Marie Kuban v Hunter Valley Gardens Pty Ltd t/as Harrigan's Irish Pub and Accommodation

[2015] NSWDC 245

District Court

New South Wales

Medium Neutral Citation:	Marie Kuban v Hunter Valley Gardens Pty Ltd t/as Harrigan’s Irish Pub and Accommodation [2015] NSWDC 245
Hearing dates:	11, 12 March 2015
Date of orders:	08 April 2015
Decision date:	08 April 2015
Jurisdiction:	Civil
Before:	Judge AC Scotting
Decision:	See paragraph [143]
Catchwords:	CIVIL – judgment – personal injury – plaintiff – slip and fall – injury to buttock – damages – admission as to liability – recognition of duty of care – assessment of damages
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Hall v State of New South Wales [2014] NSWCA 154 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Strike v Fiji Resorts Ltd [2012] NSWSC 1271 Carroll v Thompson [2014] NSWDC 96; Hall v State of New South Wales [2014] NSWCA 154 Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264.
Category:	Principal judgment
Parties:	Marie Kuban (Plaintiff) Hunter Valley Gardens Pty Ltd t/as Harrigan’s Irish Pub and Accomodation (Defendant)
Representation:	Counsel: Mr A Lidden SC with Ms E Welsh (Plaintiff) Mr D Lloyd (Defendant)     Solicitors: Brydens Compensation Lawyers (Plaintiff) Collins Biggers & Paisley (Defendant)
File Number(s):	2013/378647

Judgment

Introduction

1. The plaintiff sues the defendant for damages for personal injury sustained on 27 March 2011, when the plaintiff slipped on some stairs at the entrance to the defendant’s premises, a licensed hotel at Pokolbin in the Hunter Valley (the premises).

2. The defendant admitted that it owed the plaintiff a duty of care and that it had breached that duty of care. The matter proceeded as an assessment of damages only, in which there was no allegation of contributory negligence.

3. Mr Lidden SC and Ms Welsh appeared for the plaintiff. Mr Lloyd appeared for the defendant.

Circumstances of the accident

4. On Sunday 27 March 2011 the plaintiff attended the defendant’s premises with her partner, Iosefa Faalogo to have dinner, watch the football and play some games of pool. It was raining on the night and the tiled pathway and stairs at the front of the premises had become wet and slippery.

5. At about 11.00pm the plaintiff and her partner decided to leave. They walked out of the premises and proceeded along the tiled pathway towards the car park. Mr Faalogo walked slightly ahead of the plaintiff.

6. Upon reaching the 3-4 stairs in front of the entrance, the plaintiff slipped and fell. The plaintiff’s buttocks and lower back hit the tiled surface of the stairs. In addition, she extended her right arm in an effort to break her fall and her right hand also came in contact with the stairs.

7. The plaintiff’s partner came to her assistance. As he tried to help her up, she fell onto the stairs again. Her buttocks, lower back and right hand came into contact with the stairs, in the same manner.

8. The plaintiff felt immediate pain in her buttocks, lower back and right arm. The pain was significant and caused her distress. The plaintiff’s partner helped her to the car and they returned to the accommodation where they were staying nearby.

The plaintiff’s claim

9. At the hearing the plaintiff alleged that as a result of the fall she suffered from:

1. an aggravation of pre-existing, but previously asymptomatic, degenerative disease in her lumbar spine causing pain in her lower back that radiated down the length of her left leg;

2. an injury to her right shoulder consisting of supraspinatus tendinitis with subacromial and subdeltoid bursitis with evidence of right shoulder impingement, causing pain and restriction of movement in her right shoulder and right arm;

3. a deformity of her left buttock that requires surgical revision; and

4. Persistent Depressive Disorder.

10. At the commencement of the hearing, the plaintiff sought damages for non-economic loss, past and future out-of-pocket expenses, future economic loss, gratuitous attendant care services (or alternatively the cost of commercial services required by her) and for the loss of her capacity to provide domestic services pursuant to section 15B Civil Liability Act 2002.

11. During the course of the hearing, the section 15B claim was withdrawn.

Background

12. The plaintiff was born on 19 October 1959 and was 55 years of age at the date of hearing.

13. She completed the Higher School Certificate in 1977 and then was employed for 2 years in a pharmacy as a sales assistant.

14. In about 1979 she was employed by the Department of Health as an administrator. She continued in that employment until 1997 during which time she was promoted to Team Leader.

15. The plaintiff was married in 1983. On 10 December 1985 the plaintiff’s son Nathan was born. On 28 September 1990 the plaintiff’s son Michael was born. In 1997 the plaintiff was divorced.

16. In 1997 the plaintiff was employed by the Department of Juvenile Justice as a Youth Worker at the Cobham Detention Centre. At about that time the plaintiff commenced a Certificate III in Youth Work. Eventually the plaintiff was promoted to Unit Coordinator at the Cobham Detention Centre. As a Unit Coordinator the plaintiff was responsible for supervision of 3 staff per shift who would look after the 15 detainees in the unit.

17. In 2004 the plaintiff commenced a de facto relationship with Mr Faalogo. In November 2004 the plaintiff was injured at work when she was hit in the mouth by a detainee causing her to lose some teeth. There was no evidence that the 2004 work injury had any lasting effects on the her.

18. In 2007 the plaintiff completed a Certificate IV in Training and Assessment at the Benchmark College in Penrith.

19. In 2007 the plaintiff was employed by an entity known as Sovereign Training. Sovereign Training provided contract trainers to Sterling College, an education provider that offered, inter alia, a Diploma of Community Services Work course to students. In that role the plaintiff worked as a Field Placement Officer and Trainer. That work involved training students who were enrolled in the Diploma of Community Services Work course and particularly included finding work experience placements for the students and visiting them at those placements to undertake assessments of their progress.

20. In 2008 Sterling College closed and the plaintiff took up similar work with Lamart College at about that time.

21. In April 2009 the plaintiff completed a Certificate IV in Community Services at Narimba/Booth College.

22. Later in 2009 the plaintiff was employed by Anglicare as a Youth Support Officer at its out of home care facility for young persons under the care of the Minister, known as St Saviours at Kings Langley. The plaintiff was employed full-time at St Saviours until 2010. Thereafter she continued to be employed at St Saviours on a part-time basis.

23. The St Saviours facility was a two storey five-bedroom house. The young persons at St Saviours were dependent on the staff because of their ages (some were as young as 9) and some of them had behavioural and mental health issues. At St Saviours all of the cooking and the household cleaning was performed by the staff, including the plaintiff. The work to be done included, mopping, sweeping, vacuuming, cleaning the bathrooms, cooking, washing up and doing the laundry. That household work was done by the plaintiff on every shift when she was working, according to the state of the house. The shifts at St Saviours were from 3.00pm until 10.00am the next day and required the plaintiff to sleep over at the house. On a couple of occasions the plaintiff had been required to restrain one of the residents at St Saviours and on other occasions the police were called to assist her in controlling the behaviour of the residents.

24. In 2010 the plaintiff applied for and obtained employment as a Youth Worker with Marist Youth Care Ltd (MYC). MYC operated an out of home care facility for young persons under the care of the Minister, between the age of 16 and 18 years. The facility was a four-bedroom house where the residents lived with the assistance of MYC staff. The residents were involved in a semi-independent living program where the object was to teach them life skills including cooking, cleaning and budgeting, so that when they reached 18 years of age they would be able to live independently.

25. A typical shift commenced at 3.00pm and ceased at 10.00am the following day. The plaintiff would be the only staff member at the house on that shift. Upon arrival, the plaintiff was required to ensure that house was clean and tidy. Shortly after 3.00pm, the residents would begin to arrive home from school or work. The plaintiff then organised and assisted with the preparation of dinner for the residents. After dinner was finished, the kitchen and dining room were cleaned, which included the mopping of the floors each night. The plaintiff would then socialise with the young people in the main part of the house. In addition there were certain duties that were scheduled to be completed each day, including things like putting out the garbage bins, doing the vacuuming and cleaning up the yard. The residents would then go to bed at about 10.00pm and the plaintiff would go off duty at about 11.00pm, usually after completing any necessary clerical work. The plaintiff would sleep over at the house. In the morning the plaintiff was required to be on duty by 7.00am to assist and supervise young people to have breakfast, clean up after breakfast and to get ready for school or work. The plaintiff would cease duties at 10.00am and go home.

26. Whilst it was intended that the residents attend to the cleaning tasks, they could not be forced to do the work and it often fell to the plaintiff to do the work required. That work could include vacuuming, mopping, cleaning the bathrooms, cleaning the windows and doing the laundry, depending on what needed to be done.

27. From 2010 the plaintiff worked full-time for MYC, consisting of 7 overnight shifts per fortnight and part-time for Anglicare consisting of 3 overnight shifts per fortnight; being a total of 10 overnight shifts per fortnight.

28. In the period prior to her fall the plaintiff was living with her partner, her mother and one of her sons at 14 Tornado Crescent, Cranebrook. That property was a four-bedroom house, which had two bathrooms, a kitchen, a family room, a formal lounge room and a dining room. At that time the interior housework was done by the plaintiff with the assistance of her mother. The interior housework included mopping, vacuuming, cleaning the kitchen, cleaning the bathrooms, doing the laundry, making the beds and changing the bed linen.

29. The plaintiff also employed a cleaner before the fall for 3 or 4 hours per fortnight. The plaintiff’s evidence was that the cleaner would do the “difficult jobs”, including cleaning the windows, cleaning the bathrooms, mopping and vacuuming the floors, if required. The cleaner would do as much of that type of work as she could complete in a 4 hour period. Prior to the fall the plaintiff employed the cleaner for convenience and to reduce the burden on herself and her partner as they both worked full-time and that work was predominantly night shift work.

30. The plaintiff often worked back-to-back shifts, which involved arriving home at about 11.00am from an overnight shift, before commencing another overnight shift at 3.00pm on the same day. The plaintiff gave evidence that before the fall when she returned home between these back-to-back shifts that she would attend to housework, do the laundry and cook for the family.

The extent of the plaintiff’s injury sustained in the fall

The plaintiff’s evidence and the evidence of the plaintiff’s treating medical practitioners

31. The plaintiff gave evidence that on the day after the fall, which was a Monday, she continued to be in a lot of pain. She described the journey home, to one of the medico-legal doctors qualified by the defendant, as “excruciating”. The plaintiff could not recall whether or not she had time off work immediately following the fall.

32. The plaintiff attended her general practitioner, Dr Hillman for the first time on Thursday, 31 March 2011. On that occasion she gave a history of the fall and reported landing on her “left buttock and tailbone”. She reported difficulty walking, pain on getting in and out of the car and that she had “shooting pains” in her spine. On examination, Dr Hillman noted a large bruise on the left buttock, pain and tenderness in the lower lumbar spine, limited flexion and extension and pain radiating down the back of the left leg. Dr Hillman referred the plaintiff for x-rays and prescribed pain medication.

33. In her evidence, the plaintiff described the low back pain at this time as being present on the left side of the lower back and travelling down the back of her whole left leg to her foot.

34. On Sunday, 10 April 2011 the plaintiff was reviewed by Dr Hillman. She continued to suffer pain in her left buttock and pain from her lower back radiating down the back of her left leg. She reported not being able to sit for more than 10 minutes or stand for more than 5 minutes as a result of her back pain, which was still radiating down her left leg. The x-rays of her lumbar spine demonstrated mild degenerative disc disease at a number of levels and possibly a fracture of the fifth sacral segment and a CT scan was recommended. On examination, Dr Hillman noted the haematoma on her left buttock was hardening and was quite tender to touch.

35. In her evidence, the plaintiff described the pain in her left buttock involving tenderness, soreness and an altered sensation in the affected area.

36. On Tuesday, 19 April 2011 the plaintiff was reviewed by Dr Hillman with the results of the CT scan of her sacrum. The plaintiff complained of pain and tenderness in her lumbar spine. On examination Dr Hillman noted that she was in pain and tender over her lumbar spine and sacrum and that the haematoma on her left buttock was still present. The CT scan results reported “marked osteoarthritis” at the L4/5 facet joints bilaterally.

37. On Wednesday, 15 June 2011 the plaintiff again saw Dr Hillman. On this occasion she complained of severe pain in her right shoulder. On examination Dr Hillman noted the plaintiff was very tender over her right shoulder, demonstrated pain and stiffness and inability to abduct the right shoulder. He also noted that the plaintiff had a “terrible indentation” in the left buttock where the haematoma was and that it was “very noticeable”. Dr Hillman recorded the opinion in his notes that the fatty tissue in her left buttock had been damaged and formed scar tissue. Dr Hillman ordered an ultrasound of her right shoulder to determine if the plaintiff had suffered a rotator cuff injury.

38. On Monday, 20 June 2011 the plaintiff was reviewed by Dr Hillman with the reports of the ultrasound on her right shoulder. The ultrasound showed supraspinatus tendinitis with subacromial and sub deltoid bursitis with evidence of right shoulder impingement. On examination Dr Hillman thought that the movement in her right shoulder was “very limited”. Dr Hillman gave the plaintiff a cortisone injection and prescribed Celebrex, an anti-inflammatory medication.

39. In or about early July 2011 the plaintiff consulted Dr Fernando of the Mount Druitt Medical Centre following an episode of severe right shoulder pain, when Dr Hillman was away. Dr Fernando gave her a cortisone injection in her right shoulder, which did not assist her. Dr Fernando then referred the plaintiff to Dr Boundy, a specialist in sports medicine.

40. Dr Boundy saw the plaintiff on 12 July 2011. He noted that the pain in her right shoulder was not allowing her to sleep at night. On examination he noted that the plaintiff could not place her hand behind back or raise her arm above her head without intractable pain. Dr Boundy prescribed her a drug called Lyrica, an anti-epileptic agent with analgesic and mood stabilising properties. Dr Boundy asked the plaintiff to contact him and inform him of how she responded to the medication. The plaintiff did not contact Dr Boundy and did not have any further consultations with him.

41. On 30 August 2011 the plaintiff again saw Dr Hillman. On that occasion she informed Dr Hillman of her consultations with and treatment prescribed by Drs Fernando and Boundy. The plaintiff told Dr Hillman that Lyrica had given her immediate relief, but that she had weaned herself off that medication over a week and a half. She reported that her right shoulder pain was settling but persistent. On examination, Dr Hillman noted that she still had a lump on her left buttock where the haematoma previously had been.

42. The plaintiff gave evidence that her injuries had a significant impact on her ability to cope with the domestic work required in the course of her employment. She gave evidence that she was in pain when she had the vacuum, bend or lift anything. She also had pain in her right arm when working on the computer. She experienced pain in the day-to-day activities required by her employment even when she did not anticipate that those activities would cause pain, to the extent that on occasions she was in agony. Notwithstanding those restrictions, she generally managed to perform the duties expected of her in her employment. On the occasions she was unable to complete certain tasks, because of her pain, she would have to explain to the relieving staff member that those tasks would need to be completed by that staff member. For the most part, the plaintiff tried not to leave duties incomplete for the next shift and she put up with the pain to ensure that all her duties were completed, to the extent that she “suffered terribly” and “by the time [she] finished [she] was in agony”.

43. There was domestic work required by the plaintiff’s employment at St Saviours. In her evidence the plaintiff said that she coped with doing the domestic work at St Saviours after the fall with a lot of pain and that she experienced an exacerbation of her pain after work.

44. In her work for MYC, the plaintiff was only required to do mopping, sweeping or vacuuming twice a week. She found that the domestic tasks took her a lot longer to complete as a result of her pain because she tended to take breaks during the course of the domestic work. She gave evidence that she experienced a lot of pain when cleaning bathrooms particularly when doing the mopping. She also gave evidence that she found it difficult to sit or stand for extended periods; being between 5-10 minutes for standing.

45. In her own home, the plaintiff gave evidence that her partner had taken responsibility on a continuing basis after the fall for the vacuuming, cleaning the bathroom, changing the bed linen and doing the laundry. She estimated that after the fall her partner now did the interior housework for about 6-8 hours per week. The plaintiff gave evidence that after the fall she was not capable of doing the work that was done by the cleaner.

46. Throughout the remainder of 2011 and the entirety of 2012 the plaintiff continued to seek treatment from Dr Hillman and she continued to complain of low back and right shoulder pain. The treatment recommended by Dr Hillman was conservative and consisted of the attempted reduction of her pain by the use of over-the-counter medications; mainly Neurofen and Panadol. She did continue with the medication Lyrica from time to time, but at some point ceased using it altogether.

47. In March 2013 Dr Hillman referred the plaintiff to a plastic surgeon, Dr Preketes, for opinion on the deformity of her left buttock. Dr Preketes ordered an MRI scan. On 2 May 2013 the plaintiff was reviewed by Dr Preketes with the results of the MRI scan. Dr Preketes opined that the large dimple on her left buttock was secondary to an organised haematoma which had collapsed. He advised Dr Hillman that one way of repairing the defect or making some improvement would be to perform some liposuction, although it “would not correct her problem by 100%”.

31. On 23 April 2013 the plaintiff saw Dr Seex, neurological and spinal surgeon, on referral from Dr Hillman. Dr Seex received a history of the fall in March 2011 and that the plaintiff had been suffering from lower back pain involving her left leg and pain in her right arm since that time. He noted the back and leg are painful at all times, but the pain fluctuated in intensity. He noted that the pain in the right arm fluctuated in intensity and that there were times in which she did not have any pain in the right arm. Dr Seex opined that at the time he saw her, the plaintiff would not be assisted by surgical intervention.

32. Following May 2013, the plaintiff continued her conservative treatment under the supervision of Dr Hillman.

33. The plaintiff gave evidence that in about September 2014 her mother stopped driving, ceased assisting with the housework and caring for herself, as a result of dementia. The plaintiff described that she suffered pain when she tried to assist her mother to bathe, dress and to use the toilet. She gave evidence that her partner now did her mother’s laundry, made her mother’s bed and changed her mother’s bed linen to assist the plaintiff because she experienced pain when undertaking those tasks. During the course of her evidence, she became distressed when she spoke about her difficulty in providing her mother with the care that she needs, and she described feeling “horrible” about not being able to help her mother because of her pain. The plaintiff gave evidence to the effect that she wanted to care for her mother at home for as long as that was manageable, to avoid her mother suffering any embarrassment.

34. As at the date of the hearing, the plaintiff gave evidence that she experienced daily pain in her right upper arm between her shoulder and her elbow and daily pain in the lower back which extends down her left leg. The pain was exacerbated by the housework she performed in the course of her employment and at home. She takes Panadol and Neurofen daily, but more on the days when she is working. Those medications do not relieve the pain completely, but “ease it off a little bit”. She did not believe that she was coping well with work and she had giving consideration to giving up her employment at St Saviours so that she was not in as much pain every day. She was no longer deriving the same degree of enjoyment from a work as she did before the fall because she is finding it difficult to complete her duties and that is affecting the way she feels about work.

35. The plaintiff was not challenged in cross-examination as to the veracity of her evidence. The questions put to her in cross-examination were done so with an acceptance on behalf the defendant that her physical activities, including her work, caused her pain in her lower back, left leg and right arm. For the most part, it was suggested to her that she could still perform the activities that she had undertaken prior to the fall, but that she did so with pain. Further, the defendant accepted that the fall had left her with a deformity of the left buttock for which it was reasonable to undertake surgical revision to alleviate the plaintiff’s concern over the appearance of that part of the body. The defendant accepted that the plaintiff was a stoic person, that she took great pride in undertaking the tasks associated with her employment to the best of her ability and that in order to do so she had put up with pain in the past and would continue to do so in the future.

36. I find that the plaintiff as a person doing her best to tell the truth. I observed her demeanour in the witness box and it assisted me to accept that the plaintiff was genuine in her evidence. I observed from time to time that the plaintiff was uncomfortable sitting in the witness box and in the body of the Court for a relatively prolonged periods and that she was genuinely distressed when giving evidence about the frustration associated with her physical limitations, particularly on the topic of assisting her mother. The plaintiff impressed me as a stoic person who had continued to do her best to work and to provide services to her family with the limitations imposed on her by her injuries. I accept the plaintiff as a witness of truth and I accept her evidence.

Medical Evidence

54. The plaintiff’s evidence as to the nature and extent of her injuries and disabilities was with one exception supported by the medical evidence. In particular, the clinical notes and reports of Dr Hillman, her treating general practitioner, supported the level of pain that she had experienced and frequency of her complaints about that pain.

The medico-legal evidence

55. The plaintiff relied on the following medico-legal reports:

1. Dr Ronald Thomson, Consultant Surgeon dated 6 May 2013 and 21 July 2014;

2. Dr Peter Giblin, Orthopaedic Surgeon dated 19 August 2013 and 11 August 2014;

3. Dr Thomas Oldtree-Clark, Consultant Forensic Psychiatrist dated 2 October 2013; and

4. Dr Howard de Torres, Hand and Plastic and Reconstructive Surgeon, dated 1 August 2014.

56. The defendant relied on the following medico-legal reports:

1. Dr Frank Machart, Orthopaedic Surgeon dated 24 July 2014;

2. Dr Jonathan Phillips, Consultant Psychiatrist dated 3 September 2014; and

3. Dr John Giles, Plastic Surgeon dated 9 December 2014.

57. I will return to consider the medico-legal evidence in more detail when I come to make findings about the nature and extent of the plaintiff’s injuries.

Other lay evidence

Iosefa Faalogo

58. The plaintiff’s partner, Mr Iosefa Faalogo gave evidence.

59. The plaintiff and Mr Faalogo commenced a de facto relationship in about 2004. He described her before the fall as happy and said that she enjoyed having a weekend away, going out and doing things together with him around the house.

60. In the relevant period, Mr Faalogo was employed full-time as a security guard. He commenced work at 6.00pm and finished at 3.00am, five days per week. His evidence was that prior to the plaintiff’s fall he did not do any of the interior housework.

61. Prior to the plaintiff’s fall he gave evidence that she did the interior housework with the assistance of her mother. He said that the cleaner attended fortnightly to clean the bathrooms, the windows and things of that nature. He gave evidence that the plaintiff always kept the house clean.

62. Mr Faalogo gave evidence that after the fall the plaintiff complained that she had a sore back, a sore shoulder and a sore arm. He has noticed that she has physical limitations, particularly that she has limited movement in her arm when she showers, does her hair or puts on her clothes. He gave evidence about the plaintiff’s ‘struggle’ to undertake the tasks necessary to care for her mother.

63. Mr Faalogo also gave evidence about the appearance of the haematoma on the plaintiff’s left buttock immediately after the fall and later. He gave evidence that the plaintiff is uncomfortable and embarrassed about the deformity of her left buttock.

64. Mr Faalogo’s evidence was that after the fall he had taken over most of the interior housework and that in the last couple of months the plaintiff’s mother was unable to assist because of her illness.

65. Mr Faalogo estimated that on a day when he did not have to do much housework he would spend between 2 to 3 hours a day, cleaning, cooking, doing the laundry, vacuuming, cleaning the bathrooms and cleaning the outdoor area. He further estimated that on a day when he had to do a lot of housework he would spend about six hours on that day doing the same tasks.

66. In cross-examination, Mr Faalogo was challenged on the veracity of his estimates. It was put to Mr Faalogo and he accepted that the plaintiff did the same type of interior housework that she had done prior to the fall, but that when she did so she experienced pain. Mr Faalogo accepted that the plaintiff could with pain still cook, do the laundry and make the beds.

67. It was submitted on behalf the defendant that Mr Faalogo’s evidence should not be accepted because it was contrary to the plaintiff’s evidence. I do not accept that submission. Mr Faalogo’s estimates included tasks that were not undertaken by the plaintiff prior to the fall, such as the outside work, and also tasks which she could still undertake after the fall, such as the cooking.

68. I accept that Mr Faalogo was trying to do his best to tell the truth. In his evidence, I noted that it appeared to me that English might not have been his first language. I accept Mr Faalogo as a truthful witness and I accept his evidence.

69. In my view, the evidence of the plaintiff and Mr Faalogo as to the amount of interior housework performed by him after the fall can be reconciled. I will return to that issue when considering whether or not I should award damages for gratuitous attendant care services.

Ms Eva Maher

70. The plaintiff’s co-worker and friend, Ms Eva Maher gave evidence. The plaintiff met Ms Maher when they were both youth officers at Cobham Juvenile Detention Centre in about 1998 and they became friends. On leaving Juvenile Justice in 2007, the plaintiff worked with Ms Maher for Sovereign Training, which was an entity owned by Ms Maher’s daughter. They worked together again from about 2010, when the plaintiff was employed by MYC. At that time, Ms Maher was employed casually by MYC to undertake overnight relief shifts at the Marayong house. She had some limited experience of working alongside the plaintiff at the Marayong house. Ms Maher described the plaintiff as an extremely hard worker and was unaware of any complaint relating to the quality of her work.

71. Ms Maher was informed by the plaintiff about the fall. After that, Ms Maher observed that there were occasions when the plaintiff appeared to be in pain, that her posture was “lopsided”, that she took medication and that she no longer attended social engagements that involved walking any distance. The plaintiff had also showed Ms Maher the deformity of her left buttock.

72. In addition, there were occasions when the plaintiff could not complete the task required by her employment at MYC and she was required to inform Ms Maher of those matters in accordance with the handover procedures for the house.

73. In cross-examination, it was accepted by Ms Maher that the plaintiff had considerable skills as an adult educator in her field.

74. It was submitted on behalf the defendant that I should accept Ms Maher as a witness of truth, and I do so without hesitation.

75. In my view, the evidence of Mr Faalogo and Ms Maher supported the plaintiff’s case.

Consideration

76. Taking into account the oral evidence, the evidence from the plaintiff’s treating doctors and the medico-legal reports relied on by the plaintiff and the defendant, I make the findings set out in the following paragraphs in relation to the injuries referred to in paragraph 9 of this judgment.

Injury to the back

77. The plaintiff suffered an injury to her lower back when she fell on the stairs at the defendant’s premises. That injury has resulted in pain in her lower back as well as left lower limb radiculopathy that limits her daily activities.

78. Dr Thomson’s opinion is that the injury represents a permanent aggravation of pre-existing but previously asymptomatic degenerative disease in her lumbar spine. Dr Giblin and Dr Machart are of the opinion that the plaintiff’s back injury is a soft tissue injury, with the proviso added by Dr Machart that her recovery time may have been affected by the pre-existing asymptomatic degenerative changes in the lumbar spine.

79. There is no dispute amongst the doctors that:

1. the plaintiff suffers from low back and left leg pain which limits her daily activities;

2. the present position is likely to be permanent; and

3. she was unfit for some occupations requiring repetitive, heavy, lifting or twisting movements.

80. As a result of the common ground between the doctors on this injury, I do not need to resolve the question of whether or not it represents an aggravation of the pre-existing degenerative disc disease. On both cases the degenerative disc disease has had some part to play, but there is no dispute that prior to the fall the plaintiff was not suffering any pain in her lower back and left leg.

81. Dr Giblin’s first opinion was that her condition was stable but that she was likely to experience exacerbations and remissions associated with progressive and permanent physical limitation. He estimated, in his first report that she will be unable to continue with her current work environment beyond the age of 60 as a result of the expected deterioration she will suffer. In his second report, Dr Giblin opined that she remains fit for her current occupation except to the extent that she may be susceptible to aggravation and long-term deterioration. He seemed to modify his first opinion in the last paragraph of the second report, where he said:

Overall, she remains fit for her current job up to the age of 60 but beyond that period of time, the deterioration of her injuries will seriously chamfer (sic) [I interpolate hamper] her ability to obtain work on the open labour market.

82. Dr Machart was of the opinion that there was no medical indication that her condition is likely to deteriorate or even that she would suffer periods of deterioration that may cause her to retire prematurely.

83. I reject Dr Giblin’s opinion that her injuries will deteriorate to the extent that she would be unemployable at age 60.

84. I find that she is however experiencing considerable difficulty with maintaining her employment at St Saviours, because she cannot avoid heavy housework in the ordinary course of her duties. In my view, that difficulty does amount to a loss of earning capacity that will be productive of economic loss in the future. I will return to deal with that matter further when assessing whether or not she has suffered any loss of earning capacity as a result of the injuries sustained in the fall.

Injury to the right arm

85. The plaintiff sustained injury to her right shoulder when she fell on the stairs at the defendant’s premises. I accept Dr Thomson’s opinion that the injury was caused when she put out her hand to break her fall and at that the humerus was forced upwards.

86. The extent of the injury to her right shoulder is objectively demonstrated by the ultrasound results, which I have previously noted. I find that the changes evident on the ultrasound were caused by the fall.

87. The plaintiff has suffered pain in her right shoulder and right arm and limitation of movement in that limb as a result the injury. I accept that use of her right arm causes her further pain and that she has suffered ongoing reduction in the strength of her right arm and sleep disturbance.

88. I accept that as a result she is permanently unfit to use her right upper limb for repetitive, heavy or recurrent activities, particularly above shoulder height.

89. The matters that I have set out as to the potential deterioration of her lumbar spine injury and potential premature retirement are also relevant to her shoulder injury and I will not restate them.

Injury to the left buttock

90. The plaintiff sustained injury to her left buttock when she fell on the stairs at the defendant’s premises. The injury was initially associated with significant bruising and tenderness to touch. The lump that developed at the site of the haematoma, which became larger over time, was caused by residual fat necrosis following the haematoma. The increase in size of the lump was objectively confirmed by ultrasound and MRI studies. The plaintiff has been left with a deformity by way of a large dimple on her left buttock, which is depicted in exhibit PX2. The deformity continues to cause her some discomfort when sitting and driving. The plaintiff is also conscious of the deformity and is concerned that it is visible through her clothing, to the extent that she has modified the way she dresses to hide it.

91. Each of the plastic surgeons who prepared a report in these proceedings, opined that the appearance of the deformity could be improved, but not removed entirely by a suction assisted lipectomy. This surgery is likely to leave her with a small residual deformity and some numbness. Dr de Torres opined that this surgery would require hospitalisation for one day and that the plaintiff would have to wear a corset for six weeks post operatively.

92. I am satisfied that it is appropriate to allow for the surgical revision in the plaintiff’s damages claim. Accordingly, the pain and sequelae associated with that surgery should be taken into account in assessing damages for non-economic loss.

Persistent Depressive Disorder

93. I am not satisfied that the plaintiff has established on the balance of probabilities that she suffers from Persistent Depressive Disorder or that even if she does that it is related to the fall.

94. The plaintiff qualified Dr Oldtree-Clark to provide a medico-legal opinion on her mental state. Dr Oldtree-Clark did not include any history from the plaintiff that referred to psychological symptoms prior to her fall. He noted that she had seen a counsellor and had been prescribed medication called Pristiq, which he noted was a “potent antidepressant”. The doctor described the plaintiff as having a post-traumatic reaction which had developed into Persistent Depressive Disorder. He thought it was more probable than not that her depression was “therefore related to the injuries she suffered from the time of the fall”.

95. The plaintiff saw Dr Phillips at the request of the defendant. The plaintiff gave a history to Dr Phillips that “she had enjoyed good psychological health” before the time of the fall. She described all of her psychological symptoms to Dr Phillips as having occurred after the fall. Dr Phillips noted the content of Dr Hillman’s notes and that the plaintiff had been suffering from a number of depression and anxiety-based symptoms for some time prior to the fall, but that those symptoms were not sufficient to warrant a psychiatric diagnosis. Dr Phillips accepted that the plaintiff has experienced a mild psychological reaction to the shock of the fall and in the context of her ongoing physical problems. He opined that “the plaintiff has a group of mild but understandable depression spectrum symptoms which are sub-syndromal in type”. He did not believe her symptoms reached the diagnostic threshold for any disorder and noted that the plaintiff was not requiring treatment with antidepressants or any other psychotropic medication.

96. The plaintiff was cross-examined on a number of entries appearing in Dr Hillman’s clinical notes dating from 4 December 2005 up to and including 22 February 2011, a few weeks before her fall that related to complaints of depression and anxiety. There were seven relevant entries in Dr Hillman’s notes in which the plaintiff complained on different occasions of insomnia, anxiety and depression that led Dr Hillman to prescribe sleeping tablets and two different anti-depressants being Effexor and Pristiq. On separate occasions prior to the fall, Dr Hillman increased the dose of both anti-depressants in an effort to alleviate her symptoms.

97. The plaintiff’s evidence in cross-examination was to the effect that she could not recall the attendances on Dr Hillman that were put to her, save to the extent that she recalled being prescribed some form of anti-depressant medication that she ceased taking because it made her feel sick. In re-examination the plaintiff gave evidence that at the relevant time she had been undergoing hormone replacement therapy and that the change from an implant treatment to a tablet had caused her to feel depressed and that those feelings resolved when she recommenced using the implant.

98. It was not suggested to the plaintiff in cross-examination that her failure to recall was disingenuous. No submission was put on behalf the defendant that the failure of the plaintiff’s recollection should adversely affect her credit.

99. The plaintiff gave an unreliable history to both Dr Oldtree-Clark and Dr Phillips. She gave no history of psychological symptoms occurring prior to the fall and no history relating to her hormone replacement therapy. In the circumstances, I cannot rely on the opinion of Dr Oldtree-Clark because in my view his diagnosis and his opinion as to causation are affected by the unreliable history and he was not provided with Dr Hillman’s clinical notes.

93. I accept the opinion of Dr Phillips to the effect that the plaintiff has suffered from some mild symptoms of depression that are insufficient to ground a formal diagnosis. This opinion is consistent with my findings to the effect that the plaintiff has suffered regular and ongoing pain and limitation in the conduct her everyday activities.

Damages for non-economic loss

101. An award of damages for non-economic loss is governed by section 16 Civil Liability Act 2002. In assessing non-economic loss the Court is obliged to determine the severity of the plaintiff’s non-economic loss by reference to a proportion of the most extreme case: Hall v State of New South Wales [2014] NSWCA 154 at [28]. The task involves an assessment of the restrictions imposed by the injuries on the plaintiff’s pre-earning capacity: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [13]. Non-economic loss is defined by section 3 Civil Liability Act 2002 to mean any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.

102. The plaintiff has experienced daily pain and suffering from the date of her fall until the date of hearing. Her injuries have stabilised and the pain suffered by the plaintiff will continue indefinitely into the future. The pain experienced by the plaintiff has had and will continue to have a significant loss of amenities of life. The plaintiff has experienced interference with her duties at work and that has reduced her job satisfaction. She has also experienced interference with her domestic duties which has required her partner to take on more of the house work and has limited her ability to care for her infirm mother. She no longer enjoys certain social activities or weekends away with her partner. Both Mr Faalogo and Ms Maher gave evidence that the plaintiff has become withdrawn as a result of her injuries. The plaintiff has experienced disfigurement from the fall that is likely to be lessened but not eliminated by the proposed surgical revision. She feels self-conscious about the disfigurement and believes it is necessary to take active steps to hide it, by wearing loose fitting clothing.

103. I was referred by Mr Lloyd to a number of decisions that the purpose of establishing the appropriate award for non-economic loss in these proceedings, pursuant to section 17A Civil Liability Act 2002, being:

1. Strike v Fiji Resorts Ltd [2012] NSWSC 1271;

2. Carroll v Thompson [2014] NSWDC 96;

3. Hall v State of New South Wales [2014] NSWCA 154;

4. Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264.

104. It was submitted on behalf of the plaintiff that the appropriate figure was 40% of a most extreme case. It was submitted on behalf of the defendant that the appropriate figure was in the range of 20-28% of the most extreme case.

105. Having regard to the findings I have made and to the guidance provided by the cases to which I was referred, I assess the plaintiff’s non-economic loss at 28% of the most extreme case.

106. That results in an award of damages for non-economic loss in the sum of $80,080.

Out of pocket expenses

Past

107. Past out-of-pocket expenses were agreed in the sum of $2,437.75, I will round this to the nearest dollar.

Future

108. I allow the sum of $10,000 representing the mid-point of the cost estimates provided, relating to the suction assisted lipectomy required to alleviate the plaintiff’s left buttock deformity caused by the fall.

109. I allow a further sum of $5,000 for medication to be purchased and future consultations with the plaintiff’s general practitioner.

110. The total amount of damages for future out-of-pocket expenses is the sum of $15,000.

Economic loss

Past

111. The plaintiff made no claim for past economic loss. Her evidence was that she took sick leave from time to time and that she was paid by her employers for that leave.

Future

112. In assessing damages for economic loss I am required to apply sections 12 and 13 Civil Liability Act 2002.

113. The plaintiff presently earns $1,520 net per week from her employment with MYC: PX6. The plaintiff currently earns $403 net per week from her employment with Anglicare: PX7.

114. The defendant conceded that it was appropriate that the plaintiff undergo the suction assisted lipectomy. I intend to allow a period of two weeks away from her employment for her to have the surgery, recover from it and attend any consequential medical appointments. The plaintiff is therefore entitled damages in the sum of $3,846 for the future economic loss related to that surgery.

115. The plaintiff was born on 19 October 1959 and would in ordinary circumstances retire at age 67 on 19 October 2026 (approximately 11.5 years).

116. From 2010 the plaintiff has exercised her earning capacity as a Youth Worker in residential care. As a result, the plaintiff has been entitled to significant allowances, loadings and benefits to compensate her for the overnight nature of that work. That work requires the plaintiff to undertake some housework, in the circumstances that I have described.

117. In about 2013 the plaintiff’s workload at St Saviours was reduced for administrative reasons and not as a result of her injuries from 3 shifts per fortnight to 2 shifts per fortnight. The plaintiff did not seek extra shifts from MYC to replace any lost income that occurred as a result.

118. But for the fall, I am satisfied that the plaintiff would have continued to work for MYC and Anglicare as a youth worker in their residential facilities until she reached her ordinary retirement age of 67 years. The evidence is that the plaintiff has always been a hard worker and a good employee. Prior to the fall she achieved a high level of job satisfaction from her work. She had a long work history of occupations that involved assisting young persons in compulsory care. The work at MYC and St Saviours was similar work and as a result of its conditions, in particular that it required overnight supervision of young persons, was well remunerated.

119. The plaintiff has been having difficulties with the nature of the work at St Saviours because she is required to perform housework on each shift and there is at least an increased possibility that she may be required to physically intervene to deal with unruly residents. In contrast, the nature of the semi-independent living program at MYC and the age of the residents translates into a requirement for the plaintiff to complete housework on an average of 4 shifts per fortnight.

120. The plaintiff gave evidence that she has continued to work two jobs for financial reasons and because she had always enjoyed her work. She has considered giving up her work at St Saviours to help with the pain, but was not sure what she would do.

121. I have rejected Dr Giblin’s opinion referred to in [81] above, because it is inconsistent with my findings as to the plaintiff’s stoicism and as to the level of satisfaction she obtains from her work. Dr Giblin’s opinion is also inconsistent with the plaintiff’s demonstrated work history from the time of the fall to the date of the hearing. There was no evidence to suggest that the plaintiff has taken an extended period of leave or suffered any particular exacerbation of her symptoms that would lead me to accept that it was likely that within a period of five years she would be unable to work at all. I do accept that by reason of her physical limitations caused by the pain she experiences, the plaintiff is at a disadvantage on the “open labour market”.

122. The plaintiff has other residual earning capacity, particularly as an adult educator in the field of youth and community services. However I expect such work would not attract the same remuneration as she is currently receiving as a youth worker in the residential facilities. Alternatively, the plaintiff may be able to seek further shifts from MYC.

123. In my view, despite her stoicism, the plaintiff has clearly suffered some loss of earning capacity by reason of the restriction of her ability to undertake certain tasks and/or to complete those tasks in a timely fashion by reason of the pain she experiences in her lower back, left leg and right arm. The position to date has been that after the fall she has continued to perform her duties at MYC and St Saviours with some difficulty, albeit without complaint from either employer. It is not reasonable to expect that she would be able to continue to do the same work, with her current levels of pain for the next 12 years, being her expected date of retirement. The plaintiff will, in my view, make a change to her work practices in the very near future that will result in an economic loss.

124. I find that the plaintiff is likely to cease her work at St Saviours in the next six months because of the limitations placed on her by her injuries. That will result in a loss of $400 net per week.

125. I find that at that time it would be reasonable for the plaintiff to seek a further one shift per fortnight with MYC or to find alternate employment as an adult educator. Her capacity to seek further shifts from MYC is limited to one shift per fortnight by reason of her injuries. Whilst I do not know what the plaintiff would earn from that other employment, it seems reasonable to allow a figure of $225 per week.

126. As a result I find that the plaintiff has suffered a loss of earning capacity of $225 per week.

127. I allow damages for loss of earning capacity of $225 per week for 11 years (444 on 5% tables) discounted by 15% for vicissitudes of life, which amounts to an award of $84,915.

Loss of superannuation

128. Section 15C Civil Liability Act 2002, provides that the maximum amount of damages that may be awarded for loss of employer superannuation contributions is the relevant percentage of damages payable for the deprivation or impairment of the any capacity to which the entitlement to those contributions is based.

129. Section 19(2) Superannuation Guarantee (Administration) Act 1992 (Cth), provides that from 1 July 2015 the minimum percentage required by law to be paid as employer superannuation contributions is 10%, on gross earnings. Accordingly, I have used the figure of 12% on net earnings.

130. I allow 12% on the future economic loss, being an award of $10,190.

Gratuitous Attendant Care Services and Cost of Commercial Services

Gratuitous Attendant Care Services

131. The plaintiff’s claim for damages for gratuitous attendant care services is subject to section 15 Civil Liability Act 2002.

132. Mr Faalogo gave evidence that he has taken up a significant amount of the interior housework following the plaintiff’s fall. This has coincided for at least since about September 2014 with the plaintiff’s mother being unable to assist with the housework because of her progressive dementia. The plaintiff gave evidence that her mother’s decline was gradual and presumably her inability to assist with the housework was also gradual, until it ceased in September 2014.

133. The plaintiff told Dr Machart that she was able to do the housework with pain and discomfort. The plaintiff maintained in cross-examination that what she told Dr Machart was true and that it represented the true position. Mr Faalogo gave similar evidence in cross-examination that he had seen the plaintiff do all of the various interior housework tasks after the fall.

134. The plaintiff gave evidence that Mr Faalogo did about 6-8 hours per week of housework after the fall. Mr Faalogo gave evidence of doing a lot of household work after the fall but not all of it was work that the plaintiff did before the fall or that she had a need for someone else to perform. In addition, some of the work Mr Faalogo now performs is replacing the services previously provided by the plaintiff’s mother when she was able to do so.

135. I accept that the plaintiff’s injuries have created a reasonable need for the provision of some services to her, particularly when she is experiencing pain after a bad day at work. However, by reason of the fact that she can still perform the interior housework with pain, that reasonable need is not constant except for the work done by the cleaner, which I find she is unable to do. Whilst there may be occasions when Mr Faalogo performs 6 to 8 hours of interior housework in a week as a result of the reasonable need created, I am not satisfied that this is the position on a week to week basis.

136. In addition, some of need to perform the interior housework imposed on Mr Faalogo after September 2014 is referable to the plaintiff’s mother’s illness, rather than the plaintiff’s injuries sustained in the fall.

137. Having regard to all of the evidence, the requirements of section 15 are not satisfied.

138. Accordingly, I am of the view that the plaintiff’s claim for damages for gratuitous attendant care services must fail.

Cost of Commercial Services

139. Prior to the fall the plaintiff employed a cleaner for 3-4 hours per fortnight to do the heavy housework tasks at the cost of $100 per clean.

140. I am satisfied that the plaintiff’s injuries have rendered her incapable of performing the household work done by the cleaner after the fall and on an ongoing basis. I allow the sum of $50 per week to represent the cost of commercial services provided to the plaintiff as a result of her injuries.

141. In the past that amounts to an award of $50 per week for 4 years being $10,400.

142. In the future that amounts to an award of $50 per week for 33 years (5% multiplier of 855.7) discounted by 15% for vicissitudes, which amounts to $36,367.

Conclusion

143. The damages I have awarded are set out as follows:

Non-economic loss (28% most extreme case)      $ 80,080

Out-of-pocket expenses   Past            $ 2,438

Future            $ 15,000

Economic loss      Surgery         $ 3,846

Loss of capacity      $ 84,915

Loss of superannuation               $ 10,190

Commercial services   Past            $ 10,400

Future            $ 36,367

Total  $243,236

144. There will be a verdict for the plaintiff in the sum of $243,236.00 and judgment accordingly.

145. I will hear the parties on the question of costs.

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Decision last updated: 30 October 2015