. 22.05.2010 to 21.07.2010 $986.90 $24.67 TOTAL
APPENDIX II
CALCULATION FOR PAST CHILDCARE ACCORDING TO
CIVIL LIABILITY ACT 2002, s 15B
PERIOD
s.15B
RATE
s.15B
RATE1. 03.03.2008 to 16.05.2008 $937.80 $23.45 2. 17.05.2008 to 15.08.2008 $921.60 $23.04 3. 16.08.2008 to 21.11.2008 $933.50 $23.34 4. 22.11.2008 to 20.02.2009 $938.50 $23.46 5. 21.02.2009 to 15.05.2009 $946.40 $23.66 6. 16.05.2009 to 21.08.2009 $939.00 $23.48 7. 22.08.2009 to 20.11.2009 $959.90 $23.99 8. 21.11.2009 to 19.02.2010 $969.40 $24.23 9. 20.02.2010 to 21.05.2010 $989.90 $24.74 10. 22.05.2010 to 21.07.2010 $986.90 $24.67 TOTAL
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