Khaled v NSW Land and Housing Corporation

[2019] NSWDC 97

District Court

New South Wales

Medium Neutral Citation:	Khaled v NSW Land & Housing Corporation [2019] NSWDC 97
Hearing dates:	13-15 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Civil
Before:	Smith SC DCJ
Decision:	(1) Verdict and judgment for the defendants. (2) Plaintiff to pay the defendants’ costs. (3) Exhibits are to be returned.
Catchwords:	TORTS – Negligence – Personal Injury – Damages – slip and fall – failure to warn – duty of care – foreseeable risk – reasonable precautions to avoid risk – application of non-slip substance – pre-existing conditions – factual causation.
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Category:	Principal judgment
Parties:	Marwa Khaled – Plaintiff New South Wales Land & Housing Corporation – First Defendant Justine Davy – Second Defendant
Representation:	Counsel: Mr K Pierce – Plaintiff Mr W Reynolds – First Defendant Mr D P O’Dowd – Second Defendant   Solicitors: Stewart Cuddy & Mockler – Plaintiff Wotton & Kearney – First Defendant Curwoods – Second Defendant
File Number(s):	2017/298089
Publication restriction:	None

Judgment

1. In 2008 Mrs Khaled moved into the property at 16 Neirbo Avenue, Hurstville with her husband and their eight children. The main access to, and egress from, the house on the property was by way of a sloping walkway and a patio. In the course of their tenancy of the property Mrs Khaled and her family walked over the walkway many thousands of times without incident.

2. On 30 August and 1 September 2014, Mr Tony Davy, the husband of the owner of the property, applied to the walkway a substance that he had previously used on a sloping area to create a non-slip surface. He did not tell Ms Khaled that he had done this.

3. Mrs Khaled says that on 13 October 2014 she heard it starting to rain and she walked out onto the footpath in order to collect some leaves she had left to dry on the front lawn. She says she slipped and fell on the walkway and injured herself.

4. Mrs Khaled seeks an award of damages from the owner of the house, Mrs Justine Davy, and the NSW Land and Housing Corporation (Housing) which had rented the house from Mrs Davy and let it to Mrs Khaled. Her claim is based on the allegation that her injury was caused by the defendants’ negligence. Ultimately, the plaintiff alleged that the breach of duty consisted of three matters:

1. not engaging a licensed, competent tradesman to oversee the safety of the walkway;

2. the application by Mr Davy of a substance that was not suitable for the walkway; and

3. the failure to warn Mrs Khaled that the substance had been applied.

Although it was denied by the plaintiff, this refinement marked a significant shift in their case and took it outside of her pleaded case. I would dismiss it for that reason; however, for reasons I will give, the plaintiff has failed to establish any negligence or that any injury was caused by any act or omission of the defendants.

5. The issues in these proceedings are to be determined within the framework of the Civil Liability Act 2002 (NSW). Before turning to the relevant provisions of that Act, it is necessary briefly to set out the evidence and my findings of fact.

The relevant facts

6. Mrs Davy purchased the Hurstville property in 1992 and lived there with her family for six months before going to live in another property. After Mrs Davy and her family left the property, she let it to a number of tenants. The first of these lived in the property for six months. The second lot of tenants lived in the property for 13 years. Subsequently, in 2007, Mrs Davy let the property to Housing which, in turn, let the property to Mrs Khaled. Mrs Khaled moved into the property in 2008 with her family which included her eight children.

7. From 1992 until 2008 the property had been well cared for and maintained. Mr Davy said in evidence, and I accept, that he and his wife had walked over the sloped walkway and patio on many occasions both in the rain and when it was dry. He had never found that the surface of those areas was slippery. Nobody in that period had ever complained to him that the surface was slippery or that anybody had ever slipped or fallen over on it.

8. Mr Davy had long experience in property maintenance. He first became involved with rental properties and their maintenance when his parents had rental properties in the 1970’s. He and his wife acquired a number of rental properties themselves. He has been involved in the maintenance of those properties. Mr Davy is the head of maintenance at Wesley College at the University of Sydney. In that role, he used a product called Dy-Mark TreadRite to reduce the slipperiness of sloped surfaces in and around the College with satisfactory results.

9. Mrs Khaled and her family did not look after the property. It is unnecessary to list exhaustively the extent of their neglect. However, it is important to note a few of the matters that were in evidence. The family did not maintain the garden. Windows, doors and glass screens were smashed and removed, holes were smashed in plasterboard walls, the garage door was broken, the floors inside and out were dirty and covered in grime, and the exhaust fan in the kitchen was never used leading to disrepair of adjacent ceiling and light fittings. Importantly, the shrubs and plants around the sloped walkway were rarely, if ever cut back and the plant debris from those and trees on and around the property was, generally speaking, left where it fell. Mrs Khaled did not seriously contest any of this evidence, but explained it by the fact that one of her sons had a severe mental illness. I accept that that might explain some of the damage to the property, however the cause of the disrepair and neglect does not matter. What matters is that, at least by the time of Mrs Khaled’s fall in October 2014, the property, including both the house and the garden, was dirty and in a state of disrepair.

10. As the sloped walkway and patio constituted the main entrance to and egress from the house, and Mrs Khaled, her husband and each of her children left and returned to the property at least once every day, there can be no doubt that they walked over those areas on tens, if not hundreds of thousands of times. People visiting the house over that period (including Mr Davy) added to that usage.

11. Mrs Khaled gave evidence that the walkway was slippery and that she complained about the slipperiness of the surface many times just as she had complained about the cockroaches, sewage in the backyard and many other things. She said that she complained about slipperiness on each occasion that she saw Mr Davy. She also said that her children slipped over on the surface. I reject her evidence about those matters. First, it was entirely inconsistent with Mr Davy’s evidence which I accept without hesitation. He said that he had received only one complaint about slipperiness. That was in an email in June 2011 from Housing, not from Mrs Khaled even though she would frequently ask him directly to undertake repairs on the house. Mr Davy’s immediate response to receiving the complaint was to attend the property and to apply a non-slip product to the surface of the walkway and part of the patio. He repeated the application in 2013 and returned in August 2014 to apply a different substance. He explained that he did this because these products wear off and so do not last forever. His evidence was, to some extent, corroborated by Mrs Khaled herself who said that she saw Mr Davy applying some product in response to a complaint from her. The details of the application were different in her evidence, but that is most likely because, while Mr Davy, experienced as he was in property maintenance, knew what he was doing, Mrs Khaled did not.

12. Secondly, Mrs Khaled’s evidence was given only in cross-examination when she was asked about the frequent use of the walkway and was not responsive to any questions asked of her. In other words, she gave the impression that she was fabricating these incidents in response to what she perceived to be a difficulty for her case.

13. The only evidence that might support the conclusion that the walkway was slippery was that Mrs Khaled had fallen twice. Her evidence about the first of those incidents was as follows:

“Q. The fall that you refer to, is that the 2009 fall that you referred to earlier?

A. INTERPRETER: Yes.

Q. Where did that fall happen?

A. INTERPRETER: On the ramp.

Q. When that fall happened, what were you doing on the - when you say "on the ramp", are you referring to the same ramp that was the location of your injury in October 2014?

A. INTERPRETER: Like, I have to always say, like, the ramp because it's the entrance to the house.

Q. In 2009, what happened to you on the ramp?

A. INTERPRETER: The same fall. I landed on my back.

Q. So when you say "the same fall", what happened to you that you landed on your back in the 2009 fall?

A. INTERPRETER: I - as well, you know, I had the same fall. I stepped - you know, I saw my legs and I landed on my back. I went to the doctor, I had investigations as well.

Q. Why did you slip on the ramp in 2009?

A. INTERPRETER: I was going out, you know, I was leaving the house.

Q. What caused you to slip?

A. INTERPRETER: I don't know. I was walking and I fell.

Q. In 2009, did the ramp have the same tiled surface?

A. INTERPRETER: Yes. Same tiles.

Q. Did the ramp have the same slope?

A. INTERPRETER: Yes.

Q. And that is a slope lowering as you left the premises, from the start of the ramp to the bottom of the ramp.

A. INTERPRETER: Yes.”

14. It is noticeable in this exchange that Mrs Khaled did not say in evidence that she slipped in that fall. That suggestion in fact came from her Counsel [1] . Her evidence was that she was walking and she fell.

    1. Transcript 32.39.

15. Earlier in her evidence, Mrs Khaled did say, by inference, that the ramp was slippery at the time of the 2009 incident:

“Q. Before October 2014 and the years before, when you were at the house, did anyone put anything on the ramp to change the surface of the ramp? And was this just before your fall, or longer ago?

A. INTERPRETER: Like, after the first fall, I think the landlord came, because I see him a lot, you know? They - and he brought some kind of powder. He spread it on the ramp, and then, like - and then, you know, put water on it and that's it. Wash it with the water.…

Q. The powder that you referred to, did that powder stay on the ramp or not?

A. INTERPRETER: No, because it become more slippery. It become more slippery.…Q. When you complained about the ramp, did they do any more to fix it?

A. INTERPRETER: No.

Q. And what was the problem with the ramp that you complained of?

A. INTERPRETER: Slippery.

Q. And do you recall what year that person came out and you made those complaints?

A. INTERPRETER: Like, I made a complaint that I fell, and he came and he did something, or he fix it.

Q. When you say it's after 2009‑‑

INTERPRETER: ..(foreign language)..

PIERCE: Sorry? Just‑‑

WITNESS (INTERPRETER): Like, after I fell into ..(not transcribable)..I saw him once. He came and spray that powder and he did nothing else.

…

Q. When you say it's after 2009, what year would it have been?

A. INTERPRETER: I don't know, maybe 2010, 11, 12. Because you talk to him now and he would reply to you after two years.”

16. This is the evidence that corroborated Mr Davy’s evidence about his response to the complaint received by him in 2011. For the reasons I have explained, I prefer Mr Davy’s evidence, both as to the slipperiness of the walkway and his response to the complaint. In particular, I reject Mrs Khaled’s evidence that the walkway became more slippery.

17. Mrs Khaled’s evidence about her fall in 2014 was as follows:

“Q. Did you have a reason for going outside when you were in the house on that day?

A. INTERPRETER: It was a sunny day and the reason why there was some leaves I put outside to dry them and when it start raining I went outside to collect them.

…

Q. When you say you were in the house when you saw it started to rain, do you recall what part of the house you were in?

A. INTERPRETER: I was at the – I was in the kitchen. I was in the kitchen and the living room and I had a balcony outside. It was covered you know like with kind of a tin things. So when it start raining you can hear the drops on that tin roof. So I knew it was raining.

Q. When you went outside were you wearing anything on your feet?

A. INTERPRETER: No.

…

Q. Yes? So, when you heard the rain, can you tell his Honour what your movement was from where you were in the house?

A. INTERPRETER: Like, for the house, the kitchen and the living room, they are joined. And they are at the end of the house. Then there was a corridor, so I went through the corridor. I went outside to the balcony or veranda, then before I arrived to the area where the grass is, and at this, I had the fall. I fell.

…

Q. When you fell on the ramp, what was the floor of the ramp made of?

A. INTERPRETER: The kind of the flooring?

Q. Yes.

A. INTERPRETER: Tiles.

Q. At the sides of the ramp, was there any rail?

A. INTERPRETER: Yes, …

…

Q. When you were coming down the ramp on the occasion that you were injured, were you holding on to anything?

A. INTERPRETER: No

Q. You referred to a handrail. Why weren't you holding on to that?

A. INTERPRETER: Like, they were very low and I had back pain. So I can't stand that low to hold to the rails.

Q. As you came down the ramp, what happened to you?

A. INTERPRETER: I was going down, slowly. And then I slipped and I all - you know - all I know that I saw myself landed on my back.

Q. When you say you slipped, what did you slip on?

A. INTERPRETER: On the tiles.

Q. You say you landed on your back when you slipped. What motion did your body go through? What happened to your body?

A. INTERPRETER: Can I stand up and show you?

…

Q. Well can you - sorry - would you mind just describing, just saying what's happening?

A. INTERPRETER: I was walking - I was walking - that. I fell. My legs were up in the air, and I landed on my back. I hit my head to the floor, and I hit my‑‑

…

Q. When that happened, where did you end up? Where did you end up in the area when you'd fallen over?

A. INTERPRETER: I took the first step, and the second step I had the fall.

Q. And when you landed on your back, were you still on the ramp, or were you somewhere else?

A. INTERPRETER: No, when I fell, I fell on the ramp.

INTERPRETER: She wants to describe to me. When she‑‑

A. INTERPRETER: - I had the fall, like, I feel on the tiles at - at the end of the tiles. So like, after - the end of the ramp, and then there is like, cement. But when I fell, I fell on the tiles.”

18. The highest that Mrs Khaled’s evidence goes in respect of the 2014 incident is that she had heard rain on the roof, was going slowly down the ramp and then slipped on the tiles. She did not say that the tiles were wet or that the tiles themselves were slippery.

19. There are a number of possible inferences as to the cause of Mrs Khaled’s fall that could be drawn from the totality of the evidence: the tiles may have been wet and were slippery because of that; there was debris including leaves or twigs on the walkway that caused Mrs Khaled to lose her footing; there was grime or a build-up of dirt on the walkway that caused Mrs Khaled to fall; the soles of her feet were slippery. Only the first of these supports Mrs Khaled’s claim in negligence.

20. Before considering the evidence about the slipperiness of the tiles, I will deal with the late submission that Mr Davy made the tiles slippery by his application of a product to the tiles in late August and early September 2014. I say “late”, because the statement of claim did not contain any assertion that reflected this submission. The submission was made only after evidence emerged of the vast number of journeys that had been made safely over the walkway by Mrs Khaled and her family. It was supported, on any view, by only the slightest of evidence.

21. Mr Davy’s evidence was that he came to the property on 30 August 2014 and again on 1 September 2014 and applied a product called Dy-Mark TreadRite. The technical data sheet for that product was in evidence [2] . That document included information that the product was suitable for the following surfaces: untreated timber, concrete, primed metal, brick and clay pavers and pebble finish surfaces. It also contained the following statement: “NOT SUITABLE FOR USE ON RAMPS”. There were the following instructions on the data sheet for preparation:

“Refer to Disclaimer before use. A test patch should always be carried out. Clean surface of all dirt, grease, oil, salt and chemical contaminants. Remove any loose rust and flaking paint. Smooth, hard or glossy surfaces should be sanded to create a surface profile. When removing mould and mildew you must use a domestic bleach cleaner, soak clean and scrub and allow surface to dry.”

2. Exhibit 5.

22. Mr Davy’s evidence was that after he had applied the product, the area to which it was applied was slightly gritty: T151.23. He was cross-examined at length on his use of the product on the walkway. He admitted frankly that when he applied the product at the property he was unaware of the notice that it was not suitable for use on ramps: T179.43. However, his evidence that the product left the walkway slightly gritty was never challenged and it was never put to him that the walkway was in fact more slippery after the application of the product.

23. The only evidence that could support the plaintiff’s submission about this product was the note on the data sheet that it was not suitable for use on ramps. However, that note alone does not, in my view, establish that the product made the surface of the walkway more slippery and I accept Mr Davy’s evidence that after he applied the product the surface was slightly gritty. That would mean, I infer, that the surface was less likely to be slippery, if it ever was slippery.

24. A note that a product is not suitable for a particular use can mean any number of things. It is likely to mean here that, when applied to a ramp, the product does not reach the level of slip resistance required by a particular standard. The note in question was immediately preceded by the following statement:

“TreadRite™ has been tested for compliance with AS 4586-2013, Slip resistance classification of new pedestrian surface materials (classification P4).”

25. Of course, the walkway here was not a “new pedestrian surface” and was materially the same as it was when Mrs Davy purchased the property in 1992. That means that the Standard most likely did not apply and so the note about the suitability of the product was irrelevant.

26. In any event, there was nothing in the evidence to establish that, even if the Standard did apply, the product made the surface more slippery. For that reason, the plaintiff’s submission relying on Mr Davy’s efforts in August and September 2014 to make the walkway safer must be rejected.

27. I am not satisfied on the balance of probabilities that the tiles on the walkway were ever slippery and, in particular, that they were slippery at the time Mrs Khaled says she fell on 13 October 2014. First, Mrs Khaled’s evidence did not go that far except when she said that Mr Davy’s intervention in 2011 made the tiles more slippery and I reject that evidence. Secondly, the evidence that it was raining was sparse. Mrs Khaled said only that she knew it was raining because she could hear “drops on the roof”: T9.43. She did not say that there was rain on the ground out the front of the house. Further, the records from the Bureau of Meteorology for the area on that day reveal that there was no rain until after 6:00 pm. There is always the possibility that those records did not capture every drop of rain that fell in the area, but they do make it more likely than not that there was no substantial rain until well after Mrs Khaled’s fall. Thirdly, the fact that only Mrs Khaled reported any slipperiness during 22 years of regular foot traffic by both adults and children supports the view that the tiles were not slippery in either 2009 or 2014.

25. On the basis of that conclusion, the cause of Mrs Khaled’s fall was something other than slippery tiles.

Were either or both the defendants negligent?

29. The defendants admitted that they owed a duty to take reasonable care for the safety of people on the property. The question whether they breached that duty must be answered by reference to the Act.

30. Section 5B(1) of the Act provides:

5B   General principles

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

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

(b)  the risk was not insignificant, and

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

31. In determining the third of these matters, the Court is required by s 5B(2) to consider the following (amongst other relevant things):

(2)  …

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

(b)  the likely seriousness of the harm,

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

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

32. These matters must be addressed prospectively rather than with the wisdom of hindsight: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31].

33. The plaintiff identified the relevant risk of harm in her statement of claim as the “risk to the plaintiff of injury, disability, loss and harm in the event of lack of due care and skill, advice, warning and information to the plaintiff”[3] . I assume in the plaintiff’s favour that “due” here is intended to refer to the precautions that would be taken by a reasonable person in the circumstances. On that understanding, the plaintiff’s formulation of the risk of harm is entirely unhelpful because what is “due” depends on the risk of harm. One cannot assess what precautions ought to be taken without knowing what the precautions are intended to address.

    3. Statement of Claim filed 3 October 2017 at [9].

34. The risk of harm in respect of which the issue of negligence must be assessed is the risk of landing on the hard surface of the ramp from slipping on the tiles of the ramp.

35. The ramp had been used over many years by many people on many occasions. There was no evidence that the covering of the ramp, a form of ceramic tile, was inherently slippery and I have found that the surface was not in fact slippery. Apart from one complaint by Mrs Khaled, there was nothing to indicate to either defendant that there was a risk that a person might slip on the ramp. I find that neither defendant knew of that risk or ought to have known about it. For that reason, I conclude that the risk of a person slipping on the ramp and being injured when landing on the tiles was not foreseeable.

36. Further, even if the risk of that harm was foreseeable, that risk was insignificant because the risk had never eventuated in spite of hundreds of thousands of journeys across the ramp over many years.

37. Those two conclusions make it unnecessary to consider the third element of s 5B(1); however, I will address it for the sake of completeness. The plaintiff’s pleaded case was that the defendants breached their duty of care because they[4] :

    4. Statement of Claim filed 3 October 2017 at [11].

“a. Failed to comply with the provisions of the lease and the Housing Act and/or the Residential Tenancies legislation;

b. Failed to provide safe and proper access and egress to the front of the premises;

c. Failed to provide safe and proper walking surface;

d. Failed to exercise any or reasonable care for the safety and well-being of persons using the said inclined tiled pathway upon the premises;

e. Failed to carry out, or cause, repair or replacement of the said inclined tiled pathway so as to render same safe in a timely manner, properly or at all;

f. Utilised incompetent staff or subcontractors (if at all);

g. Failed to manage or supervise remedial works to the pathway and their proper completion, properly or at all;

h. Failed to devise, implement or maintain any or any proper system to ensure that works to the pathway were carried out in a workmanlike manner and were rendered safe;

i. Failed to allow for the risk of distraction or momentary inattention by the Plaintiff in the circumstances of proceeding upon the pathway in the circumstances pleaded above;

j. Such further or other particulars of breach as appear from the evidence.”

38. At the end of the hearing, Counsel for the plaintiff effectively abandoned most of these particulars and relied on the following matters [5] :

    5. Transcript 210 – 211.

1. the application of the TreadRite product to the ramp in August and September 2014;

2. failure to increase the height of the handrail;

3. removal of the non-slip coatings that had previously been applied by Mr Davy; and

4. using an unqualified person (Mr Davy) to apply the TreadRite product.

39. There is some tension between the third and fourth of these matters. If it was reasonable to rely on Mr Davy to apply non-slip product in previous years, why did that change in 2014? In any event, there are difficulties with each of the matters relied on. First, the application of the TreadRite product did not make the ramp slippery. Secondly, there was no evidence that an increase in the height of the handrail might have affected the relevant risk of harm. Thirdly, the evidence did not establish that the non-slip coatings were removed. The highest that the evidence went was that, in Mr Davy’s experience, such coatings wore out over time. Mr Davy addressed that by applying a further non-slip substance. Fourthly, the evidence did not establish that a qualified person would have done anything differently. As I have found, the non-suitability referred to in the product data sheet was irrelevant to the surface of the ramp because the Standard to which that sheet referred did not apply to the ramp. Further, the application of the product left a gritty texture on the tiles of the ramp and did not make the ramp slippery.

40. The probability of the harm occurring was very low. As I have found, it had happened once, and at the most, twice over many years and amongst many thousands of journeys across the ramp. The likely seriousness of the harm was not great. It can be readily accepted that a person who slips and falls on a hard surface such as the ramp might suffer soft tissue injuries and possibly, depending on their age and state of health, a fracture of a hand, arm or even hip. While such injuries are not insignificant they are not relatively serious, even in combination. There was no real evidence of the burden of taking the precautions the plaintiff said ought to have been taken. It was suggested in argument that non-slip tape, a relatively cheap precaution, could have been applied, but that was not the pleaded case and, in any event, it was not clear precisely where it ought to have been placed. Certainly, the fact that such tape was placed on the ramp does not 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: s 5C(c) of the Act.

41. Taking those matters into account, a reasonable person in the defendants’ positions would not have taken the precautions relied on by the plaintiff. Indeed, it was reasonable in all the circumstances for the defendants to have done nothing.

42. For those reasons, the defendants were not negligent and there must be a verdict in their favour.

43. I will deal very briefly with the question of causation and damages that might have arisen if the defendants had been negligent.

44. In order to be entitled to an award of damages, the plaintiff must satisfy the Court that the defendants’ negligence “was a necessary condition of the occurrence of the harm” and that it is appropriate for the scope of the defendants’ liability to extend to the harm so caused: s 5D(1). The second of these was not in issue.

45. The difficulty for the plaintiff in respect of the question of factual causation is that, prior to her fall in October 2014, she had suffered from a number of conditions that are difficult to separate from the conditions she currently claims to have. She submitted [6] that, while there was a level of pre-existing problem in her left shoulder, neck and arms which were primary complaints, those matters were made worse by the subject accident.

    6. Transcript 204.15.

46. The best support for the plaintiff’s case comes from a report from Dr Popoff. Mrs Khaled was referred to Dr Popoff, a shoulder surgeon, in June 2013 with a “year history of left shoulder pain” which had gradually been getting worse. She was diagnosed with impingement syndrome with a secondary scapula dyskinesia and treated with an injection of corticosteroid and a short course of anti-inflammatory medications. She was referred to physiotherapy. When Mrs Khaled returned to Dr Popoff for review in July 2013 she refused further corticosteroid treatment and indicated that she had not attended any physiotherapy. She was given an exercise program and an MRI was organised. Dr Popoff reviewed Mrs Khaled again in September 2013. She had not been performing the exercise program and appeared to Dr Popoff to have been taking a very passive approach to rehabilitation which was leading to the recalcitrance of her condition.

47. Mrs Khaled saw Dr Popoff again in November 2013. This time he noted that she was “much better”, that she had lost her pain avoidance behaviour and that her function was very good. The plaintiff argued that this established that her condition had improved but then deteriorated after the fall in October 2014. I accept that submission to some extent. It is clear that there was an improvement in Mrs Khaled’s shoulder condition from June 2013 to November 2013. However, Dr Popoff noted in November 2013 that she still had complaints of “occasional periscapular pain” and that that would be related to some residual problems with scapular posture. He hoped that that would improve with further rehabilitation. There was no evidence that Mrs Khaled undertook any further rehabilitation. In light of that, I am not satisfied that there was any improvement in the residual problems referred to by Dr Popoff.

48. After her accident in 2014 Mrs Khaled saw her general practitioner, Dr Amin. Dr Amin referred Mrs Khaled to an orthopaedic surgeon, Dr Loefler. On examination, Dr Loefler noted that her range of motion was restricted in a global fashion and that all her motions seemed to cause pain. Mrs Khaled insisted on having an MRI. Dr Loefler noted that the films showed some desiccation of the lumbar spine and that the cervical spine was “essentially normal”. His opinion was that she clearly did not require surgical intervention but did require regular physical exercise to strengthen her neck and core muscles. Dr Loefler saw Mrs Khaled again one year later in December 2015. He noted that there was no interventional treatment that would help her and said that she had to help herself through regular physical exercise and, if possible, a more positive outlook on life.

49. The plaintiff also relied on reports from Dr Susan Megaly. These reports do little to assist because, while they list Mrs Khaled’s complaints, they are said to have arisen from two falls and there is no examination of the impact of the fall in October 2014.

50. There were also reports in evidence from Dr Wallace, an orthopaedic surgeon. I found these reports to be particularly unhelpful. While Dr Wallace set out the history of investigations into Mrs Khaled’s conditions from May 2009 and that showed pre-existing conditions, and he expressed the opinion that her “current cervical and lumbar spinal disability is due to injuries sustained as a result of falls at home in 2009 and 2014” he did not explain the extent of the injury caused by the later fall. He did, however, say that Mrs Khaled did not require further formal conservative treatment and did not require operative intervention.

51. The second defendant relied on the report of Dr Maxwell, an orthopaedic and spinal surgeon. Dr Maxwell noted Mrs Khaled’s long history of depression, anxiety, and neck and back pain. In respect of the consequences of the 2014 fall, he expressed the view that she would have had contusions from the fall which would have settled in 4-6 weeks and that the injuries claimed in her statement of particulars were not due to the 2014 fall. He said that she did not require any further treatment.

52. In my view, the weight of the evidence is against Mrs Khaled. I am satisfied that Mrs Khaled suffered some minor soft tissue injury when she fell and that any negligence would have been a necessary condition of the occurrence of that harm. However, I am not satisfied that the impact of that injury added in any way to Mrs Khaled’s pre-existing conditions. For those reasons, subject to one thing, I would make no award of damages in her favour even if she had established that the defendants were negligent. Certainly, her injuries would not have reached the threshold required for the award of general damages and the evidence established that she did not require any further intervention. The one proviso is that there was an agreed figure of $3,000 for out of pocket expenses. Although there was no evidence of the particulars of those expenses, given that there was an agreement between the parties, I would award Mrs Khaled the amount of $3,000 in respect of out of pocket expenses.

Orders

53. The orders of the Court are:

1. Verdict and judgment for the defendants.

2. Plaintiff to pay the defendants’ costs.

3. Exhibits are to be returned.

**********

Endnotes

Decision last updated: 05 April 2019