Jeffery v Gowing Bros Ltd t/as Pacific Coast Shopping Centres

[2017] NSWDC 267

District Court

New South Wales

Medium Neutral Citation:

Jeffery v Gowing Bros Ltd t/as Pacific Coast Shopping Centres [2017] NSWDC 267

Hearing dates:

20 and 21 September 2017

Date of orders:

26 September 2017

Decision date:

26 September 2017

Jurisdiction:

Civil

Before:

Judge D. Russell

Decision:

(1)   Judgment for the plaintiff against the defendant for $264,279.77.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant liberty to the parties to apply to my Associate if any different costs order is sought by a party.

Catchwords:

LIABILITY – slip and fall - travelator

 

LIABILITY – civil liability – failure to take reasonable precautions against risk of harm

 

NEGLIGENCE – contributory negligence

  DAMAGES – non-economic loss – out-of-pocket expenses – gratuitous attendant care services – economic loss and loss of earning capacity

Legislation Cited:

Civil Liability Act 2002

Cases Cited:

Australian Safeway Stores Pty Limited v Zaluzna [1987] 8 HCA 7; (1987) 162 CLR 479
Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334
Francis v Lewis [2003] NSWCA 152
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kocis v SE Dickens Pty Limited [1998] 3 VR 408
Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32]

Category:

Principal judgment

Parties:

Trudi Anne Jeffery (plaintiff)
Gowing Bros Ltd t/as Pacific Coast Shopping Centres (defendant)

Representation:

Counsel:
Ms E. Welsh (plaintiff)
Mr D. Priestley SC (defendant)

  Solicitors:
Stacks Law Firm (plaintiff)
McCabes (defendant)

File Number(s):

2016/231334

Judgment

INTRODUCTION

1. By a Statement of Claim filed on 1 August 2016 the plaintiff Trudi Anne Jeffery has sued the defendant Gowing Bros Limited t/as Pacific Coast Shopping Centres for damages arising out of an accident which occurred at the defendant’s premises on 2 May 2015.

2. On that date the plaintiff had made some purchases and was leaving the defendant’s shopping centre at Kempsey by a metal travelator. She slipped on the travelator and fell backwards. She fractured her left ankle.

3. By its Defence filed on 11 November 2016 the defendant admitted that it was the occupier of the shopping centre and admitted that the plaintiff was using the travelator when the accident occurred. The defendant admitted that it owed a duty of care to the plaintiff but denied breaching that duty of care. It also pleaded contributory negligence.

4. The liability issues were further refined by the defendant’s Statement of Issues. On the question of liability the defendant only put in issue:

1. Whether the defendant failed to take reasonable precautions against the risk of harm;

2. Contributory negligence.

5. In the light of the defendant’s very sensible attitude towards liability, I have been relieved of the task of considering the liability provisions of the Civil Liability Act 2002 in depth.

6. The evidence for the plaintiff came from the plaintiff herself and from her husband. Both impressed me as witnesses of truth who gave their evidence in a matter of fact fashion and answered all questions without prevarication. The defendant’s expert Dr Rowe said that the plaintiff “presented in a straightforward manner”. That was also my impression.

BEFORE THE ACCIDENT

7. Immediately prior to the accident the plaintiff worked five days per week in the salon. On Tuesdays, Wednesdays and Fridays the plaintiff worked between 9.00am and 5.30pm. On Thursdays the plaintiff worked between 10.00am and 7.00pm. On Saturdays the plaintiff worked between 9.00am and 2.00pm. On Mondays the plaintiff did her bookwork for the business. Sunday was a day off.

8. The plaintiff and her husband lived in their home at Rainbow Reach which is about 25 minutes north of Kempsey towards Seal Rocks.

9. The division of work in the household prior to the accident involved the plaintiff doing about 1 hour of housework each day before she went to the salon. In the morning the plaintiff would vacuum, wash and iron. At night the plaintiff cooked dinner. On Saturday afternoon the plaintiff did the ironing for 2½ to 3 hours and cleaned the bathrooms which took about an hour. The plaintiff also did the shopping which took about 1½ hours.

10. Prior to the accident the plaintiff was a surf lifesaver at South West Rocks and did regular patrols. This was a family activity. The plaintiff walked 30-40 minutes each morning with her mother. In part, the plaintiff did a walk as many mornings as she could, with a view to controlling her weight, which had been a problem.

11. The plaintiff was cross-examined about medical matters. In April and May 2014 the plaintiff did consult her GP complaining of pain in both knees and ankles. She was sent for an x-ray of the left ankle. The plaintiff recalled problems with spurs in both heels, but could not recall any specific ankle pain. The plaintiff did discuss having a steroid injection to her left ankle with her GP, but never had one. There were no subsequent consultations of this nature.

THE ACCIDENT

12. The plaintiff operated her own hairdressing business in Kempsey. Her salon was adjacent to the defendant’s shopping centre. The shopping centre had a travelator which connected the shopping centre to the car park. Part of the travelator was covered and part was open to the elements. In heavy rain the travelator became wet if the rain came in at certain angles.

13. At about 8.30am on 2 May 2015 the plaintiff walked from her salon up the ramp into the centre. She bought a teacake and a take-away coffee. Because it had started to rain heavily she decided to exit the centre by the travelator into the car park, as this would take her back to the salon largely under cover. She walked across the tiled floor of the centre towards the travelator. The plaintiff was carrying a teacake, a take-away coffee, a phone, money and keys. As she walked across the tiled floor she saw a man mopping up water which had come from the heavy rain outside.

14. The plaintiff said that she was careful getting onto the travelator. She took four or five steps and then her feet went from under her. She fell backwards and down onto her left leg. She felt pain near the left ankle. The plaintiff was unable to stand up and was carried down on the travelator and managed to shimmy off it.

15. A man came along to help her. Unbeknown to the plaintiff, an acquaintance Ms Cathy Dunbar had seen that the plaintiff was on the ground at the bottom of the travelator. Ms Dunbar came down the travelator to assist the plaintiff. However, Ms Dunbar also slipped and fell, suffering injuries. In the end result both the plaintiff and Ms Dunbar we taken to hospital by separate ambulances.

16. The plaintiff did not see Ms Dunbar fall, but she heard the man who was helping her say “someone has fallen on the travelator again”. Records of the defendant were tendered which showed the two falls on the travelator on 2 May 2015.

17. The plaintiff was not holding on to the hand rails which were on both sides of the travelator. Her hands were full with the things she was carrying.

18. The plaintiff was cross-examined by senior counsel for the defendant. She said that she had used the travelator before but had never noticed it to be slippery or wet on prior occasions. The plaintiff did see the water on the tiled area near the top of the travelator and saw a man mopping about 10 metres away from the start of the travelator. The plaintiff did not see yellow wet floor signs which, according to later evidence, were on the tiled floor some distance away from the start of the travelator.

19. The plaintiff acknowledged to senior counsel that she did not use the handrail and said that both hands were taken up with carrying material. She had no pockets in her clothes and no bag to carry things. She thought it was safe to walk down the travelator. The plaintiff said that she did not stand still but that she started walking on the travelator but she was not in a hurry. She simply did not think that there was a risk of falling.

AFTER THE ACCIDENT

20. The plaintiff was taken to Kempsey District Hospital but was then transferred by ambulance to Port Macquarie Hospital where she was admitted. She came under the care of Dr Wellings an orthopaedic surgeon.

21. An x-ray of the left leg and ankle was taken.

22. On 3 May 2015 Dr Wellings performed an open reduction and internal fixation of the left ankle.

23. The plaintiff was discharged home on 4 May 2015 with her left lower leg in a back slab plaster. She had this for two weeks and then she wore a boot. The plaintiff was on crutches for about six weeks and could not weight bear.

24. During this time the plaintiff could get herself to the bathroom. The plaintiff’s mother, who lives next door, came in every day to help her daughter. The housework was taken over by the plaintiff’s husband, mother and daughter.

25. The plaintiff was taking the strong painkiller Oxycodone for a few months. After that time the plaintiff continued to take Panadol and Nurofen.

26. Before the accident the plaintiff was the only qualified hairdresser in her salon. Sam Baker was employed as an apprentice. When the plaintiff had her accident and could not work for six weeks, she employed three casuals to fill in for her. The plaintiff kept in touch with her casual employees by phone to make sure that the business stayed open.

27. The plaintiff returned to work at the salon six weeks after the accident. She was concerned that the business would suffer without her there, as many of the customers came for specific attention by the plaintiff. The plaintiff returned to work early for financial reasons.

28. One of the casuals stayed on for an extra two weeks to assist.

29. When the plaintiff returned to work she did not accept as many bookings as she did before the accident. The plaintiff needed to have three half hour breaks each day, during which time she rested and put the foot up. This pattern has continued to the present time. When the plaintiff initially returned to work her ankle was painful all day, but after a while the ankle was alright in the morning, but became painful by the afternoon.

30. The plaintiff said that nowadays she has no pain in the ankle in the morning, and that she reached that point about 12 months after the accident. The plaintiff now gets to work at about 8.30am and starts at 9.00am. She has three 30 minute breaks during the day. Before the accident her only break was to have lunch. The plaintiff does not work as quickly as she did, and now works into the evenings to finish the same number of clients. On Tuesday, Wednesday and Friday the salon is open until 7.30pm. On Thursday, the salon opens to 5.30pm.

31. The plaintiff gave evidence that her ankle is now very sore in the afternoon and the evenings. It is sore to touch near the plate and the screw. When the plaintiff comes home she now elevates the foot and rests, to deal with the pain and swelling. The plaintiff finds that she is better at the beginning of the week, but her ankle hurts a lot by Thursday, Friday and Saturday.

32. The plaintiff gave evidence that her husband now cooks dinner. The husband and the daughter, who is 15, do most of the housework. The plaintiff’s mother now does the ironing. All of these tasks were previously performed by the plaintiff, as well as going to work full-time.

33. The plaintiff gave evidence that she performs the exercises given to her by the physiotherapist, by herself at home. The plaintiff is restricted in both flexion and extension of the ankle. The plaintiff has stopped going for walks altogether and has put on weight. The plaintiff has had to give up lifesaving patrols, as she cannot do the competency test which involves a run/swim/run.

34. The plaintiff now feels a little bit anxious at times. She has gained 11 kilograms and doesn’t feel good about this. If the foot feels sore, which it does by the end of the day, the plaintiff thinks that she walks with a little limp.

35. The plaintiff had plans to work to age 65 as a hairdresser in her own business. She now doesn’t think she can continue to that age.

36. The plaintiff has discussed with her treating doctors the possibility of surgery to remove the hardware. She has been told that this is a day operation and that she will need four weeks off work for recovery. Her GP has recommended removal of the hardware in the leg.

37. The plaintiff’s husband is 56 years old and in employment as a bus driver. The couple have a mortgage over their home of $200,000.

38. The plaintiff was cross-examined as to whether there were times when she had no pain, and she agreed that that was so. However, the plaintiff said that every afternoon her ankle was very sore and she needed to elevate it.

39. The plaintiff was cross-examined about housework. She acknowledged that she could do some housework now herself, probably about half of what she used to do. She still did the folding, hung out the washing and cooked one night a week. She now did the grocery shopping, something she returned to about four months after the accident.

40. The plaintiff was shown, in cross-examination, excerpts from visual surveillance. The first excerpt was between 5.37pm and 5.40pm on 1 September 2017. This was a Friday when the plaintiff was leaving the salon at the close of business. My impression of the plaintiff’s gait, which I shared with both counsel, was that she appeared to be limping.

41. Later the same afternoon there was an excerpt which ran between 5.47pm and 5.50pm on 1 September 2017. The plaintiff was in a liquor store. Again, my observation was that the plaintiff was limping when she walked through the store.

42. The next excerpt was on Saturday, 2 September 2017 starting at 8.06am when the plaintiff attended local markets. I observed the plaintiff to walk slowly around the markets, and she spent most of her time talking to people there. As it turned out, she had specifically gone to the market to see a very close friend who she had not caught up with since Christmas. The plaintiff said in cross-examination that she thought she walked with a slight hobble at the markets. I told both counsel that I could not see that, but nevertheless her gait did not appear normal to me. She walked very slowly and she appeared to be “flat-footed”.

43. The entire surveillance material was made available to counsel for the plaintiff. The plaintiff was recalled and surveillance taken on 2 September 2017 at 5.15pm was shown. The plaintiff was at an RSL Club with friends for a meal. The plaintiff walked slowly down stairs by putting her left foot on a tread and then bringing the right foot onto the same tread. In other words, the plaintiff took each step one at a time, rather than walking down alternate treads as would be normal. The plaintiff said that at the time her ankle hurt and she was restricted in her flexibility.

44. The plaintiff’s husband gave evidence. He is a bus driver who works 38 hours per week. He does not work on weekends. He too does surf lifesaving patrols.

45. The husband said that before the accident he did not do much housework. He cooked one night a week. His wife did the shopping and the ironing.

46. Mr Jeffrey helped his wife to get in and out of the shower for about 2-3 months. He sometimes helped her with dressing. There was a change to the way housework was performed. He took over most of the cooking, washing, hanging, vacuuming and mopping the tiled floors.

47. Mr Jeffery said that he took over the cooking about four nights per week. He said that he spends 1 to 1½ hours a night doing the cooking. If cleaning up was taken into account he said he spent about 2 hours per night. Mr Jeffery now did the housework on the weekends which involved a couple of hours of washing, vacuuming and mopping. His mother-in-law did the ironing.

48. About three or four months after the accident Mr Jeffery said that his wife then started to cook for one or two nights per week. On weekends he said that he spends about one hour doing the washing and about 20 minutes hanging out the clothes.

49. There is a paid cleaner who comes in on Fridays. This cleaner came in for several years before the accident. Mr Jeffery helps the paid cleaner clean the floors on the Friday. However, Mr Jeffery also spends about two hours on a Tuesday or Wednesday night cleaning the floors. Every floor in the home is tiled and thus the floors need to be cleaned twice a week.

50. Mr Jeffery said that his wife had enjoyed working as a hairdresser, being a patrol member at the surf club and walking in the mornings with her mother.

51. Mr Jeffery observed that his wife’s foot now seemed to be on an angle. He said that she could not walk far. He had seen her take Nurofen and Panadol in the morning. He said that his wife had become a bit quick tempered. He said that his wife did not get up as early as she used to, as she is now not doing her walking.

THE MEDICAL EVIDENCE

52. At the Port Macquarie Hospital an x-ray was taken of the plaintiff’s left leg and ankle. The report said:

“There is an oblique fracture of the lower shaft of the fibula extending to the level of the ankle joint. This may represent a slightly displaced Weber C fracture but there is no displacement of the distal tibiofibular joint.

I do note, however that there is moderate disruption of the ankle joint with widening of the medial aspect of the ankle noted and there is slight irregularity of the posterior margin of the tibia which may reflect an undisplaced fracture at this site.

The remainder of the tibia and fibula appear normal.”

53. The operation conducted at Port Macquarie Hospital was a left distal fibular open reduction and internal fixation.

54. After discharge from hospital the plaintiff consulted her GP Dr Das. When the plaintiff went to Dr Das on 11 May 2015 she still had a back slab plaster for immobilisation. The plaintiff consulted Dr Das on 14 September 2015 for left ankle pain. The plaintiff went back to Dr Das on 22 February 2016 with a left ankle problem. An x-ray was taken. The x-ray report said:

“Metallic fixation is seen at a healed fibula and there is no evidence of osteomyelitis or septic arthritis. There is no degenerative or erosive change at ankle and there is no ankle joint effusion. There is a large calcaneal spur.”

55. The plaintiff was seen for medico-legal purposes by Dr Peter Conrad, a general surgeon. He first saw the plaintiff on 27 June 2016. Dr Conrad found an 8cm slightly pigmented and thickened scar over the left lower leg. He also found restriction in movement of the left ankle with plantar flexion capability 15°, extension 5° and inversion 15°.

56. In a report dated 27 June 2016 Dr Conrad said that the plaintiff had ongoing pain and stiffness in the left ankle which was now permanent and stable. He said that should the pain and stiffness increase in the future there was a possibility that the plaintiff might need further surgery in the form of removal of the internal hardware. He put the cost of that at $6,000 and two weeks off work. Dr Conrad thought that the plaintiff was well motivated but that she should have regular rest periods.

57. Dr Conrad provided a supplementary report dated 30 June 2016. In it he said that in his view the plaintiff would need three 30 minute rest breaks during a working day. He also said:

“With regards to her working life, on the balance of probabilities, her retirement may need to be at about the age of 60 years.”

58. Dr Conrad gave no reasons for coming to that view or for selecting the age of 60 years. In any event, his opinion was only that the plaintiff “may” need to retire early.

59. For medico-legal purposes the plaintiff saw Dr Peter Giblin, orthopaedic surgeon on 30 November 2015. The plaintiff complained of persisting pain and stiffness in the left ankle and said that it was sore to touch and always swollen by the end of the day. The plaintiff was aware that she limped. The scar was slightly tender and the plaintiff said that she could feel the hardware especially if she wears any closed or tight shoes which rub on the scar.

58. The plaintiff told Dr Giblin that prior to the accident she was doing 100% of the housework and shopping, but since the accident the split between herself and her husband had been 50-50.

59. Dr Giblin found that the left ankle had definite restriction of active range of motion to about two-thirds normal. He found that stressing the subtalar joint produced some of the plaintiff’s complaints.

60. Dr Giblin said that the left ankle was never going to come back to completely normal. There would always be some soft tissue symptoms with the potential for the development of subtalar joint arthritis over the longer term. He thought that removal of the plates and screws from the left ankle would cost $8,000 and require at least a month off work.

61. The prognosis of Dr Giblin concluded as follows:

“There is a long term possibility in the order of 20%, that she will develop subtalar arthritis and merit consideration for an arthrodesis. The all-up hospital, medical and ancillary costs being in the order of $16,000, barring any complications, and the period of time off work in terms of a light job being at least four months.

Whilst she remains fit for her current job, it is my view that the persisting symptoms and the gradual deterioration, will cause her to (cease) work as a hairdresser at the age of 55.”

64. Dr Giblin thought that the plaintiff remained fit for her current job but it would be inadvisable to do more than eight hours work without having a rest and putting the leg up.

65. In a subsequent report dated 7 December 2016 Dr Giblin said:

“Further to my previous reports, and in reply to your letter 2 December 2016, given that Miss Jeffery has a decreased working pace, necessitating several breaks during the day meaning less appointments, it would be my view that this physical restriction is consistent with her ongoing symptoms.

This diminution of productive activity is likely to continue until her retirement age of 55.”

66. Apart from the fact that, by inference, Dr Giblin thinks that the plaintiff will decline in her physical capacity, no reasons are advanced for the opinion. Further, no reasons are advanced for selecting 55 as a retirement age.

67. The defendant tendered a medico-legal report dated 10 April 2017 from Dr Rowe, orthopaedic surgeon. He saw the plaintiff on 27 March 2017. The plaintiff told Dr Rowe that her left ankle still ached from time to time and that the ache occurs when she spends a long period of time on her feet. The plaintiff was able to obtain some relief by resting. The plaintiff was taking Panadol and Nurofen as needed for pain relief. She generally took these tablets towards the end of the working week.

68. Examination by Dr Rowe revealed no deformity. There was tenderness over the plate and screws laterally and a 10cm lateral surgical scar on the left ankle. The ankle was stable and had a full range of movement.

69. Dr Rowe thought that the plaintiff may well benefit from the removal of the diastasis screw and that this would cost about $8,000.

70. Dr Rowe thought that the plaintiff could continue “full duties until normal retirement”. No reasons were advanced for this opinion.

71. Dr Rowe thought that there was a 20% chance that the plaintiff would develop arthritis and that this may require surgical fusion. The plaintiff would be off work for about four months.

72. Dr Rowe took a history concerning domestic assistance. The plaintiff said that since her fall her husband and daughter have helped with domestic chores including vacuuming and hanging out washing. Her mother had done the ironing. The husband had undertaken most of the cooking whereas before the fall husband and wife shared the cooking equally.

73. Dr Rowe was asked to comment upon the extent to which the domestic assistance the plaintiff required arose solely because of the injuries sustained in the accident. He said that “the domestic assistance is entirely the result of the subject fall”.

EXPERT EVIDENCE ON LIABILITY

74. The plaintiff tendered two reports by Mr Jason Wagstaffe who is a safety engineer. The reports went into evidence without objection and without the requirement for cross-examination. In his first report dated 20 February 2017 Mr Wagstaffe said that there were reasonable preventative measures that could and should have been implemented by the defendant to take care for the safety of customers such as the plaintiff. He identified the following:

1. The undertaking of an effective and appropriate risk assessment of the decline travelator to identify the hazards and risk of injury to which the plaintiff was exposed;

2. The elimination of the hazard, that being the hazard associated with contamination of the common area pedestrian walking surface with rainwater during periods of wet weather, by enclosing the space between the ceilings of the internal buildings and the external roof of the building;

3. The isolation of the decline travelator during periods of wet weather so as to prevent pedestrians interacting with a pedestrian walking surface that was slippery when contaminated with a liquid surface contaminant such as rainwater;

4. The use of a proprietary chemical surface treatment to increase the available slip resistance to a minimum value of 60 BPN.

75. Mr Wagstaffe went to the defendant’s shopping centre to conduct a slip test on the travelator. However, the surface of the travelator had been changed since the plaintiff’s accident. A non-slip proprietary treatment had been applied to the walking and working surface of the decline travelator. In final submissions counsel for the plaintiff only argued for solutions (3) and (4).

76. Mr Wagstaffe was able to conduct a slip test, with the co-operation of the defendant, by the incline travelator (which had not been treated) being stopped and tested as if it were a decline travelator. Both travelators were on the same angle of 12.5°. Put simply, the test showed that the untreated travelator, when traversed in a down direction by a pedestrian, was a surface which was well below the appropriate standard of slip resistance. His conclusion was that the untreated travelator surface within the defendant’s premises would have made “a very high contribution to the risk of slipping when wet”.

77. Section 5C of the Civil Liability Act 2002 provides:

“In proceedings relating to liability for negligence:

(a)   the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)   the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)   the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

78. Thus the evidence that the decline travelator had subsequently been coated with a non-slip surface was not admitted for any of the purposes proscribed by s 5C. Rather, it was simply admitted as evidence of a precaution which could have been taken by the defendant. Whether or not such a precaution was a reasonable step is a different legal issue.

OTHER EVIDENCE ON LIABILITY

79. Prior to the plaintiff’s accident at the shopping centre, a Mr Dennis O’Brien had slipped and fallen on the travelator on 27 August 2014. His fall occurred in about the same place as that of the plaintiff, about four or five metres away from the leading edge of the decline travelator. He twisted his right ankle when he slipped and fell. There was no fracture.

80. The defendant’s Incident Report Form regarding this accident was tendered. The water on the travelator which caused the fall got there during a period of pouring rain and storms. Mr O’Brien had walked through rainwater on the wet tiled floor before stepping onto the travelator.

81. A summary of the incident reports at the shopping centre between January and December 2014 was tendered. This recorded that on the day of Mr O’Brien’s fall, there was 115.2mm of rain.

82. On the day when the plaintiff and later Ms Dunbar fell, there was 86.8mm of rain.

83. Counsel for the plaintiff submitted that the earlier fall of Mr O’Brien should have put the defendant on notice that during periods of heavy rain, water could enter the shopping centre. Further, counsel for the plaintiff submitted that the fall of Mr O’Brien should have told the plaintiff that water getting onto the travelator was a hazard which could lead to a customer suffering injury.

ECONOMIC LOSS

84. The plaintiff’s evidence regarding economic loss and the changed hours for which she operated her hairdressing salon has been recited above. The plaintiff tendered financial statements including profit and loss accounts, and copies of tax returns from financial year 2011 to financial year 2015.

85. In financial year 2014, which was the last full financial year before the accident, the business had sales of $203,480, and gross profit of $175,556. Wages were $49,306. The plaintiff’s taxable income was $63,071 which equated to $976 nett per week.

86. The income in the 2015 financial year was said by the plaintiff to have been affected by her six week absence from work after the fall. However, as senior counsel for the defendant pointed out the salon remained open during that time because the plaintiff employed three casuals to keep it going. Sales in the 2015 financial year were down to $165,520 (a drop of about $38,000) and gross profit was $150,136 (a drop of about $25,000). Surprisingly, wages were down on the 2014 year at $46,900. The plaintiff’s taxable income was $42,002 which equated to $700 nett per week.

87. Senior counsel for the defendant submitted that the drop in nett weekly income of $276 (from $976 to $700 nett per week) could not possibly be entirely attributed to the plaintiff’s six week absence from work after 2 May 2015. For a start, there was not a total loss during that period as the salon remained open and customers were served. Moreover, even if the salon had shut down completely so that there was a total loss, this would only result in a reduction of $23,000 in sales. Instead, sales were down by about $38,000. In any event, there was not a total loss during the six weeks off work. Senior counsel for the defendant submitted that “something else” must have caused the drop in sales, gross profit, taxable income and nett weekly income.

88. The drop in income has continued. In financial year 2016 the sales were $168,497 and the gross profit was $143,820. Wages were down to $29,370, a fact explained by the plaintiff employing only an apprentice during that time to help her in the salon. The plaintiff’s taxable income rose from the 2015 financial year to $50,375 which equated to $800 nett per week.

89. In 2017 financial year sales were $182,919 and gross profit was $158,067. Wages went up to $37,259 (which can be explained by the plaintiff employing a senior stylist for a few months instead of the apprentice). The plaintiff’s taxable income was steady at $50,826 which gave a nett weekly income of $805.

90. Once again, senior counsel for the defendant submitted that it was hard to accept that the reduction in nett weekly income came about because of any disability caused by the accident. The plaintiff’s evidence was that she was seeing the same number of customers, even though she had three 30 minute rest breaks during the day, because she was now working into the night on several days per week rather than closing at 5.30pm.

91. Counsel for the plaintiff submitted that the court should award half of the reduction of the income in 2015 on the basis that this was related to the accident. Counsel pointed out that the plaintiff said she was not taking on as much work as before. For 2016 and 2017 counsel submitted that the award should be for 50% of the differential between the 2014 income of $976 and the new nett weekly income of $800 approximately. Counsel pointed out that the plaintiff said that she was less efficient at work.

92. For the future, counsel for the plaintiff submitted that the loss of earning capacity was a loss of 25% of capacity. It was submitted that the plaintiff was likely to keep working for a few more years.

93. For the defendant, senior counsel submitted that there is no basis to think that there would be any economic loss although it was conceded that if the plaintiff had one or two operations there would be time off work for treatment. It was submitted that the appropriate approach was a “very small” cushion or buffer.

FINDINGS OF FACT

94. I have already indicated that I accept the plaintiff and her husband as witnesses of truth. I accept the evidence of the expert Mr Wagstaffe, which was not challenged. I will deal later with my findings in relation to the medical opinions and economic loss. I accept the evidence of the plaintiff and her husband about gratuitous domestic assistance. Dr Rowe, for the defendant, turned his mind to this and accepted that the assistance now rendered by the husband was necessary and was attributable to the accident. My findings of fact are set out in the preceding paragraphs.

DUTY OF CARE

95. The occupier of retail premises has a duty to take reasonable care to avoid a foreseeable risk of injury to the claimant, arising from the physical state of its land, on the assumption that the claimant uses reasonable care for their own safety: Australian Safeway Stores Pty Limited v Zaluzna [1987] 8 HCA 7; (1987) 162 CLR 479 at 488; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 at [45].

96. The defendant admits that it owed a duty of care.

97. I find that the defendant owed a duty of care to avoid a foreseeable risk of injury to the plaintiff arising from water being on the decline travelator at its Kempsey premises, upon which customers might slip and fall.

BREACH OF DUTY OF CARE

98. Foreseeability of risk is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40]. The occupier’s obligation is that of reasonable care. Its duty is not to make the premises as safe as ‘reasonable care and skill on the part of anyone can make them’: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [92]. It is not an insurer of entrants: Kocis v SE Dickens Pty Limited [1998] 3 VR 408 at 429. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32].

99. The question whether the defendant breached its duty of care to the plaintiff is governed by s 5B of the Civil Liability Act 2002. The criteria in s 5B were not put in issue by the defendant and in the light of that very sensible and proper concession I make the following findings:

1. The risk was foreseeable;

2. The risk was not insignificant; and

3. In the circumstances, a reasonable person in the defendant’s position would have taken precautions against the risk of harm.

100. In the present case I find that the relevant risk is that a customer would slip on the decline travelator if there was water upon it.

DID THE DEFENDANT FAIL TO TAKE PRECAUTIONS AGAINST THE RISK OF HARM WHICH A REASONABLE PERSON IN ITS POSITION WOULD HAVE TAKEN?

101. The defendant already knew of the risk of a customer falling upon the travelator in wet weather. This is because Mr Dennis fell several months before the plaintiff and his fall was documented as being caused by rain entering the shopping centre and getting onto the travelator.

102. There was a simple no cost expedient available to the defendant to take precautions against the risk of a customer falling on a wet travelator. That was to simply shut the travelator in wet weather. According to the evidence of Mr Wagstaffe there were alternative means of access from the shopping centre to the car park.

103. Further, it was possible to apply a non-slip protective coating to the treads of the travelator. The defendant indeed did this at some later stage. There is no evidence about the cost of that or why it was done. There was ample time between the fall of Mr Dennis and the falls of the plaintiff and Ms Dunbar to do something about the dangerous state of the travelator. Nothing was done.

104. I find that the defendant failed to take reasonable precautions against the risk of a customer slipping and falling on the travelator in wet weather. Those precautions were:

1. Stopping the travelator and blocking access to it during heavy rain;

2. Applying a non-slip protective coating to the treads of the travelator.

105. I therefore find that the defendant breached its duty of care to the plaintiff.

CAUSATION

106. Section 5D of the Civil Liability Act 2002 prescribes a “but for” test. The defendant did not contest causation. I find that the negligence of the defendant caused the harm to the plaintiff because:

1. the breach of duty of care by the defendant was a necessary condition of the occurrence of the harm; and

2. it is appropriate that the scope of the defendant’s liability extends to the harm so caused.

CONTRIBUTORY NEGLIGENCE

107. Section 5R of the Civil Liability Act 2002 provides as follows:

“(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a)   the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b)   the matter is to be determined on the basis of what that person knew or ought to have known at that time.”

108. Senior counsel for the defendant submitted that the plaintiff was guilty of contributory negligence and suggested that an appropriate deduction was 20%. He submitted that because there was a lot of water around, and the plaintiff had noticed that the tiled floor was wet, she should have held onto the handrail on the travelator. It was pointed out that the plaintiff was carrying items in both hands. He submitted that the plaintiff could have put her coffee in the same hand as was holding the teacake, the phone and the keys, and held onto the handrail with her then free hand. He submitted that the plaintiff had apprehended that there was a risk in walking on the travelator.

109. For the plaintiff it was submitted that the plaintiff took care approaching the travelator and walking upon it. Counsel also submitted that there was no evidence that having a hand on the handrail would have made a difference to the outcome. Finally, it was pointed out that someone else slipped on the travelator, even though they knew that there had already been an accident on the travelator.

110. I find that there was no contributory negligence in not holding onto the handrail. The defendant had not required people travelling on the travelator to hold onto the handrail. Further, the defendant would have expected many people on the travelator to have shopping in both hands, in fact it would probably have hoped so.

111. There was no expert evidence as to the nature of the grip provided by the handrail, or as to whether a person who suddenly lost their footing because of the wet treads on the travelator could have saved themselves by holding onto the handrail. The slip and fall was a very sudden and unexpected event, and it is to be doubted that someone juggling multiple items in one hand and holding onto the handrail with the other could have gripped the handrail sufficiently to stop herself falling in the way the plaintiff did.

112. Senior counsel for the defendant pointed to the still photos from the CCTV footage which showed yellow wet floor warning signs. These were on the tiled floor which the plaintiff traversed in walking to the start of the travelator. They were some distance from the start of the travelator. While they may have given an indication that the level tiled floor was wet, they said nothing about whether there was a water hazard on the sloping metal travelator. Further, the water on the floor was visible to all, whereas the water on the travelator was in a sense a hidden danger.

108. I find that the plaintiff was taking reasonable care for her own safety in the way she stepped onto and walked slowing along the travelator holding her items in both hands. I find that there is no contributory negligence and thus there will be no reduction in damages.

DAMAGES – NON-ECONOMIC LOSS

114. I find that the plaintiff is a very impressive hard-working person who has done the best to get on with her life after her broken ankle. Nevertheless she has difficulties with the ankle in that it becomes painful every day, such that she has to take three 30 minutes rest breaks at work and has to come home and rest while elevating the leg. The plaintiff was entirely accepted in her complaints by all medico-legal experts including Dr Rowe for the defendant.

115. I find that the plaintiff’s disabilities are not only worse towards the end of each day, but get progressively worse towards the end of a working week such that she has a lot of soreness on Thursdays and Fridays.

116. I find that when the plaintiff has a sore ankle she walks with a slight limp and goes down stairs as a person would with an injured leg. The plaintiff has had to give up her surf lifesaving activity and can no longer walk each morning with her mother. The plaintiff has suffered from fluctuating weight, but her inability to exercise has no doubt contributed to a significant extent to a weight gain since the accident. The plaintiff is not happy about this.

117. The plaintiff faces the possibility of two future operations, one a strong probability and the other a possibility. The plaintiff has been advised to have the hardware removed from the ankle. This may give her some improvement. There are no guarantees. The only reason the plaintiff has put this operation on hold is that she would need to make alternative arrangements in her hairdressing salon, as she will need four weeks off work.

118. I find that there is a 20% chance that the plaintiff will deteriorate by developing arthritis such that she will need a subtalar arthrodesis. There is no medical evidence as to when this might happen, even if it does. For the moment the medical evidence shows no evidence of the development of osteoarthritis. Nevertheless the plaintiff faces, in the distant future, the prospect that she may need a significant operation which will put her off work for many months. However, there is no evidence as to when, in the opinion of the medical experts, that operation would be necessary, if it becomes necessary at all. It could well be that any development of arthritis is a slow process and that the need for the subtalar fusion will post-date the plaintiff’s proposed retirement at age 65 years.

119. Counsel for the plaintiff submitted that 32% of a most extreme case was the appropriate award. Senior counsel for the defendant submitted that it should be 25% and could not be less than “the low 20’s”.

120. Section 16 of the Civil Liability Act 2002 requires the court to award damages for non-economic loss by assessing the severity of the plaintiff’s non-economic loss as a proportion of a most extreme case. There is then a table which converts such a percentage finding into a dollar figure.

121. I find that the plaintiff’s damages for non-economic loss should be 27% of a most extreme case. On the current tables this results in a dollar figure of $60,500. That is my award for non-economic loss.

DAMAGES – OUT-OF-POCKET EXPENSES

122. For the past, the out-of-pocket expenses are agreed at $443.10. Of course the plaintiff had a lot more treatment than that, but I was informed that most was covered by the public hospital system and was thus not chargeable or recoverable. On the basis of that assurance my award for past out-of-pocket expenses is the agreed figure of $443.10.

123. For the future, I award $8,000 as the current cost of the removal of the hardware in the ankle. I do not discount this figure, as plaintiff is only putting off that operation because of financial matters. Once she has her damages, she will be able to make arrangements to have the operation.

124. I have already recorded the medical evidence regarding the possibility of a subtalar arthrodesis. There is only a 20% chance of this being necessary in the future, and there is no evidence as to when it might be needed. An arthrodesis is very much a last resort to deal with the pain from osteoarthritis, and I find that if the operation is necessary, it will be many years in the future. There must be a substantial discount for this deferral of the expense. For the possibility of a future arthrodesis operation I award $2,000.

125. Finally, the plaintiff continues to take analgesics on a needs basis. This will continue for the rest of her life. Without performing any fine calculation, I award $3,000 for the cost of future analgesics.

126. The award for future out-of-pocket expenses is thus the total of these amounts being $13,000.

DAMAGES – GRATUITOUS ATTENDANT CARE SERVICES

127. The claim for damages for gratuitous attendant care services is governed by s 15 of the Civil Liability Act 2002. Section 15(1) defines “gratuitous attendant care services” to mean attendant care services:

1. that have been or are to be provided by another person to a claimant; and

2. for which the claimant has not paid or is not liable to pay.

128. By s 15(2) no damages may be awarded for gratuitous attendant care services unless the court is satisfied that:

1. there is (or was) a reasonable need for the services to be provided, and

2. the need has arisen (or arose) solely because of the injury to which the damages relate, and

3. the services would not be (or would not have been) provided to the claimant but for the injury.

129. By s 15(3) no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

1. for at least six hours per week, and

2. for a period of at least six consecutive months.

130. Finally, s 15 prescribes a dollar figure for the hourly rate. From the date of the accident to 20 November 2015 the hourly rate was $29.41. Since 21 November 2015 the hourly rate has been $29.98.

131. The gratuitous attendant care services for which the plaintiff claims have been provided largely by her husband, but also by her mother who has taken over the ironing duties.

132. I have no hesitation in find that there was and is a reasonable need for the services to be provided, and that the need has arisen solely because of the injuries suffered in the accident, based just upon the report of Dr Rowe for the defendant. I am also satisfied that the services would not have been provided to the plaintiff but for the injury. The division of labour in the household prior to the accident would most likely have continued. The husband gave some assistance with cooking and minor household tasks, but most fell to the wife. She seemed to have been quite happy to do them for the benefit of the family.

133. I also find that ever since the accident the gratuitous attendant care services have been provided for at least six hours per week. They have been provided for a period of at least six consecutive months, in that they have been provided from the date of the accident to the date of this judgment. Further, I find that they will be provided in the future until the plaintiff retires at age 65 years. I have already recited the way in which the plaintiff copes with her working day, which is by working extended hours to service the same number of customers, but then coming home and elevating her foot and resting. Below in this judgment I deal with the likelihood that the plaintiff will work to age 65 years. She will thus need her current level of gratuitous attendant care services to be provided for the next 16 years.

134. After age 65 the plaintiff will not work, on my findings. She will no longer need the same level of gratuitous attendant care services. I think it is likely that after age 65 she will need some services provided to her, but they will probably fall below the threshold. In any event, counsel for the plaintiff very sensibly limited the claim for future gratuitous attendant care services to the plaintiff’s retirement from work.

135. I find that if these gratuitous attendant care services were not provided to the plaintiff, then she would probably have to give up work right now. That is further support for my finding that there is a reasonable need for the services to be provided.

136. For six weeks after the accident the plaintiff was unable to weight bear and was on crutches. She was did no household chores during that period and her husband had to give her some minor assistance with showering and dressing. I find that the appropriate level of gratuitous attendant care services for those six weeks was three hours per day. For the first six weeks after the accident (2 May 2016 to 13 June 2015) the damages will be:

Six weeks x 21 hours x $29.41 =               $3,705.66

137. From the time the plaintiff returned to work in mid-June 2015 to the date of trial, I find that the plaintiff’s husband has taken on an extra three nights of cooking, as well as some hours of cleaning per week. Further, the plaintiff has not been able to iron (which is a standing activity) and this has been taken over to date by her mother. I find that the hours spent by the husband in cooking are not reasonable hours. I do not think that he is overstating the time he spends cooking, but I do not think it is reasonable to ask the defendant to pay a husband to spend two hours cooking a nightly meal four nights a week. It could be done in much quicker time than that.

138. I find that the appropriate number of hours for gratuitous attendant care services from 14 June 2015 to the present date is seven hours per week.

139. That has to be broken down into two periods because of the change in the hourly rate prescribed under s 15.

140. For the period 14 June 2015 to 20 November 2015 when the rate changed (21 weeks) the calculation is:

21 weeks x 7 hours x $29.41 =               $4,323.27

141. For the period from 21 November 2015 to 26 September 2017 (96 weeks) the calculation is:

96 weeks x 7 hours x $29.98 =             $20,146.56

142. The total for past gratuitous domestic assistance is the addition of those three amounts, which is $28,175.49. That is my award for past gratuitous attendant care services.

143. For the future, I have already made the finding that the plaintiff will need the same level of care to age 65 years (which is in part dependent upon the finding I make below of a likely retirement age from work). The multiplier on the 5% tables for 16 years is 579.5. The hourly rate is $29.98. I will deduct 15% for vicissitudes.

144. The calculation for the future is:

579.5 x $29.98 x 7 hours x 0.85 =             $103,371.78

DAMAGES – ECONOMIC LOSS AND LOSS OF EARNING CAPACITY

145. I have recited above the evidence regarding economic loss and the submissions of the parties.

146. I accept the submission of senior counsel for the defendant that not all of the reduction in sales and personal income since the 2014 financial year can be attributed to the injuries suffered in the accident. I have accepted the plaintiff when she says that she works longer hours to service the same number of customers.

147. Nevertheless, the plaintiff does have an interference with her earning capacity. She has to take three 30 minutes breaks during the day and I accept that she has not been taking on as many customers as she would have if she were uninjured.

148. I accept the submission of senior counsel for the defendant that for the first six weeks after the accident it would be inappropriate to compensate the plaintiff as if the loss demonstrated in the financial figures were entirely attributable to the accident. Nevertheless, the plaintiff had to employ three casuals who worked for short periods to keep the salon open and serve the clients. There would have been a cost involved in doing that, but no figures are put before me to demonstrate what wages were paid to those casuals.

149. Doing the best I can, I find that between 2 May 2015 and 13 June 2015 the plaintiff suffered a loss which is to be measured at $200 per week for six weeks, a total of $1,200.

150. I find that the plaintiff has not been able to work at full capacity since her return to work in mid-June 2015. I can approach this one of two ways. I can select a weekly figure to represent this reduction in earning capacity or I can select a lump sum. I have already accepted the submission of senior counsel for the defendant that not all of the reduction in sales and personal income can be attributed to the injury suffered in the accident. Nevertheless, on my findings, the reduction in income has partly resulted from the accident. Doing the best I can, I select a figure of $75 per week to reflect this reduction in earning capacity.

151. For the period between 14 June 2015 and 26 September 2017 (117 weeks) the calculation is:

$75 x 117 weeks = $8,775.

152. For past economic loss the award will be the total of these two figures being $9,975.

153. Pursuant to s 13(1) of the Civil Liability Act 2002 I find that the plaintiff’s most likely future circumstances but for the injury, would have been to work as a hairdresser in her own business until age 65. Pursuant to s 13(2) I will make a 15% deduction to reflect the possibility that for unforeseen reasons, including the fact that the plaintiff’s job is a physical one which requires standing, there may have in any event been some interference with future earning capacity.

154. For future loss of earning capacity, I firstly select a figure of $100 per week. The plaintiff is not going to improve. The first operation, which I find the plaintiff will have shortly, to remove the hardware may or may not improve her ankle and leg. The medical specialists agree that there is a possibility of development of osteoarthritis, even to the point where the plaintiff may need a subtalar arthrodesis. In the absence of any evidence from osteoarthritis being in existence at the present time, and in the absence of any medical opinion as to how long such arthritis might take to develop, I find that the plaintiff, being a determined and hardworking person, will continue working until age 65 being her retirement age if uninjured.

155. I also find that a figure of $100 per week is the appropriate measure of her reduction in earning capacity for the future. It might be more and it might be less, but there is a definite reduction in earning capacity. I have increased the figure over and above the $75 per week for the past economic loss, to reflect the fact that firstly the plaintiff will need four weeks away from work (which will not be a total loss as she will be able to employ casuals to cover the customers) and if osteoarthritis does develop the plaintiff will be have to work shorter hours (although this will not be a total loss as she could still keep the salon running with employed hairdressers). I will deduct 15% for vicissitudes.

156. The award for future loss of earning capacity will be:

$100 x 579.5 x 0.85 = $49,257.50.

CONCLUSION

157. There will be judgment for the plaintiff. I summarise the findings I have made above as follows:

HEAD OF DAMAGE	AMOUNT
Non-economic loss	$60,500.00
Past out-of-pocket expenses	$443.10
Future out-of-pocket expenses	$13,000.00
Past gratuitous attendant care services	$28,175.49
Future gratuitous attendant care services	$103,371.78
Past economic loss	$9,975.00
Future loss of earning capacity	$49,257.50
TOTAL	$264,279.77

158. My orders are:

1. Judgment for the plaintiff against the defendant for $264,279.77.

2. Order the defendant to pay the plaintiff’s costs.

3. Grant liberty to the parties to apply to my Associate if any different costs order is sought by a party.

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Decision last updated: 26 September 2017