Manmi v Manmi

[2019] NSWDC 96

District Court

New South Wales

Medium Neutral Citation:	Manmi v Manmi [2019] NSWDC 96
Hearing dates:	31 January 2019 - 1 February 2019; 15 March 2019
Date of orders:	03 April 2019
Decision date:	03 April 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Verdict and judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. (3) The parties have liberty to apply within 14 days for a different costs order to that set out in (2) above. (4) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – slip and fall – whether mat in bathroom was negligently placed or left by defendant – whether breach of duty of care – issue of causative link to plaintiff’s dizziness and neck injury – whether increased need for future commercial care established
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 Curtis v Harden Shire Council [2014] NSWCA 314 Dillon v Hair [2014] NSWCA 80 Hodgson v Sydney Water Corporation [2016] NSWDC 361 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jay v Baker [2018] NSWDC 270 Mason v Demasi [2009] NSWCA 227 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 Serrao v Cornelius (No 2) [2016] NSWCA 231 Smith v Alone [2017] NSWCA 287 Smith v Zhang [2012] NSWCA 142 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Swain v Waverley Municipal Council (2005) 220 CLR 517 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wilkinson v Law Courts Ltd [2001] NSWCA 196
Category:	Principal judgment
Parties:	Shwan Manmi (Plaintiff) Rang Manmi (Defendant)
Representation:	Counsel: R Brown (Plaintiff) M Newton (Defendant)   Solicitors: Law Partners Compensation Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant)
File Number(s):	2017/00067745

Judgment

1. These proceedings relate to a claim by the plaintiff, Mr Shwan Manmi, against his brother, Mr Rang Manmi, in negligence for damages for personal injuries alleged to have been suffered by the plaintiff in a fall on 10 August 2014 at a home owned by the defendant. The plaintiff asserts that he slipped on a bath mat that was placed on the floor in front of the hand basin in a bathroom in the house, fell backwards and struck his head and neck on the edge of the bath tub, causing him injuries.

2. Despite the extent of the injuries alleged in the pleading and particulars filed by the plaintiff, at trial the claim was limited to an alleged exacerbation of a soft tissue injury to the plaintiff's neck and severe symptoms of dizziness which it was alleged have occurred from the date of the accident to the present and were caused by the fall.

3. The defendant denies any liability.

4. The proceedings are brought at common law as altered by the provisions of the Civil Liability Act 2002 (NSW) (“CLA").

The pleadings

5. The plaintiff relied on a Statement of Claim filed on 3 March 2017. The plaintiff claimed as follows:

1. The defendant was the registered proprietor of premises in Middle Hope Street Bonnyrigg Heights in Sydney in New South Wales;

2. In about May 2012 the defendant granted the plaintiff the right to lodge at the premises under an oral agreement. The plaintiff claims that it was agreed that he would pay the defendant $410 per month for the right to lodge at the premises;

3. On 10 August 2014, the plaintiff was walking in the bathroom of the premises when he slipped on a mat that was situated on the floor of the bathroom. As a result of slipping on the mat on the floor of the bathroom, the plaintiff claims that he fell and sustained injury (paragraphs 4-5);

4. The defendant owed a duty of care to the plaintiff and breached that duty. Numerous particulars of negligence are relied upon. Essentially it is alleged that the defendant placed a mat on the bathroom floor that was slippery and that the defendant knew or should reasonably have known that the mat on the floor of the bathroom was a slip hazard and was unsafe. It is particularised that the defendant should have ensured that the mat on the floor of the bathroom was a non-slip mat and also should have warned the plaintiff of the presence of the slippery mat;

5. The plaintiff's injuries particularised include injury to the back of the head, injury to the neck, left shoulder and left arm as well as severe dizziness and headaches. Ongoing disabilities are pleaded but, as indicated above, the only restrictions relied on at trial were an exacerbation of a pre-existing soft tissue injury to the plaintiff's neck and severe dizziness;

6. An alternative claim for breach of contract through the breach of implied terms is made.

6. In paragraph 11 of the Statement of Claim, it is asserted that the plaintiff is entitled to aggravated damages based on the fact that the defendant had actual knowledge of the danger by the plaintiff informing the defendant of the slippery nature of the floor when a mat was placed on it. No evidence was given by the plaintiff orally in support of this matter. It was not pressed in submissions.

7. The plaintiff filed a Statement of Particulars on 3 March 2017 which was generally consistent with the injuries particularised in the Statement of Claim.

8. The defendant relied on a Defence filed on 25 October 2017. In the Defence, the defendant:

1. Denied the relief claimed by the plaintiff;

2. Denied that there was any agreement between the plaintiff and the defendant for the plaintiff to pay rent to the defendant and said that the plaintiff contributed to the payment of utility bills on a pro rata basis only;

3. Disputes the particulars of negligence;

4. Asserts that the risk of slipping on the bathroom mat and falling in the bathroom was insignificant in all the circumstances, the defendant was not reasonably required to take the precautions alleged by the plaintiff in the Statement of Claim, says that any breach did not cause the plaintiff's loss and asserts that the plaintiff had been diagnosed with limb-girdle muscular dystrophy which affected his mobility and balance. It was alleged that this was the cause of any fall;

5. Pleads that the risk of injury is an obvious risk within ss 5F and 5G of the CLA and that it was not reasonable to require the defendant to warn the plaintiff of the presence of the risk;

6. Asserts contributory negligence by the plaintiff failing to take care to avoid, inter alia, an obvious and inherent risk.

The plaintiff’s evidence

9. The plaintiff gave oral evidence and tendered substantial medical evidence. The plaintiff also tendered photographs of the bathroom in question and a video of the bathroom which was taken in May 2015 showing what was alleged to be the mat involved in the fall.

The photographs of the bathroom

10. Admitted into evidence were a number of photographs taken of the bathroom apparently in 2017, some three years after the accident. The photographs reveal a raised bath tub, a toilet, and a basin. The floor of the bathroom was tiled. Some of the photographs showed a mat. The evidence was that this was not the mat which was present at the time of the accident. The photographs suggest that the bathroom was of a fairly large size. The plaintiff later gave evidence that the mat on the floor on the day of the accident was in a very similar position to the mat shown in the photographs (see Exhibit A pages 1 and 6-7; T12.30).

The video

11. Part of Exhibit A was a video which was shown in court and which was admitted into evidence over objection from the defendant. The plaintiff gave evidence that the video:

1. Was made by him in May 2015;

2. Showed the red mat which was on the floor of the bathroom at the time of the accident in question;

3. Showed the plaintiff wearing the leather thongs or sandals which he was wearing on the day in question;

4. Showed the plaintiff moving the mat with the toe of his foot and with a hiking stick. The mat seems to be able to be moved fairly easily by the plaintiff using the toe of his foot and the hiking stick.

Medical reports

12. The plaintiff tendered a number of treating medical reports, radiological investigations, clinical notes and a medicolegal report.

13. As stated above, the plaintiff claims that he has suffered severe dizziness from the time of the accident. He gave oral evidence that he did not suffer dizziness prior to the accident. However, the plaintiff conceded a fall in 2007 which had led to proceedings in this court in which he injured his back, neck and left side and for which he received compensation. The plaintiff readily admitted extensive ongoing pain and problems with his neck, back and his left side arising from the accident in 2007. In addition, the plaintiff was diagnosed with muscular myopathy in 2011 which appears to be a hereditary muscular disease from which his sister apparently also suffers. A significant issue in the case is whether the dizziness which the plaintiff claims can be connected in any way to the accident. The plaintiff undertook extensive investigations by medical experts to determine the cause of his alleged dizziness and to determine whether anything could be done for it.

CT of the cervical spine dated 13 July 2015

14. The plaintiff tendered a CT report in relation to his cervical spine undertaken on 13 July 2015. The CT scan report noted mild spondylitic changes, minor disc bulges at C3/C4, C5/C6 and C6/C7 but referred to no other abnormalities.

MRI of the cervical spine dated 5 May 2015

15. An MRI of the cervical spine found a reversal of the normal cervical lordosis which was attributed to muscle spasm, a minimal disc bulge at C5/C6 but noted no other relevant impairment. See Exhibit A page 40.

Report of Dr Andrew Duggins dated 7 April 2015

16. The plaintiff relied on a report of Dr Andrew Duggins, neurologist, dated 7 April 2015. The history referred to the plaintiff presenting at the Emergency Department of a hospital with an exacerbation of a nine month history of dizziness. The report refers to the plaintiff’s dizziness having been fluctuating since it commenced immediately after a fall in August 2014 which resulted in a blunt head injury to the neck and head. Dr Duggins noted considerable functional disability out of proportion to the objective deficits. On examination, Dr Duggins could not find objective signs in support of his provisional diagnosis of benign paroxysmal positional vertigo. He noted weaknesses in the plaintiff's muscles particularly in the legs. He expressed the opinion that the plaintiff had a recessive limb girdle muscular dystrophy as well as benign paroxysmal positional vertigo, although the plaintiff was relatively asymptomatic on examination.

Report of Dr McGuinness, ear, nose and throat specialist dated 18 May 2015

17. In this report, Dr McGuinness found normally functioning ears, normal cranial nerve examination and negative testing for positional vertigo. Dr McGuinness stated that he initially suspected that the plaintiff had benign positional vertigo following his fall but he could see no signs of this. He wondered whether the plaintiff’s vertigo was related to other neurological problems or whether it was cervicogenic following his neck injury.

Reports of Dr A Sanki, general surgeon

18. The plaintiff relied on a number of reports of Dr A Sanki.

19. In his first report dated 5 August 2015, Dr Sanki noted that the plaintiff had undertaken tests and that Dr Ell, neurologist, had not been able to find a reason for his dizziness. A physical examination showed no significant abnormality apart from a reduced range of movement of the cervical spine with painful movements. Neurological tests were reported to be normal. After examining the radiological evidence, Dr Sanki noted that the plaintiff's features were consistent with muscular spasm in the cervical spine and physiotherapy was advised.

20. In a report dated 25 January 2016, Dr Sanki stated:

“He had seen as you know many specialists including ENT specialist, Neurosurgeon, Neurologist. No one has been able to verify the cause of his vertigo and no one has been able to explain why he has got a typhus in the cervical spine. As you know the patient is suffering from muscular dystrophy … I will be pleased if you could arrange for the patient to have muscular exercises to strengthen the muscles of his cervical spine, dorsal spine and lumbar spine through an EC Plan."

Report of Dr G Dandie, neurosurgeon

21. In a report dated 26 August 2015, Dr Gordon Dandie considered the plaintiff's claims of dizziness following the fall in the bathroom in 2014. He expressed the following opinion:

“I doubt Mr Manmi’s sensation of dis-equilibrium is coming from the neck but he would need dynamic x-rays to rule out instability being caused by a possible ligament injury when he had the fall. … The patient may have mal de debarquement syndrome."

22. Dr Dandie referred to the plaintiff's numerous investigations which had showed no problems with the plaintiff’s brain, intercranial vessels and cervical and lumbar spine. Some minor degenerative problems in the cervical spine were noted.

Reports of Dr R Bernan, neurologist

23. The plaintiff relied on two reports of Dr Roy Bernan, neurologist.

24. In his first report dated 26 November 2015, Dr Bernan set out the following history:

“In August 2014 he slipped in the bathroom hitting the back of his head and the left side of his neck on the rim of the bath tub, having been at the sink washing his face at the time. He does not believe he lost consciousness and he has full recall of the moment of impact and so it is unlikely that he did anything other than frighten himself. When he got up from the fall he said he had problems with balance and pain at the site of the trauma.”

25. Dr Bernan noted that the plaintiff had been diagnosed with muscular dystrophy which pre-existed the injury.

26. Dr Bernan referred to various reports and studies including the CT and MRI scans. Audiological testing found no abnormality and vestibular functions were normal. Dr Bernan expressed the following opinion: “My provisional diagnosis in his case would be that of a functional illness rather than anything more sinister.”

27. In a second report dated 7 January 2016, Dr Bernan noted that the plaintiff said that he had problems with his balance. Restrictions in neck movement were noted in all directions. Dr Bernan states in his report:

“There is a suggestion that he has a lower motor neuron deficit affecting the left upper limb but I am really at my wits end to know exactly where we are travelling and what is going on here. I seriously wondered about doing a muscle biopsy.”

Audiological and vestibular testing dated 29 February 2016

28. The plaintiff relied on a report of Ms Gradden, clinical audiologist, and Dr McDougall, neurologist. They concluded as follows: “Today's vestibular results are essentially within normal limits. These results do not explain the reported episodes of dizziness.”

Reports of Associate Professor M Welgampola

29. The plaintiff relied on a report of Associate Professor Welgampola dated 23 June 2016. The plaintiff gave a history of a sudden onset of disequilibrium after having had a fall. The doctor undertook a number of tests which were negative and the plaintiff’s audio vestibular tests were completely normal. Dr Welgampola referred the plaintiff to a neuro physiotherapist with expertise in balance.

30. The defendant relied on a later report of Dr Welgampola dated 1 November 2016 (Exhibit 1 page 26). The plaintiff had seen a vestibular physiotherapist. Dr Welgampola stated as follows:

“Shwan has objective evidence of a myopathy on nerve conduction studies and EMG. He does not have objective evidence of vestibular loss based on extensive and meticulous vestibular function testing. I think his limitations with mobilising do merit consideration for concessional housing and would certainly support his application. Based upon vestibular testing, clinical assessment, history and physical examination, there is no evidence of vestibular disorder."

Medicolegal report of Dr D O'Sullivan, neurologist

31. The plaintiff relied on a medicolegal report of Dr Dudley O'Sullivan, neurologist, dated 26 June 2017.

32. Dr O'Sullivan recorded the history of the accident as follows:

“As documented he had this fall on 10 August 2014 in the bathroom of his brother's house where he lives. He told me that he slipped on a mat and went backwards, hitting the edge of the bath tub. He landed on the back of his neck and the back of his head. There was no loss of consciousness. He was dazed and was in a state of shock and became very anxious and shaky. His neck was very painful. In fact he could hardly move the neck. In addition, he was aware almost immediately of what he describes as “dizziness”. It was not true vertigo. … Because of his neck pain he took Voltaren before going to bed. It transpires that he had been taking Voltaren and other non-steroidal anti-inflammatory drugs since 2007 to 2008 when he had a fall in a nightclub, injuring his neck and back. He was having physio as well for the neck and back injury.”

33. Dr O'Sullivan sets out in some detail the plaintiff’s medical examinations relating to his dizziness including with Dr Neil Griffith, neurologist, Dr Jonathan Ell, neurologist, Dr John McGuinness, ENT surgeon, Dr Andrew Duggins, neurologist, Professor Roy Bernan, neurologist and Associate Professor Welgampola, neurologist. It was noted that the audio diagnostic tests were normal as were the balance studies and they revealed no vestibular abnormality. A precise diagnosis could not be given. It was noted that the plaintiff had difficulty with his balance and his gait. Dr O'Sullivan reviewed the radiological evidence. Dr O'Sullivan expressed the following opinion:

“As far as his cervical spine is concerned, I can only conclude that he has sustained some soft tissue muscle and ligamentous injury to the cervical spine. There is no evidence to indicate that he suffered any cervical cord damage or any evidence to indicate radiculopathy. His MRI scan of the cervical spine and brachial plexus as documented were normal.

Concerning his dizziness I would have to conclude that he most likely has some dysfunction in the vestibular mechanisms despite the testing all being negative. I fully appreciate two experienced neurologists, namely Dr Jonathan Ell and Dr Miriam Welgampola indicate that he does not have any vestibular disorder. … There is no doubt that he is suffering from a disturbance regarding his balance as he described … I cannot go past the story that he gave me which would imply that this is where the abnormality lies despite the negative investigations. … Therefore with the superimposed injury that is following the fall of 10 August 2014 causing his recurrent dizzy episodes, I do not think that he is capable of returning to the workforce.”

34. Dr O'Sullivan did not think that the plaintiff needed past or future domestic assistance as he was living with his family and was able to cope with the help of his family. A guarded prognosis was given. Dr O'Sullivan added the following:

“There is no doubt that his autosomal recessive proximal myopathy will probably progress as is the nature of such illness and he will develop increasing muscular weakness secondary to the myopathy. As far as the prognosis of his dizzy episodes is concerned, I can only conclude that in view of the fact that it is now three years after the head injury that these will be persistent … There is no real medication that is suitable for this condition.”

Clinical notes

35. The plaintiff tendered extensive clinical notes from his three relevant general practitioners covering the period from 2007 to 2017.

36. Considerable weight was placed on these clinical notes by both parties, particularly the defendant. Some caution must be exercised in relying on what appears in general practitioner medical notes for the reasons given by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] which has been followed in numerous later appellate cases. The plaintiff's first language is not English, having been born in Iraq. This adds to the caution which must be exercised. However, the plaintiff appeared to have a good understanding of English in the course of his oral evidence.

35. The general practitioner notes also show that the plaintiff had extensive neck, back and leg problems prior to the date of the fall as well as his diagnosis of muscular myopathy.

36. The notes include the following relevant entries:

1. 1 September 2010 – Dr Werdi: “pain at the back of neck and L arm pain at both thigh at the back not getting better since the injury seen in pain clinic not helpful … Tender at the back of neck”;

2. 21 February 2011 – Dr Werdi: “lower back pain and neck pain chronic pain after a fall investigated nil significant finding”;

3. 28 February 2011 – Dr Werdi: “fall at club 07 still persistent type of lower back pain and neck pain investigated nil significant”;

4. 7 November 2011 – Dr Haddad: “Back pain”;

5. 5 March 2012 – Dr Haddad: “still has pain in the back”;

6. 5 April 2012 – Dr Haddad: “pain right side cannot move nor radiate right foot numbness lower leg … Back pain”;

7. 15 May 2012 – Dr Haddad: “back pain or referred pain with many physical activities with standing for about 15 minutes and with sitting or driving for about 20 minutes”;

8. 23 July 2012 – Dr Haddad: “Leg pain”;

9. There are references to back pain in consultations with Dr Haddad on 8 October 2012, 3 December 2012 and 14 February 2013;

10. 15 March 2013 – Dr Haddad: “cannot go out home pain uncontrollable back, neck, shoulders today gone out now cannot go out cannot go up stairs”;

11. 20 May 2013 – Dr Haddad: “shoulder girdle pain weakness”;

12. 11 August 2014 – Dr Haddad: “dizziness loseof [sic] balance few days and dizziness … Back pain … walking difficult”;

13. 19 August 2014 – Dr Jirjis: “dizzy feeling not getting better with stemetil”;

14. 26 August 2014 – Dr Haddad: “legs not lifting him … neck Pain ?dizziness”;

15. 1 September 2014 – Dr Jirjis: “discussed results of test, adviced [sic] low vit d, otherwise well still feeling dizzy, serc is not helping, adviced [sic] and ent for mri brain lower back pain and lom, feels weakness in the legs, post fall…previous history of lumbar disc prolapse”;

16. 16 September 2014 – Dr Jirjis: “discussed results of mri brain and lumbar spine, adviced [sic] nad still feels weakness and lack of power, adviced [sic] and referred to see neurologist”;

17. 2 December 2014 – Dr Jirjis: “still have problem with vertigo, no response from Dr Griffith … discussed results of test adviced [sic] all good”;

18. Other references to dizziness were in consultation notes on 9 December 2014, 23 December 2014 and 3 March 2015. There were later complaints of dizziness in 2015;

19. 13 April 2015: “…early August fell at home in the bathroom. neck pain and low back pain. seen by dr ell, griffiths for dizziness, also seen by prof gigennis. suffers from musculay [sic] dystrophy”;

20. The plaintiff then attended the Valley Plaza Medical Centre. There were complaints of dizziness to various general practitioners in late 2015. On 16 February 2016, Dr Sorani noted that the causes of the plaintiff's problem were still not diagnosed. Similar problems with dizziness and balance are referred to in consultation notes in 2016 and 2017. In a consultation with Dr Sorani on 17 January 2017 the following is noted: “ongoing pain and balance problem almost all reports from different specialists were noted the causes and diagnosed not confirmed that explained to patient wanted EPC ref to see a physiotherapist + repeat scripts”;

21. In a consultation on 14 March 2017 the plaintiff is recorded of complaining of ongoing back pain.

The Plaintiff's oral evidence

39. The plaintiff gave extensive oral evidence.

40. The plaintiff gave evidence that he was born in Iraq in March 1979 and was 39 years old at the date of the final hearing. He identified the defendant as his brother, Rang. The plaintiff said that he was educated in Iraq at university but did not complete his course in translation. It should be noted that the plaintiff's command of English in his oral evidence appeared to be reasonably good.

41. The plaintiff said that his whole family migrated to Australia in September 2004.

42. The plaintiff gave evidence that he commenced work as a security guard in Australia in around October 2005 and worked for several months in that position part-time. He said he stopped work due to pain in the lumbar region and has not been in employment since. He said he was not working at the time of the accident on 10 August 2014.

43. Prior to the accident in August 2014, the plaintiff stated that he had been injured in an accident in 2007 at the Marconi Club where he had slipped on a bottle and fallen down the stairs, hurting his neck and back. He said he had made a claim in relation to this matter which was settled.

44. The plaintiff gave evidence that his discomfort in his neck became worse after the 2007 accident: T9.45. He also said that he had been diagnosed with myopathy in late 2011: T10.1. He denied other medical symptoms including suffering any dizziness prior to the accident on 10 August 2014: T10.17.

45. It appears from the evidence that the plaintiff’s family were renting a townhouse before moving into a house purchased by his brother, the defendant, at Bonnyrigg Heights in Sydney. The plaintiff said that he moved into this house in May 2012 and paid a rent of $410 per month to his brother as well as contributing to outgoings: T10.30. The plaintiff said that the persons sharing the house were his older brother, his brother's wife and his mother. The defendant was a younger brother.

46. The plaintiff said that prior to the accident his problems with his neck and lower back and his myopathy prevented him doing some domestic tasks including some lifting. He said he was required to stop and rest and he had noticed some weakness: T10.41-.49. See also T75.36-.50; T92.46.

47. The plaintiff gave evidence that on 10 August 2014, the day of the accident, he went into the main bathroom at the house at about 7:30 to 8:30pm to go to the toilet. After going to the toilet he proceeded to walk to the basin in the bathroom to wash his hands. He said he placed a foot on a mat which was on the floor and the mat slipped under his foot, he fell backwards and hit his head and neck on the edge of the bath tub. He fell to the ground: T11.13.

48. The plaintiff stated that he believed he took the photograph in Exhibit A page 1 in 2017 and this was a photograph of the bathroom in which the accident occurred. He confirmed the accuracy of the labels on the photograph. The location of the mat in the photograph was, according to the plaintiff, almost exactly in the same location as the mat on which he slipped on the day in question: T12.30. He said the mat on which he slipped was red. The plaintiff gave evidence that the mat was no longer in his possession and when he asked his brother where it was in June or July 2017, he said that he had thrown it away: T13.4. The plaintiff said that he had not seen the mat prior to the accident and had not inspected it at any time: T13.10. This evidence was later changed in cross-examination in the light of Exhibit 2.

49. The video which was part of the evidence in Exhibit A was, according to the plaintiff, taken by him in May 2015. The plaintiff said in the evidence on the voir dire, which became part of the evidence in the proceedings, that the red mat in the video was the mat which he slipped on and the person whose feet were shown in the video were the plaintiff’s including the leather shoes which he was wearing which were the same as those worn by him on the day of the accident: T15.

50. The plaintiff said that on the day of the accident when he was walking towards the basin, he was proceeding at his normal speed prior to slipping: T24.8. The plaintiff confirmed that he had placed all of one of his feet on the mat before slipping: T25.10; T26.16. The plaintiff stated that after putting his foot on the mat that the mat slipped forward causing him to fall backwards: T26.17.

51. The plaintiff said that following the fall he immediately felt discomfort including that his neck was very painful on the left side. He said he also had a “sore head”: T26.28. The plaintiff stated that the discomfort which he felt in his neck following the slip was much worse than his pain in the neck prior to the fall and that was still the position at the time of giving evidence: T26.34-.40. The plaintiff said that the pain in the neck gave him restrictions around his home including in sitting and watching television: T26.44.

52. The plaintiff said that the problems with his neck had made tasks more difficult including preparing food, showering, washing clothes and shopping for groceries and that all movements had become more painful: T27.2. The plaintiff gave evidence that the other change following the accident was his dizziness. He said that he felt dizzy immediately after hitting his head and the dizziness has not gone away in the four years since the accident: T27.11. He said following the accident he was shaking, he got up slowly and he went to his room where he stayed on his bed.

53. The plaintiff said that he took pain killers and attended at his general practitioner, Dr Haddad, for treatment, the next day or the day after. The plaintiff also gave evidence in chief that his brother came to see him after the fall but he did not have a conversation with his brother: T27.35-.45. He denied in cross-examination that the brother asked him if he was “okay”.

54. The plaintiff said that he thereafter suffered from the dizziness frequently including many times during the day and night. He said he also suffered from dizziness if he turned over at night and during activities. He said if he had an episode of dizziness he would stand still, hold onto objects for a few seconds to a minute and he was assisted by holding on to a rolling cabin bag and a stick or umbrella: T28.1-.14.

55. The plaintiff gave evidence that the dizziness made tasks more difficult including preparing food, washing the dishes, showering, shaving and washing his face. He said he relied on a crutch while showering and shaving as the dizziness could come on without warning.

56. The plaintiff gave evidence that he moved out of the defendant's house in August 2017 into a public housing unit. He said that he had paid for a cleaner once or twice since moving in and had paid between $60 and $70 for two hours work: T28-29. He said he had not received any other assistance in relation to cleaning. The plaintiff said he had also paid for a handyman to assist him with various tasks on two occasions and paid the handyman between $100 and $120. He said he had not received any more assistance from a cleaner or handyman as he could not afford it: T30.1.

57. The plaintiff gave evidence that his dizziness affected all aspects of his life including his activities of daily living and his social life. He said he had taken Serc and Stemetil for the dizziness which had helped a little and that these had not been taken by him prior to the accident on 10 August 2014. For his neck, he said he was taking painkillers but he had been taking the painkillers for his neck prior to the accident on 10 August 2014: T30.32.

58. Other than his medication, the plaintiff said that he had seen a physiotherapist between July and September 2016 concerning his dizziness which had been helpful at the beginning and that if he had funds he would want to see a physiotherapist again: T31.11. He said he was on a waiting list for a hospital physiotherapist.

59. The plaintiff also said that if he had the funds he would retain a cleaner and a handyman to assist him in maintaining his house and keeping his backyard tidy. The plaintiff said he had his own backyard although he was living in a unit.

60. The plaintiff was subject to extensive cross-examination.

61. The plaintiff confirmed that as a child he was slower than other children in using his arms on the monkey bars as he was not as strong. He said he could undertake other sporting activities, including playing soccer and swimming, normally.

62. The plaintiff was asked numerous questions about his 2007 fall at the Marconi Club. He readily conceded that as a result of the fall he suffered severe pain and discomfort in his lower back, to the right side of his backside, to his neck which included restriction of neck movements, headaches, stiffness, loss of strength in his left arm and pain to his left hand (including in relation to the strength of gripping objects), pain to his left leg and difficulty with walking and standing for long periods of time. The plaintiff also agreed that after the fall in 2007 he had muscle weakness in his arms and legs and was diagnosed with myopathy in 2011. He agreed that he commenced District Court proceedings which were settled in 2010 with judgment in his favour for $150,000. Mr Manmi also agreed that some of his symptoms became worse after the settlement with increased muscle weakness: T37.42.

63. The plaintiff was then taken through a number of entries in the consultation notes of his general practitioners from 2010. He agreed that in 2010 he complained to his general practitioner, Dr Werdi, in relation to pain in the back, neck and legs. The plaintiff agreed that he had continuing pain and disability resulting from the 2007 fall, up to 2012. He also accepted that symptoms such as muscle weakness from which he suffered were unrelated to the Marconi fall and were as a consequence of the developing myopathy: T42.1-.7.

64. The plaintiff was then asked questions in relation to his living circumstances at the Bonnyrigg Heights home. Prior to that, he agreed that he lived with his family in rented accommodation in Fairfield Heights. He agreed that expenses of the family were shared equally in this period. He also agreed that in 2012 his brother Rang, the defendant, bought a house. While agreeing that he was not close to Rang and that he wanted to live by himself, the plaintiff confirmed that he moved into the house bought by his brother in 2012 but said that he wanted to move out. The plaintiff said that following the diagnosis of myopathy it was not easy for him to move out. He claimed that he offered to pay rent and asserted that he paid rent from the moment he moved in as well as sharing the bills of the house. He rejected the suggestion that he did not pay rent for staying at his brother's house: T44.12, .29. The plaintiff said that there was “a big…argument” with his brother as he refused to sign a Centrelink document saying that the plaintiff was paying rent to him. He agreed that while staying at the house he did not talk much with his brother, the defendant. In particular, he confirmed that he did not inform Rang in relation to his medical problems or that he had been granted a disability pension as he regarded these as private matters: T45.

65. The plaintiff was taken through documents in the defendant's tender bundle, Exhibit 1, in relation to consultations with Dr Haddad in 2012 concerning pain and weakness in his lower legs and referrals to specialists for examination. The plaintiff confirmed that the symptoms of his myopathy were becoming worse over time but only slowly. He said that they had not changed much since diagnosis in 2011. The plaintiff in general terms confirmed the history set out in the report of Dr Gotis-Graham dated 27 February 2013 (Exhibit 1 page 14) that he had suffered from spinal pain over five years, that he had pain in his neck and thoracic and lumbar spine regions, that he had noted progressive weakness in his hands and legs and that he had difficulty lifting a laptop computer and walking upstairs and down ramps: T48.

66. The plaintiff was then asked questions in relation to his fall in August 2014 in the bathroom. He confirmed his evidence in chief that he had slipped on the mat in the bathroom whilst walking from the toilet to the bathroom basin. He denied that he did not have a clear recollection as to how the fall occurred. The plaintiff was taken to the history set out in a number of medical reports including that of Dr Beran (Exhibit A page 26) which suggested that the plaintiff had slipped on the mat as he was washing his hands and his face and that, accordingly, he was at the sink when he fell. The plaintiff denied that he had told Dr Beran that and said he was not at the sink washing his hands and face when he slipped: T50.20 cf T49.36. He did however confirm that Dr Beran dictated his report whilst in his presence (Exhibit A page 29). The plaintiff was asked questions about the second paragraph in the report of Dr Beran dated 26 November 2015 where it is recorded that he was not involved in a court case and nothing would involve Dr Beran in a court case. It was then pointed out to the plaintiff that he had made the video which was part of Exhibit A in May 2015. The plaintiff said that he had not made a claim at that stage but was thinking and talking about making a claim depending on the progress of his condition. He confirmed that he did not tell Dr Beran that he was thinking of making a claim. The plaintiff said that he did not go to his solicitors Brydens in relation to a claim until September 2016: T51.49.

67. The plaintiff was taken to the history recorded in Dr Sutton's report dated 15 November 2017 where it is stated that having washed his hands he turned and slipped on a mat causing him to fall backwards and hit his neck and head on the bath. The plaintiff said this was incorrect and that he was going to the sink to wash his hands when he fell but had not reached the sink. The plaintiff expressly rejected the suggestion that what occurred was that he lost his balance due to the weakness in his legs and fell: T54.43. He said he had not fallen due to balance issues previously. However, the plaintiff confirmed that at this time he had a history of weakness in part of his legs, more in the left leg: T55.4-.19.

68. The plaintiff confirmed that after his fall his brother Rang saw him. He rejected the suggestion that Rang said to him “are you okay” and that he replied “I'm alright, I just fell over”: T55.27. The plaintiff said that his brother came to him after he had fallen and saw him but did not say anything to him. When it was suggested to the plaintiff that he did not tell the defendant that he had slipped on a mat, he agreed with this: T56.8. He said he was still shaking and was dizzy and in much pain when his brother saw him.

69. The plaintiff was taken to his evidence in chief where he stated that he had not seen the red mat before on which he allegedly slipped on 10 August 2014: T60.23. The plaintiff said that he recalled there being a brown mat in the bathroom used most of the time. He corrected his evidence in chief by saying that he was not intending to suggest that the red mat was used for the first time on the day of the accident. He said he had seen it used before but only for a period of about 10 days to two weeks prior to the accident: T60.33. The plaintiff said he was not sure of the period during which the red mat had been used prior to the accident but said it had been used only for a short time: T62.5. The plaintiff agreed that he must have used the bathroom a number of times whilst the red mat in question was on the floor: T62.14. See also T61.18 and T61.49-T62.38. The plaintiff described the red mat as the “new mat” in part of his evidence: T61.44.

70. It should be noted that the defendant tendered as Exhibit 2 in the proceedings correspondence between the solicitors for the parties concerning the red mat. In a letter dated 11 August 2017 from HWL Ebsworth solicitors to Brydens Lawyers the defendant’s solicitors asked the following question:

“17(a) Please specify how long the mat had been situated (i) in the bathroom; (ii) at the site of the incident.”

71. The response from the solicitors for the plaintiff in a letter dated 27 September 2017 was as follows:

“(a)   (i) One to two weeks.

       (ii) The plaintiff does not know.”

72. The plaintiff accepted that as at the day of the accident he had been using the main bathroom in the Bonnyrigg Heights house for more than two years and had walked on bath mats in that bathroom for the whole of the period. The plaintiff agreed that in the period between May 2012 and August 2014 there was a mat on the floor of the bathroom but it was usually a brown mat: T62.16-.45.

72. When asked to confirm that the fall occurred on 10 August 2014, the plaintiff said that it occurred on about that date. It was put to the plaintiff that he said that because he had seen the entry in Dr Haddad's consultation notes on 11 August 2014 referring to dizziness and a loss of balance for a “few days”. The plaintiff denied that and said that he had only seen Dr Haddad’s notes recently: T63.4. He gave evidence that he saw Dr Haddad on the first day that his surgery was open after the accident as he regarded the accident as being a big accident which had caused pain and dizziness to him: T63.17.

73. It was put to the plaintiff that at the consultation on 11 August 2014 he did not tell Dr Haddad that he had injured himself in a fall (see the notes at Exhibit A page 49). The plaintiff denied this and said that he did inform Dr Haddad of the fall. The plaintiff denied that all he told Dr Haddad was that he had had a loss of balance and had felt dizziness for a few days. The plaintiff said that he told Dr Haddad that he had fallen and that he was feeling dizzy. He said he specifically told Dr Haddad that the dizziness was due to the fall. It was put to the plaintiff that he had been experiencing dizziness and loss of balance before the fall which the plaintiff strongly denied. The plaintiff said that the dizziness only came after the fall and that he had given greater details to Dr Haddad in relation to what had happened at his next consultation. The plaintiff agreed that it was important information that he had had a fall and he confirmed that he had told Dr Haddad that and that the fall had resulted in a loss of balance and dizziness.

74. The plaintiff agreed that he had two more consultations with doctors in August 2014 being on 19 and 26 August 2014. It was put to the plaintiff that he did not inform Dr Jirjis on 19 August 2014 that the dizziness was due to a fall. The plaintiff agreed with that. He said he told Dr Jirjis that he was dizzy and said that he felt “still the same”. He said he did not tell Dr Jirjis in relation to the fall as he had told Dr Haddad. He found out later that Dr Jirjis did not know about the fall. The plaintiff denied that he did not tell Dr Haddad in greater detail in relation to the fall at the consultation on 26 August 2014. The plaintiff denied that the first mention of a fall was to Dr Jirjis on 1 September 2014 (Exhibit A page 50).

75. The plaintiff agreed that after August 2014 he saw a series of specialists in relation to his condition. He said his legs were very weak in the first few weeks after the fall. The plaintiff confirmed that he saw Dr Griffith, neurologist, in October 2014 and had given a history of the fall to him. He also agreed that he told Dr Griffith that he had difficulty negotiating stairs (Exhibit 1 page 19). The plaintiff denied that he had any balance problem before the accident but accepted that he had told Dr Gotis-Graham that he had difficulty walking upstairs in February 2013. He said he had not mentioned any difficulties with balance to Dr Gotis-Graham. Similarly, he had not mentioned any problems with dizziness.

76. The plaintiff agreed that he discussed Dr Griffith’s report with Dr Jirjis (Exhibit A page 50). He also agreed that Dr Griffith had advised that his sense of off-balance and dizziness was probably a combination of his muscle weakness making him unsteady and his background anxiety syndrome. The plaintiff agreed that he was unhappy with the advice from Dr Griffith as he knew what had happened to him. He said he wanted another referral which Dr Jirjis gave to him to see Dr Jonathan Ell. The plaintiff agreed that Dr Ell stated that there was no clear medical explanation for his dizziness and that he told Dr Ell that he did not agree with him. In his report dated 17 February 2015 Dr Ell stated:

“I cannot find any neurological or vestibular explanation for his problems with balance and I told him that it was my opinion that the major problem here was one of anxiety. He was unable to accept this view. I told him that if he wanted to take the matter further I would suggest he see a clinical psychologist or psychiatrist.”

78. The plaintiff confirmed that he went back to Dr Jirjis and told him that he was not happy with Dr Ell and thereafter saw a number of other neurologists seeking further specialists’ opinions. These included Drs Duggan, Dandie, Beran and Welgampola.

79. The plaintiff confirmed that the red bath mat on which he had slipped and which was shown in the video was used in the main bathroom in the period from August 2014 to at least May 2015 as it was shown in the video which the plaintiff said he took in May 2015: T70.24. The plaintiff said that the red mat was only used in the bathroom when other mats were being washed: T70.40.

80. The plaintiff confirmed that his brother Rang saw him on the night of the accident after he had fallen. The plaintiff confirmed that he did not tell Rang that he had slipped on the red mat. However, he claimed to have told Rang about the unsuitability of a mat used in the kitchen. The plaintiff confirmed that after the fall he believed the red mat was a slippery mat but gave no evidence that he had told anyone else in the house including the defendant that he had slipped on it. The plaintiff said that the red mat was only there when it was needed but that he had told the other members of the family about the slippery kitchen mat.

81. When asked by the court why the plaintiff had not told the defendant in relation to the alleged slippery nature of the red bath mat, the plaintiff said that it was only there occasionally when the brown mat was washed and the brown mat was used most of the time. However, the plaintiff confirmed that after August 2014 the red mat was still used in the bathroom from time to time and was still being used in May 2015: T72.12-.31.

82. The plaintiff asserted that he had told the defendant about the accident by May 2015. He denied that he did not tell his brother about the fall on the mat until shortly before litigation was commenced. However, he confirmed that he had approached the defendant about whether he had insurance in relation to the house.

83. The plaintiff confirmed that prior to 10 August 2014 he did not undertake household duties in the Bonnyrigg Heights house such as cleaning and mowing and installing items due to the injury which he had: T75.39. He said that his injuries prevented him from undertaking tasks which included heavy lifting: T76.3.

84. The plaintiff confirmed again that he had never suffered dizziness prior to the accident: T76.13.

85. In re-examination the plaintiff said that his abilities in relation to stairs were much worse after August 2014. That was because he had difficulties with his balance and felt like someone who was drunk: T77.1. He also confirmed that the brown mat which he had described in his evidence was on the floor in the main bathroom for most of the time prior to the accident: T77.9.

Evidence for the defendant

86. The defendant relied on a bundle of medical reports and investigations which became Exhibit 1 in the proceedings. The documents relied upon by the defendant showed medical certificates provided by the plaintiff's general practitioner, Dr Haddad, to Centrelink in relation to the plaintiff which included diagnoses of lower back pain on 15 May 2012 and arthritis following complaints of body aches and pains on 8 October 2012. The documents suggest that the plaintiff complained of pain and weakness in his lower legs in July 2012, back and leg complaints in December 2012, lower back pain and leg pain in February 2013, and myopathy with generalised muscular pain and weakness.

Oral evidence of the defendant

87. The defendant, Rang Manmi, gave oral evidence at the hearing. This evidence was given partly through an interpreter where necessary.

88. The defendant also gave evidence that he came with his family to Australia from Iraq in 2004.

89. Prior to moving to the Bonnyrigg Heights house, the defendant said that his family lived at a house in Fairfield. He said that this was a rental house and all of the members of the family shared the rent and bills. The defendant said that he bought the Bonnyrigg Heights house in 2012 and he, his mother and his two brothers and a sister-in-law moved into the house where he still lives.

90. The defendant said that he did not have a strong relationship with the plaintiff at either the Fairfield house or the Bonnyrigg Heights house and they did not get along. He said he invited the defendant to move into the Bonnyrigg Heights house as he had nowhere else to go and he wanted to help him. The defendant said that the plaintiff told him that he would come for a couple of months and then move and he agreed to that. Thereafter, he said he had numerous discussions with the plaintiff asking him when he would move out as he needed the extra room. The defendant claimed that the plaintiff said on a number of occasions that he was not yet ready to move out.

91. The defendant asserted that the plaintiff offered to pay rent but he told him that he did not want it; he just wanted him to move out of the house. Contrary to the plaintiff's evidence, the defendant said that the plaintiff did not pay any rent to him: T84.41. The defendant agreed, however, that the plaintiff together with everyone else in the house contributed to the cost of bills which were equally divided by the five members in the house.

92. The defendant gave evidence that there were two bathrooms in the house being the main bathroom and an ensuite bathroom. He said he understood that the plaintiff's case was that he fell in the main bathroom. The defendant confirmed that from the time the family moved into the house in 2012 that bath mats were used around the toilet and under the wash basin. He said that his mother bought the bathroom mat sets: T86.3. The defendant said that the same mats were not used all the time and that there were two or three different ones which were changed when the mats were washed and dried. He also said that when the mats were worn he would inform his mother to throw them away and buy new ones: T96.38-.50. There was no evidence the defendant told his mother to buy a particular type of mat.

93. The defendant gave evidence in relation to his recollections of the occasion when the plaintiff fell. The defendant said that the event occurred at night time after 7pm. He said he was in his room and heard a loud noise. He said he ran from his room to the bathroom and saw the plaintiff trying to stand up from the floor. He said that he asked the plaintiff whether he was okay and he replied that he was okay and the defendant said he returned to his room: T87.5-.32.

94. The defendant said that the plaintiff did not inform him when he arrived at the bathroom that he had slipped on a mat: T87.32. He said he did not recall the mat being used in the bathroom at the time: T87.36. Having seen the video tendered by the plaintiff which became part of Exhibit A, the defendant said that he saw the red mat in the video and recalled that that red mat had been used in the main bathroom: T87.46. He could not recall how often the red mat was used but said that it was not used in the house today as his mother had thrown it away: T88.16. He could not recall when that had occurred.

95. The defendant said he was not aware prior to the incident of there being any problems with people slipping on bathmats in the main bathroom or any concerns being expressed about the slipperiness of the red mat. He also said that he did not have any concerns in relation to the mat, including that it was slippery: T88.24-.43. The defendant said that between 2012 and 2014 the main bathroom was used by himself, his mother, the plaintiff and his brother.

96. The defendant gave evidence that floor mats were used in other rooms in the house but these were bigger mats which were brought out in winter. These were used in the hallway and in some of the other rooms. In the kitchen, the defendant said there was a small carpet not a mat. The defendant denied that prior to the accident the plaintiff had complained about the kitchen carpet being slippery: T90.20. Similarly he said that no other person had made any complaint about the kitchen carpet being slippery at any other time: T90.24. The defendant confirmed that prior to the accident he was not aware of anyone slipping on any mats or carpets in the house: T90.28. He also said that after the accident he and the plaintiff did not speak in relation to what had occurred in the bathroom on the night of the accident. However, the defendant did confirm that the plaintiff asked him about his insurance with reference to the fall in the bathroom. He said that he wished to make a claim and the defendant confirmed having home insurance. The defendant said he could not recall when this discussion occurred but it was a long time after the fall and was the first time that the plaintiff had raised the topic: T91.3-.11.

97. The defendant said he had no idea what had caused the plaintiff to fall in the bathroom (T91.17) and was not aware that the plaintiff was receiving the disability pension at the time (T91.23).

98. In cross-examination the defendant confirmed that while he was not aware that the plaintiff was on a disability pension he was aware that he was receiving Centrelink benefits but did not know what they were called. The defendant confirmed that his relationship with the plaintiff was strained prior to the fall and that they did not get on. However, he rejected the suggestion that this was because the plaintiff did not work. He said he did not mind that the plaintiff was not working as it was his life.

99. The defendant confirmed that the plaintiff did not help around the house (T92.45), that they did not speak regularly and that they did not discuss matters relating to day to day issues or relationships. He agreed that if something happened between them they would not seek out the other to tell them of it.

100. In cross-examination the defendant confirmed that on the night in question he heard a loud bang, was worried, ran to the bathroom and saw the plaintiff getting up from the floor. He said he did not recall anything else in relation to what he saw on arriving at the bathroom: T93.45-94.28.

101. Although the defendant said he was the owner of the house, the furniture in the house had been bought by all the inhabitants. He confirmed that his mother did not work and received Centrelink benefits and helped pay the bills in relation to the house and look after the house. He also confirmed that his mother did small shopping for the purposes of the house including purchasing mats which he regarded as part of her household duties: T96. There was no evidence the defendant directed the purchase of a particular type of bathroom mat to his mother.

102. The defendant confirmed that he used the bathroom in question and that the mats were changed when they became old. He also agreed that he would ask his mother when to buy new mats and that there were two to three mats which were rotated as they were washed. The defendant said he recalled between two to three mats being used in the two year period prior to the accident. The defendant said he could not recall the age of the red mat at the time of the accident. The defendant also confirmed that he did not recall the mat that was being used in the bathroom at the time of the accident: T97.29.

103. In relation to the kitchen, the defendant said that the kitchen floor was tiled and that there was a carpet under the sink. He denied that the kitchen mat would shift somewhat underfoot when someone walked on it. In relation to the bathroom mats, the defendant confirmed that he walked on them regularly as he used the bathroom every day. This included in the period 2012 to the time of the accident. When it was put to the defendant that if the mat shifted underfoot in the bathroom that that might cause a person to fall the defendant denied that: T99.24.

104. In relation to the video, the defendant confirmed seeing the red mat in the video but did not recall the mat being used in the bathroom at the time of the accident. However, the defendant said that the red mat was used from time to time in the house and could have been in the bathroom. The defendant said he recalled using the red mat himself but could not recall when: T100.5-.9.

105. The defendant said that the plaintiff moved out from the Bonnyrigg Heights house in August 2017 to his own residence and that he had had nothing to do with him since. He could not recall the plaintiff complaining that he was suffering from dizziness: T100.47.

Report of Dr I Gotis-Graham, rheumatologist and consultant physician

106. Dr Gotis-Graham in a report dated 27 February 2013 assessed the plaintiff for what he described as “spinal pain and weakness”. Dr Gotis-Graham referred to the plaintiff complaining of spinal pain over the last five years beginning after the plaintiff fell down some stairs (no doubt in the 2007 accident). The plaintiff complained of pain in his neck and thoracic and lumbar spine regions and noted progressive weakness in his hands and legs over the preceding year leading to difficulties in lifting up his laptop computer and in walking upstairs and down ramps requiring him to hold onto the rails.

107. Dr Gotis-Graham noted significant wasting of the plaintiff's shoulder girdle muscles and significant muscle weakness as a result of the plaintiff’s likely inherited or familial myopathy. Dr Gotis-Graham expressed the opinion that the plaintiff’s spinal pain was due to his degenerative disc disease with poor muscular support of the spine.

Reports of Dr N Griffith, neurologist

108. The defendant relied on a report of Dr Neil Griffith, neurologist, dated 10 October 2014. The history provided was as follows:

“I understand two months ago Shwan slipped on a mat and fell backwards hitting his head and neck and his thighs were shaking. He lay there for one or two minutes. The anterior aspects of his thighs were painful. Since then he reports his thighs have been weak with difficulties stepping over a 10cm step although he felt there was some improvement in the last fortnight. He reports in last 2 months he has had constant dizziness if he moves. He now uses a walking stick to balance feeling unsteady and has difficulty negotiating stairs … EMG and nerve conduction studies revealing a myopathic pattern of abnormality.”

109. Dr Griffith diagnosed a genetic myopathic disorder and organised vestibular tests in the light of the plaintiff’s dizziness.

110. In a second report dated 11 November 2014, Dr Griffith noted that the plaintiff’s vestibular investigations were normal. He stated the following opinion: “His sense of off-balance and dizziness I feel is probably a combination of his muscle weakness making him unsteady and his background anxiety symptoms”: Exhibit 1 page 21.

Reports of Dr J Ell, neurologist

111. The defendant relied on a report of Dr Jonathan Ell, neurologist, dated 16 December 2014. Dr Ell stated the following opinion:

“There is no convincing evidence of a vestibular or cerebellar component here and I have explained this to him. Anxiety seems to be a major element operating at present. I told him it was very important for him to proceed with genetic analysis concerning his muscle disorder. He said he wanted to have vestibular tests carried out”: Exhibit 1 page 23.

112. In a second report dated 17 February 2015, Dr Ell said the reports conducted were normal. He stated that he could not find any neurological or vestibular explanation for the plaintiff’s problems and said the major problem was one of anxiety.

Radiological Evidence

113. The defendant relied on a number of radiological studies and reports. A CT angiogram of the brain dated 21 April 2015 noted no evidence of an aneurysm or significant stenosis in the major arteries of the brain. A CT of the plaintiff’s temporal bones was within normal limits and nothing was present accounting for the plaintiff's symptoms of dizziness: Exhibit 1 page 29. An MRI of the cervical spine dated 5 May 2015 denoted no disc protrusion or evidence of neural impingement. An MRI of the brain dated 22 December 2015 revealed no significant abnormalities: Exhibit 1 page 32.

[162] As has been remarked in various cases in this court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person’s own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)–(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable “by such percentage as the court thinks just and equitable in the circumstances of the case”.

[562]  The decision of the Court of Appeal in Grills was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]–[29].

[563] Following these principles, in applying s 5R of the CLA, a court considering contributory negligence is required in determining whether a person has been contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have set out above.”

180. I have set out ss 5B and 5C of the CLA above.

181. In my view, there was no contributory negligence shown by the plaintiff in the present case applying these principles:

1. In my view, the risk was not foreseeable in the sense it was a risk of which the plaintiff knew or ought to have known;

2. The risk of slipping on the mat was insignificant in all the circumstances;

3. In my view, a reasonable person in the position of the plaintiff exercising due care for his own safety would not have conducted himself in any different way;

4. There was no suggestion that the plaintiff or the defendant had formed the view that the mat in question was slippery previously. In my view, there is no evidence that the plaintiff failed to take reasonable care for his own safety.

182. I am entitled in considering the allegation of contributory negligence to have regard to the plaintiff’s age and physical infirmities at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. The plaintiff had problems with his back and neck at the time and also had weakness in his legs due to his myopathy. Having regard to these matters, in my opinion there was no evidence of contributory negligence in the present case.

183. If an appellate court finds that I am in error on the breach issue, then in my view there is some force in the defendant’s written submissions on contributory negligence. This is particularly the case if it is found that a reasonable person should have been aware that the mat posed an unacceptable risk. Taking account all the evidence, the plaintiff was in at least as good a position as the defendant to assess the characteristics of the mat. He did not work and was home more often. He thus was very likely to have used the bathroom more often. He could readily have removed the mat or avoided walking on it. The plaintiff submits that if I find that the plaintiff must have walked on the mat prior to the accident (which I do) and he had the same opportunity to inspect the mat as the defendant, then it is open to me to reduce the plaintiff’s damages by 15%. I would reduce any damages awarded by 30% for contributory negligence if a breach is found. The plaintiff could have examined the mat and moved it aside. He must have used the bathroom with the red mat more often than the defendant. As he did not own the house or have any control over the bathroom, I would reject the defendant’s suggested reduction of 50%.

Damages

General

184. The plaintiff's claim was made under the CLA. The plaintiff claimed general damages under s 16 of the CLA, amounts for past and future out-of-pocket expenses and a buffer for future commercial care. No claim was made for past domestic assistance or economic loss in the past or in the future.

Non-Economic loss - General Damages

185. Section 16(1) of the CLA provides as follows:

“16   Determination of damages for non-economic loss

(1)  No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.”

186. The relevant maximum amount that may be awarded for non-economic loss in a most extreme case is currently $635,000 for 100% of the most extreme case. Applying s 16(3) and (4) of the CLA:

1. The plaintiff claims 15-18% as a proportion of a most extreme case for the aggravation of the neck injury and 30% ($146,500) of a proportion of a most extreme case if the neck injury and dizziness are taken into account. As the defendant submits, the correct amount appears to be $146,000 (written submissions paragraph 87 and CLA s 16(4));

2. In accordance with the medical findings which I have made above, in my view only the neck injury was caused by the accident. In relation to the percentage of 15-18% as a proportion of a most extreme case, this is the plaintiff’s submission. The defendant submits that it should be 2% percent. I accept the plaintiff’s evidence that the injury resulted in a serious aggravation of his neck injury which has caused significant additional pain. In my view, contrary to the defendant’s submissions, the report of Dr O’Sullivan supports this. The evidence of how the injury occurred is also relevant. Taking the plaintiff's evidence into account and accepting that the neck injury is an aggravation of a pre-existing soft tissue injury of the cervical spine not shown in radiological evidence, I think the figure of 15% is appropriate. The higher percentage does not properly take into account that the injury was only an aggravation of an existing soft tissue injury which was still causing the plaintiff problems at the time of the accident. This equates to 1% of $635,000 equalling $6,350. Under s 16(4) of the CLA, this is to be rounded up to $6,500;

3. In relation to the claim of 30% if the dizziness/loss of balance is included, the defendant submits that the amount of 15-17% percent only should be awarded depending on the findings as to the alleged neck injury. I have found above that the loss of balance/dizziness is not caused by the accident. If I am wrong on that issue, then clearly the dizziness and loss of balance issues have caused significant and ongoing problems for the plaintiff. However, he is able to get around with the use of an umbrella and a cabin baggage bag in the other hand. He is able to live alone and generally look after himself. Although in my opinion the balance/dizziness is severe, taking into account all the evidence I would only allow 27% of a most extreme case which amounts to $63,500 or 10% of $635,000.

187. For all of these reasons I would have allowed the amount of $6,500 under s 16 of the CLA.

Past out-of-pocket expenses

188. Past out-of-pocket expenses were agreed numerically by the parties at $11,315.85.

189. In my view, it was reasonable for the plaintiff following suffering the balance and dizziness issues after the accident to have them fully and properly investigated. Contrary to the defendant’s submissions, that extended to seeking further medical opinions to see if the problem could be objectively identified.

190. There were differing submissions in relation to the appropriate out-of-pocket expenses which were claimable. It is unnecessary to determine those issues in this judgment. However, I accept the defendant’s submission that no allowance should be made for analgesia as the plaintiff was taking painkillers before the accident for his neck condition: written submissions paragraph 90.

Future out-of-pocket expenses

191. The plaintiff claims that the amount of $10,000 as a buffer should be allowed for future out-of-pocket expenses for visits to the general practitioner, medication and physiotherapy. The defendant submits that nothing should be allowed.

192. In my view, if, as I have found, the plaintiff’s only injuries from the accident were an aggravation of a previous neck injury, then the plaintiff would only require non-prescription analgesia and occasional review by a general practitioner. Having regard to the plaintiff’s extensive prior injuries and his myopathy condition, and the plaintiff’s consumption of painkillers already for his existing injuries, in my view only a modest further allowance should be made for non-prescription analgesia and occasional review by his general practitioner. In other words, painkillers and medical review would often be required in any case. I allow only $800 under this head.

Economic loss

193. The plaintiff was not working at the time of the accident and has not worked since. There is no claim for any past or future economic loss.

Past domestic assistance

194. There is no claim for past or future domestic assistance.

Future commercial assistance

195. The plaintiff claims the amount of $42,393.75 (1.5 hours x $35 x 950 x 85%), alternatively $40,000) as a buffer, for future commercial assistance on the basis of 1.5 hours per week. The plaintiff relies on his evidence in relation to his difficulties with cleaning and home maintenance tasks. It is submitted that the further injuries have increased his need for assistance.

196. Dr Sutton expresses the view that the plaintiff does not need any domestic assistance in the future. He also notes that the plaintiff’s myopathy could potentially impact on his ability to perform domestic activities and that self-care activity should not be impacted at present: Exhibit 1 page 7. The defendant’s medico-legal expert, Dr O'Sullivan, expresses in his opinion in his report that the plaintiff did not need any past or future domestic assistance as he was living with his family and was able to cope with the help of his family: Exhibit A page 19.

197. The evidence establishes that the plaintiff moved out from his family home in 2017 and lives by himself. He gave evidence that he undertook domestic activities himself now but was limited in undertaking cleaning and maintenance duties. He referred to the fact that he had paid a cleaner once or twice and a maintenance man twice but could not afford to keep paying them.

198. It is clear that in order for a person to claim an award, whether by way of buffer or not, for future paid commercial assistance, a need for that assistance arising from a breach of duty of care must be established: Smith v Alone [2017] NSWCA 287 at [73]-[77].

199. I accept that the plaintiff's family is no longer providing him the domestic assistance which they had previously provided to the plaintiff.

200. A minimum number of hours need not be established for the purpose of establishing the need for future commercial assistance.

201. The plaintiff and defendant gave evidence that the plaintiff did not undertake domestic duties when he lived in the house at Bonnyrigg Heights due to his prior injuries and restrictions.

202. This was the case both before and after the accident.

203. Although I accept that the plaintiff suffered an aggravation of his injury to his neck in the accident, I am not satisfied on the balance of probabilities that this caused any need for future commercial assistance which did not already exist. The plaintiff did not undertake any domestic activities prior to the fall due to his pre-existing injuries to his back and neck.

204. In relation to the issue of dizziness, in my view the need for future commercial assistance would exist anyway because of the plaintiff’s prior injuries and his myopathy.

205. In summary, in my view the plaintiff has not established any increased need for future commercial assistance arising from either the aggravation to the neck injury or through balance/dizziness issues. The need for domestic assistance existed in any case due to the plaintiff’s other conditions which he had prior to the accident. This claim is accordingly rejected.

Summary

206. I thank counsel for the parties for their submissions which were to a high standard.

207. Accordingly, if I had found a breach of duty of care I would have allowed the following amounts for the heads of damage claimed prior to a reduction for contributory negligence of 30%:

General damages	$6,500
Past out-of-pocket expenses	To be determined if required
Future out-of-pocket expenses	$800
Future commercial care	nil
Total	Currently $7,300

Determination

208. For the above reasons, I make the following orders:

1. Verdict and judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

3. The parties have liberty to apply within 14 days for a different costs order to that set out in (2) above.

4. Exhibits to be returned in 28 days.

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Decision last updated: 03 April 2019