Mcintosh v Canberra Choral Society - [2022] ACTMC 16

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mcintosh v Canberra Choral Society
[2022] ACTMC 16
Hearing Date(s):	04, 05, 06 and 07 April 2022
DecisionDate:	15 July 2022
Before:	Magistrate Stewart
Decision:	See [11, 123]
Catchwords:	CIVIL JURISDITION – Award of damages – Temporary stage set up causing hazard - Duty of Care - Breach of duty and causation - Contributory Negligence.
Legislation Cited:	Civil Law Wrongs Act 2002 (ACT)
Cases Cited:	Aitkenhead v Kaufline (No.3) [2014] ACTSC 83 Austen v Tran [2022] ACTSC 114 Pryce v Dunlap (No 2) [2016] ACTSC 353 Griffiths v Kerkemeyer[1977] HCA 45; (1977) 139 CLR 161 Hall v Martin [2020] ACTSC 233 Joslyn v Berryman [2003] HCA 13 Macdonald v Mailander [2014] ACTSC 45 Malec v Hutton Pty Ltd (1990) 169 CLR 638 Nouri v Australian Capital Territory [2018] ACTSC 275 Podreberesek Australian Iron and Steel [1985] HCA 34 Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422
Publications Cited:	Supplement to The London Gazette 29 December 1995, London Gazette, No 54255, 30 December 1995,1-2.
Parties:	Margaret Beatrice Mcintosh (Plaintiff) Canberra Choral Society (Defendant)
Representation:	Counsel FJ Purnell SC (Plaintiff) A Muller (Defendant)
Solicitors Blumers Personal Injury Lawyers (Plaintiff) HWL Ebsworth Lawyers
File Number(s):	CS 56 of 2021

MAGISTRATE STEWART:

Introduction and issues

The Plaintiff’s case is that she was injured after falling into a hazardous gap created by the construction of a temporary stage on top of the altar at St Christopher’s Cathedral in Manuka.

There is little that is not in issue. Duty of care has been agitated in the defendant’s written submissions and breach of that duty. Causation and quantum of damages are all disputed by the defendant.

Factual summary

The plaintiff’s name is Margaret Beatrice McIntosh who was born in 1950. She is now 71 years old.

It is a matter of public record that her late husband Sir Malcolm Kenneth McIntosh was conferred the title Knight Bachelor for his service to the (British) Ministry of Defence on 30 December 1995[1] by Her Majesty Queen Elizabeth II. Thus, the plaintiff is properly addressed by her courtesy title Lady McIntosh, or, Margaret, Lady McIntosh.
[1] Supplement to The London Gazette 29 December 1995, London Gazette, No 54255, 30 December 1995,1-2.

Lady McIntosh complains that she was injured on 23 March 2018 when traversing a temporary stage. That stage[2] comprised of ‘risers’ that had been erected for a recital of the “St Matthew Passion” on the altar of St Christopher’s cathedral. Lady McIntosh was the newly elected president of the defendant and one of the chorists rehearsing for the performance the next evening.
[2] In this decision if I refer to a left- or right-hand side of the stage I am referring to the perspective of a member of the congregation looking forward at the altar.

The construction of the temporary stage was challenged by obvious immovable marble objects at the cathedral – the altar itself and the altar floor, the sanctuary floor that surrounded the altar floor two steps below it, the stairs from the sanctuary floor to the congregational floor and the baptismal font and floor.

Rented ‘risers’ were utilised by the defendant to raise the height of the sanctuary floor almost to the level of the altar floor. The riser could not physically cover the tread (the part of a stair or step that one steps on) of the step down to the sanctuary floor. Thus, a roughly ‘U’ shaped “gutter gap” was created between the altar floor and the riser when the risers were put in place. A diagram[3] tendered has the depth of the gap being between 130 and 160mm deep and the tread at the bottom of the ‘U’ being 390mm wide. For those troubled by scale a school ruler is still probably 300mm or roughly 12 inches long.
[3] EX P4

It is Lady McIntosh’s case that because of her position in the choir she had to negotiate two gutter gaps to get to her allocated position. She successfully did so on her way into position for the rehearsal however fell whilst attempting to negotiate the second gutter gap at the end of the first rehearsal session. That fall is said to have caused the injuries complained of in the plaintiff case.

The plaintiff seeks damages for the following injuries alleged to have been sustained by virtue of that fall:

a. Displaced fracture of the left wrist requiring surgery.

b. Un-displaced fracture of the left patella (kneecap);

c. Permanent aggravation to the left shoulder.

d. A cut to the left ankle; and

e. Bruising to both legs.

10. Lady McIntosh was taken to hospital that evening, partially treated and discharged. Despite the injuries that she had suffered, she returned to St Christopher’s to perform the next evening.

11. Ultimately, the plaintiff’s claim mostly succeeded. Here follows the destination to that decision.

Plaintiff’s witness evidence

12. Lady McIntosh spoke politely and thoughtfully. She was careful to answer and listened before speaking. She was not troubled by cross-examination, in fact, her effect changed little between chief and cross. I formed the view that her memory was quite accurate and that she was making a genuine effort to tell the truth. Aspects of her evidence and her version made it very clear that she was not a malingerer and the type of person who gets on with things rather than dwelling on misadventure. In short, I found that she was both truthful and reliable.

13. Lady McIntosh told the court that she:

a. Had become the president of the defendant on 18 March 2018. By that time key decisions had already been made about St Mathew Passion.[4]
[4] T22

b. Was emailed a plan for her position on the stage (at the left rear of the stage five positions in from the far left) and the route that she was to take marked in black.[5]
[5] T21 and T4 T223

c. Had to cross two gutter gap hazards to get to her position on the risers.[6]
[6] T23

d. Was not warned about the gutter gaps and had not been involved with the planning for or planned use of the risers for the performance in any way.[7]
[7] Ibid

e. Had arrived at either 6.45 or 6.50 pm for a 7.00 start for the rehearsal.[8]
[8] T24

f. Followed the route set out for her and was “absolutely” taken by surprise when she negotiated the gutter gap hazards.[9]
[9] Ibid

g. Had entered the stage from the left of the altar and with the use of a temporary set of two steps she would not have had to traverse a gutter gap.[10]
[10] T26

h. Would have avoided engaging any gutter gaps if she had exited on the left-hand side and walked down the steps.[11]
[11] T27

Took the photographs at pages 306 and 306 of the tender books that showed the nature of the gutter gaps on the night of the performance.[12]
[12] Ibid I note that the photograph on page 307 contains a potential optical illusion. What appears to be a ramp across the gutter gap is in fact the top surface of a stool seated on the black riser.

j. “…was walking across toward – to speak to Brenda and didn’t look down and so I fell straight into the gap. I recall putting my left hand out to try to break my fall or to prevent falling and I fell down the two steps onto the marble floor and crashed into the screen which was behind the riser.”[13]
[13] T30

k. Was injured in the fall in the way set out in the statement of claim.[14]
[14] T30-31 and T45-51

l. Was not involved in a discussion and decision at St Christophers about the use of the risers on 05 March.[15]
[15] T39

m. Was not present when the risers were present and was unsure if she knew about the use of them prior to the rehearsal.[16]
[16] T39-40

n. Was not warned about the gutter gap hazards or height differences created by the use of the risers at the time of the rehearsal.[17]
[17] T40

o. Was aware that there were 110 choristers on the stage.[18]
[18] T42

p. Could see that the risers were clearly visible, that lighting was very good however, that the difference in height between the risers and steps was not easy to see.[19]

q. Only saw the gap as she was almost upon it.[20]

r. Was dressed in flat shoes and casual clothes for the rehearsal.[21]

[19] Ibid

[20] Ibid

[21] T44

14. The important aspects of Lady McIntosh’s cross examination were:

s. That she knew the risers were to be used but wasn’t aware of how they were set up[22].
[22] T60

t. She ‘definitely’ did not attend the Cathedral prior to attending an organised dinner across the road at Belluci’s restaurant prior to the rehearsal.[23]
[23] T63

u. She had attended the cathedral on the prior Tuesday to discuss seating on the front step of the altar. Risers were not discussed on that day.[24]
[24] T66

She first saw the gutter gap when she traversed it and the gutter gap would have been very difficult to step down into.[25]
[25] Ibid

w. She became concerned about the presence of the gutter and was aware of elderly members of the choir some of whom ambulated with walking sticks and mobility walkers.[26]
[26] T67-T68

That she did not feel that she was able to raise her concerns for everyone’s safety at the time but asked for the gap to be filled after her fall.[27]
[27] T68

y. For the rehearsal screens and were placed behind the risers that prevented egress from the rear. The screens were placed up on the risers for the performance.[28]
[28] T69

z. At the rehearsal interview she walked back along the same path she had taken earlier to talk to Brenda. She could not see the second gutter gap from where she had been seated. It was very difficult to see the gap and she just looked ahead and fell into the gap. She accepted that in doing so she had only just traversed the first gap that she had come to.[29]
[29] T71

aa. She denied that she had seen the second gap, stepped over it and in stepping over it overbalanced, and she also denied seeing the gap and hesitating before crossing.[30]
[30] T73

bb. She agreed that Brenda had addressed the choir prior to the rehearsal but did not recall any warnings about uneven surfaces. There was no mention of any gaps.[31]
[31] T74

cc. She agreed that Brenda might have spoken to the choir at the rehearsal on Monday 19 March but could not recall exactly what she said.[32]
[32] T78

dd. The rehearsal commenced at 7:00 pm and finished at about 8:15pm She had called her son at 8:30pm to come and collect her after she had fallen.[33]

ee. There was no safety warning at the interval on rehearsal night.[34]

ff. She did not recall Rohan Grigg speaking to the choir prior to the rehearsal at all.[35]

[33] T85

[34] Ibid

[35] T92

15. Barbara Inglis is a retired biologist who was called in the plaintiff’s case. Her answers were straight forward and she answered confidently. She impressed the Court as an honest witness who struggled to remember some details about the matter. Key aspects of her evidence were that she:

a. Had sung with the defendant for 30-40 years.[36]
[36] T95

b. Arranged the seating plan for the choristers.[37]
[37] Ibid

c. Denied meeting with her husband John, Rowan Grigg and Brenda Gill prior to 24 March 2018 to discuss filling the gutter gaps[38]. Denied that the same four people discussed safety issues.[39]
[38] T99
[39] T101

d. Was never present for any discussion with Brenda and Rohan in relation to risks of slipping on tiles, changes in levels caused by risers being a hazard, risers being a potential trip hazard or risk of injury[40]
[40] T100

e. Was not involved in the planning of the risers.[41]
[41] Ibid

f. Agreed that Brenda Gill was present for the setup of the rehearsal[42] and that the plaintiff was not present when the risers were assembled on 23 March.[43]

g. Did not remember any warning being provided to the choir before going on stage by Brenda Gill or Rowan Grigg on 23 March 2018.[44]

h. Knew that the plaintiff had fallen during the break in the rehearsal but did not see her fall.[45]

[42] T100

[43] T101

[44] T102

[45] T102

16. In cross-examination Ms Inglis was able to remember little about her own route across the risers to her position on the left side of the stage. Important aspects of her evidence in cross-examination were that she:

i. Remembered Brenda speaking to the choir at the rehearsal on 19 March but could not remember what Brenda said.[46]
[46] T108

j. Was setting up the chairs and her husband John set up the risers during the afternoon of the rehearsal.[47]

k. Was not aware of the defendant ever using a professional to set up stages.[48]

l. Was adamant that the choristers needed to all enter from the right side of the altar and that entry from the left would have been ‘tricky’.[49]

[47] Ibid

[48] T109

[49] T110-T111

17. Jean Mary Gray is a retired psychologist who was called by the plaintiff. She impressed that Court as a truthful witness who possessed a reliable recall of the actual fall. Her memory of peripheral events was not strong. She:

a. Was present at the rehearsal on 23 March 2018.[50]
[50] T113

b. Was positioned on the left side of the stage with a gutter gap ‘right beside’ her on her left.[51]
[51] Ibid T114

c. Agreed that the gutter gap was a risk and had been worried about inadvertently stepping into it and breaking an ankle whilst singing and watching the conductor.[52]

d. Was sitting sideways on her chair when she saw the plaintiff fall. She saw Margaret walk towards the vestry side and topple to the left and through the curtain. She had been walking steadily and strongly and there was nothing to break her fall when she fell.[53]

e. Did not recall any warnings being given but thought that a lady named Brenda Gill had given instructions and explanation about where to get on and off and about toilets and ‘all that sort of thing’.[54]

[52] T114

[53] T115

[54] Ibid

18. Important aspects of the cross-examination of Ms Inglis were that she:

f. Had swapped places with Ruth Green and moved next to the gutter gap.[55]
[55] T116-117

g. Was not sure of the exact route that she had taken to her position.[56]

h. Did not see the cause of Margaret’s fall.[57]

Did not remember a man addressing the choir prior to the rehearsal and did not have any recall of what was said to the choir beforehand.[58]
[56] T117.
[57] T118
[58] Ibid

19. In re-examination Ms Inglis told the court that the choir did not file onto the stage for the rehearsal – rather that the choir was milling in and finding their seats.[59]

[59] T120-121

20. Judith Evans, a retired librarian was called by the plaintiff. She left an impression of intelligent calmness and was both an engaged and engaging witness. I formed the view that she was truthful and reliable on all but for her recall on the angles and positions of the risers. Ms Evans told the court that she:

a.Has been singing for 70 years and singing with the defendant for 43 years.[60]
b.Had to use her walking stick to put into a gap between two risers to cross them. She had never negotiated such a gap in the previous 70 years of singing in choirs.[61]
c.Found the gap quite dangerous, however wouldn’t have found it quite as dangerous 40 years ago.[62]
d.Raised the fact of her age and walking stick on the night and was moved on the seating plan. Despite this she still had to negotiate a gap.[63]
[60] T143
[61] T145
[62] T147
[63] Ibid

21. The important aspects of Ms Evans’ cross-examination were that she:

e.Thought that the risers caused a triangular gap and that one of the risers was at an angle at one end.[64]
f.Did not have a memory of having to cross the altar at all.[65]
[64] T148
[65] Ibid

22. Vanessa Hooley, nanny and Christian prayer minister was called by the defendant. She listened carefully before answering with care. I formed the view that she was somewhat partial to the plaintiff’s case but that she, nonetheless, maintained truthfulness and was reliable. Ms Hooley told the court that she:

a.Had been singing in choirs from the age of 12 and was now 26.[66]
[66] T151
b.Did not go to dinner at Belluci’s and had arrived about 10 minutes early to obtain parking.[67]
[67] Ibid
c.Was in a line up in rows in the crypt underneath the cathedral and they walked in in single file.[68]
[68] Ibid
d.Did not remember an official statement to the choral group, but members of the choir were muttering about ‘Don’t step in the gutter’.[69]
[69] T152
e.Thought that Brenda Gill had given a general warning prior to the rehearsal about being aware and careful footing and a brief warning about the gutter around the stage risers.[70]
[70] T153
f.Remembered that there were quiet exclamations amongst the choristers as the encountered the terrain. She thought that it was an accident waiting to happen and made that comment to one of her neighbours.[71]
g.Told the court that it was the most unsafe staging situation that she had encountered.[72]
h.At the break saw the plaintiff walk towards the crypt, step past the gutter, walk next to the gutter behind the altar and stumble into the final gutter between her and the crypt entrance. She saw the plaintiff start to fall and try to catch herself on one of the projectors screens, but it didn’t support her weight and it looked like she fell face first.[73]

The plaintiff had been walking slowly steadily and carefully and not leaping or bounding to where she was going.[74]

j.Had herself stood in one of the gutters accidentally and her foot swung over another gutter on another occasion.[75]
k.Observed jolting movements where other choristers had nearly stood in the gutter.[76]
[71] Ibid
[72] Ibid
[73] T155
[74] Ibid
[75] T156
[76] Ibid

23. The important aspects of Ms Hooley’s cross examination were that she:

l.Agreed that she did not withdraw from the rehearsal despite her concerns about safety.[77]
m.Agreed that she participated in the performance the following night and did not raise concerns with event organisers on either night.[78]
n.Agreed that the plaintiff may well have heard the muttering about the gutters when moving onto the stage.[79]
o.Agreed that she initially watched the plaintiff out of the corner of her eye and her vision turned because of Margaret’s movement.[80]
p.Denied that she had attempted to paint a picture of chaos.[81]
[77] T157
[78] Ibid
[79] Ibid
[80] T159
[81] T161

24. Peta Gould, retired community nurse, was called by the plaintiff. She gave short and straight forward evidence within the limits of her memory. I found her to be truthful and reliable about what she did remember. She told the court that she:

a.Was visiting chorister who attended the rehearsal on 23 March 2018.[82]
b.Did not have a vivid recall of the stage but did remember gaps between some of the risers. She had to step up onto risers and onto the floor and up onto risers again. She thought that it was particularly difficult.[83]
c.Told the court that the gaps were more difficult on the performance night due to wearing smart black clothes.[84]
d.Did not recall a warning to the choir in relation to the gutters.[85]
e.Did not see the plaintiff fall.[86]
[82] T162
[83] T163
[84] T164
[85] Ibid
[86] Ibid

The important aspect of Mrs Gould’s cross-examination was that she could recall an earlier rehearsal at St John’s Hall and that her memory was no better in relation to that occasion.[87]
[87] T166

Heather Hodgson, calligrapher and mother of four was called by the plaintiff. She gave brief uncontentious evidence to the effect that she:

a.Organised the dinner at Belluci’s that took place prior to the rehearsal. That dinner started at 5.15 and concluded at about 6.45 before the 7.00 rehearsal. The plaintiff attended dinner at Belluci’s.[88]
b.Did not recall the risers as she was in the front row of the choir.[89]

c.Did not recall a specific warning to the choir.[90]
[88] T167
[89] Ibid
[90] T168

Charles McIntosh, teacher and son of the plaintiff was called by the plaintiff. He gave generally uncontentious evidence about assistance provided to his mother after her fall. He was not an overt barracker for the plaintiff’s action – rather he calmly set out his observations on her post injury treatment, recovery and assistance provided. I found him to be truthful and reliable. He told the court that he:

a.Was not living with his mother as of March 2018 and the bulk of the support was provided by his brother James who was living with the plaintiff at the time.[91]
b.Provided occasional support whilst his brother remained living with his mother for a few months after her fall.[92]
c.After his brother moved out this witness took on more of a support role.[93]
d.Provided home maintenance and garden maintenance, but not day to day living type arrangements.[94]
e.Noted the most notable difference after her fall was the amount of regular maintenance of the home that the plaintiff was no longer able to do. These included fixing irrigation systems, moving furniture, pruning bushes and hanging a picture on a wall.[95]
f.Noted a difference in the scale of things that his mother took on herself as her wrist and knee had particularly bothered her. She would no longer use a step ladder and was recently not able fix an irrigation piece that she would previously have fixed.[96]
g.The best estimate of his time assisting his mother was an hour per week.[97]
h.Saw a clear difference between his mother’s ability between each knee to conduct rehabilitation exercises such as stepping up on boxes.
[91] T179
[92] Ibid
[93] Ibid
[94] T180
[95] Ibid
[96] T181
[97] Ibid

Mr Charles McIntosh told the court the following relevant things in cross-examination. He:

Was very willing to help his 71 year old mother with house and garden maintenance.[98]

j.Agreed that his role with his mother had shifted from renovation to routine maintenance.[99]
k.Agreed that his most recent role was in laying some bricks for his mother a couple to three weeks ago.[100]

[98] Ibid

[99] T182

[100] T183

Mr James Mcintosh, project manager, was called by the plaintiff. He presented in a similar way to his brother. He was not inclined to exaggerate and I formed the view that he was a reliable and truthful historian. He told the court that:

a. He and his wife and son were living with his mother, the plaintiff, for six months in 2018 whilst they renovated.[101]
[101] T214-T215

b. His son would have been aged about two at the time.[102]
[102] T215

c. The plaintiff was injured about two weeks after they had moved in with her.[103]
[103] Ibid

d. Prior to her being injured he recalled her having no difficulties with domestic tasks.[104]
[104] Ibid

e. She had also spent about eight to ten hours a week looking after his son.[105]
[105] Ibid

f. He had taken his mother to hospital on 23 March 2018. She was in shock and quite upset and was holding her arm and left side.[106] He thought that she had fallen on her side and hurt her hip and knee.
[106] T216

g. For some months, he provided six or seven hours per week of domestic assistance for dressing, food preparation and tidying the house and driving her to appointments.[107]
[107] T217

h. During that time, he and his wife did all the assistance for their son.[108]
[108] Ibid

i. After two months the plaintiff was not able to help to the same extent with his son as she could not him, pick him up, put him down or change nappies due to her arm and shoulder.[109]
[109] T218

j. After his mother had improved, he was still provided a few hours per month or maybe an hour a week to assist her. Every fortnight he would be there for two hours helping with gardening and moving things around.[110]

k. Observed that the plaintiff Is not able to lift her arm much without it causing a lot of pain. Her left side and particularly her shoulder is causing her pain.[111]

l. Was not sure if her wrist or knee were still affecting her.

[110] T219

[111] T219-220

The important aspects of Mr James McIntosh’ cross-examination was that he:

m. Was aware that the plaintiff had arthritis in the past but not aware of problems in her left knee and shoulder prior to March 2018.[112]
[112] T220

n. Said that the major source of his mother’s pain was her left shoulder.[113]
[113] Ibid

o. Said that his mother’s right shoulder was the source of some pain for her.[114]

p. Observed her difficulties are principally related to her left shoulder.[115]

q. Would assist his mother with things she required assistance with given that she was aged 71.

Defendant’s witness evidence

[114] Ibid

[115] Ibid

Dr Brenda Gill, medical practitioner, was interposed into the plaintiff’s case and called by the defendant. There were aspects of her evidence that gave rise to deep concerns about her reliability and a very real sense of post-accident reconstruction around decision making and risk assessment. Her evidence on the (lack of) risk posed by the gutter gaps was incongruent with commons sense and life experience. This witness did not perform well under a cross-examination. There was an immediate change in the nature of her giving evidence between the two examinations. Ultimately she accepted that many aspects of her evidence in chief were incorrect and inconsistent with a statement made closer to the incident. The overall conclusion I formed about her evidence was that if a more reliable witness gave contrary evidence on any topic, then that evidence should be preferred.

Dr Gill told the court that she:

a.Had been the immediate past president to the plaintiff and had served in that role for seven years.[116]
[116] T121
b.Was part of the decision after a rehearsal on 05 March 2018 that risers would be required at St Christopher’s. This was to enable the choristers at the rear of the choir to see the conductor.[117]
[117] T123
c.Asked Rowan and John and Barbara Inglis to put their minds to organising the risers.[118]
[118] Ibid
d.Told the choristers assembled on 05 March and 19 March that care needed to be taken with slippery, very hard surfaces to wear sensible shoes and take the time when negotiating because there was a lot of and steps and levels that needed to be crossed.[119]
[119] T124
e.Did not know if there was a paper copy of the rolls taken on both of those nights.[120]
[120] Ibid
f.Left the setup of the risers to the Inglis’ and Rowan Grigg.[121]
[121] Ibid
g.Thought it was common for the defendant to use risers at venues if there was a depth of choristers that were not performing on steps.[122]
[122] Ibid
h.Saw the risers for the first time in situ when she arrived at about 6.45.[123] She saw and had expected to see the gutter gaps dues to the layout at Str Christophers’ with the step leading up to the altar. She had no concerns about the gutter gaps.[124]
[123] Ibid
[124] T125

Had emailed Barbara Inglis regarding levels and being required to step up and down but could be no more specific.[125]
[125] Ibid

j.Spoke to the choir before the rehearsal. “Barbara had everyone ready to go on. I believe I did. I believe I told everyone ‘It’s time to go on. Move slowly and take your time’”[126]
[126] Ibid
k.Thought that egress from the left of the stage could have been provided, but those choristers would have had to move around the outside of the church in the dark. She also thought that the weather was wet. The choir always assembled together, and the bags were locked away safely in the crypt area on the right: [127]
[127] T126
“Or they would have had to have walked as we asked them to, across, behind the – where the altar sits over the platform that it sits on and then enter from the side that way”[128]
[128] Ibid
l.Would not have used the chapel on the left side for egress to the stage as it was being used to store the instrument cases for the orchestra. The space between the pews and the steps up to the sanctuary was taken up with music stands and chairs. The junior choir was assembling in the front area which caused further congestion.[129]
[129] T126.
m.Had prepared the seating plan and Barbara Inglis had placed the arrows on it to form an access plan.[130]
[130] T127
n.Had no concerns about the access for choristers on the far side of the stage.
o.Was then asked by counsel for the defendant:
“And why did you not have any concerns? ---I thought that each step that was required to be taken was well lit, was obvious and was just a normal 15- or 20-centimetre step, and that it was the sort of hazard that one would expect to encounter in any built area.

HIS HONOUR: In any – what area? ---built-up area

Built area? ---So---

Thank you? ---I’m just looking at a step right there. There are steps everywhere.”[131]

(I pause to note for any reader who has not been into any of the hearing courts in this Court that the steps to the witness boxes have tubular stainless steel railings on both sides of the steps. There are no other steps inside the courtrooms or visible from the witness box. There are no gutter gaps before or after the steps to the witness box.)
p.Did not expect that choristers would cross the gutter gaps. They were to come in from the back along the gutter.[132]
q.Did not have any discussions about filling the gutter gaps. She gratuitously offered an opinion that filling in the gaps would have caused a hazard as there would have been a 5-centimetre sloping section due to the differences in levels.[133]
r.Had a discussion with one of the Inglis’ and formed the conclusion that the gap was an acceptable hazard.
s.Told the court that the only change between the rehearsal and performance was to move the screens from the floor behind the risers to the rear of the risers behind the choristers.[134]
t.Did not see the plaintiff fall.
[131] Ibid L 27-36
[132] T127
[133] Ibid and T128
[134] T128

Important aspects of Dr Gill’s cross-examination were that she:

u.Did not know whether the plaintiff came into the cathedral at 5.00pm on the night of the rehearsal as she did not get to St Christopher’s herself before 6.45pm the same evening.[135]
[135] T133

Arrived at the cathedral and the risers were in place and that she did not have any discussions about the safety of the risers before the rehearsal or earlier that afternoon.[136]
[136] Ibid and P 134

w.Did not recall ever having a conversation about hazards and risk and injury when the plaintiff was present.[137]
[137] T135

Did have a discussion with the plaintiff about potential risk with placement of chairs sometime in the week leading up to the concert.[138]
[138] Ibid

y.Spoke to the whole of the choir before the rehearsal began and told then to move slowly and carefully but did not tell them which routes to take.[139]
[139] Ibid and T136
z.Agreed that there was no wall between the chapel and the left of the altar and that 30-40 and up to 50 people could fit in that chapel and that bags and musical instruments could have been left on the pews.[140]
[140] T137
aa.Told the court that there were spaces required to assemble the orchestra, the youth choir and the whole choir. She agreed that the choir could have assembled in the groups that it was split into but that it was habitual to warm up together and have last minute notes together.[141]
[141] Ibid
bb.Was not aware that the risers came with two sets of 30-centimetre steps and two sets of 60-centimetre steps. Steps were not used on the right side of the altar.[142]
[142] 138
cc.Was not aware that the plaintiff was correctly referred to as Lady McIntosh.[143]
[143] T189.
dd.Agreed that the defendant could have chosen to get a professional to install the risers.[144]
[144] T191
ee.Agreed that the defendant was supplied with two sets of step attachments for the risers.[145]
[145] T196
ff.Agreed that by email from her to the plaintiff on 22 March 2018 she had said “I am happy to be the nominal stage manager, but Barb is definitely in charge of the stage movements”.[146]
[146] T197
gg.Agreed that in the email she was telling the plaintiff that the witness was running the show and not to worry about the technical details.[147]
[147] Ibid
hh.Agreed that the plaintiff had not been involved in sub-committee decisions and discissions about safety, hazards and setup around the altar.[148]
[148] T198

Agreed that there was only 15 minutes between the completion of the setup at 6.45 and the commencement of the rehearsal and that to her knowledge no-one including herself had then carried out a risk assessment in relation to the risers before the rehearsal.[149]
[149] Ibid

jj.Said that she had warned the group to be careful about steps and different levels on a couple of occasions. But agreed that there was never a specific mention of the risers by anyone.[150]
[150] T198-T99
kk.Agreed that the plaintiff was not present for a discussion between the witness and Rohan Grigg about trip risk hazards.[151]
[151] T200

Disagreed that the only topics warned of were toilets, sensible shoes and enjoying oneself.[152]
[152] T201

mm.Agreed that no warning was given about the risers prior to the rehearsal on 23 March.[153] Nobody else from the defendant gave a warning about the risers on the rehearsal night before the plaintiff entered the stage.[154]
[153] Ibid
[154] T202
nn.Agreed that it was not preferred but that the choristers could have entered from the left of the stage.[155]
[155] Ibid
oo.Though that the gutter gaps were hazards that one could observe and see.[156]
[156] Ibid
pp.Did not expect that any choristers would have to cross the gutter gaps to get to their positions.[157] They had planned so that the gaps would not be crossed.[158]
[157] Ibid
[158] Ibid
qq.Was surprised and disappointed to be told that choristers crossed the gutter gaps to get to their positions.[159]
[159] T203
rr.Agreed that a after the plaintiff was injured a warning was sent out on the next day and it would have been of great assistance to have sonneting like that sent out to the choristers before the 23^rd.[160]
[160] Ibid
ss.Regarded the gutter gap as an acceptable hazard.[161]
[161] Ibid
tt.Said that the plaintiff was involved in the decision making with respect to the setup at St Christopher’s based on her being on the committee and information being shared at the committee level.[162]
[162] Ibid
uu.Agreed that the plaintiff was not involved in the decision making but was involved in being informed and given an opportunity to ask questions and pose thoughts.[163]
[163] T204
vv.Agreed that the plaintiff was not involved at all in the decision making for the setup at St Christopher’s.[164]
[164] Ibid
ww.Agreed that the plaintiff was not involved in the decision making to use or to procure the risers.[165]
[165] Ibid
xx.Agreed that the plaintiff was not involved in the positioning of the risers.[166]
[166] Ibid
yy.Said that it was not the plaintiff’s role to be involved in identifying any foreseeable risks involved in using the risers.[167]
[167] Ibid
zz.Agreed that she, the Inglises and Rowan considered that filling the gap between the risers and the altar would have left a dangerous 56-millimetre lip.[168]
[168] Ibid
aaa.Agreed that that lip would have been a trip hazard.[169]
[169] T205
bbb.Agreed that an alternative sloping section (between the risers and the altar) would have caused a scuff hazard.[170]
[170] Ibid

Said that the plaintiff had reported to her about the safety aspects of choristers sitting on chairs on the steps.[171]
[171] Ibid
Agreed that in a previous written statement that she had said that the plaintiff was present at the first rehearsal and was involved in a discussion about the risers and that that was false.[172]
[172] T209

eee.Said that her statement was correct when it stated the at the plaintiff delegated decisions to the stage team regarding sourcing suitable risers:
“She delegated. I delegated. She delegated me. I delegated others. I believe that it can be construed to be correct.”[173]
fff.Then, when pressed, agreed that the plaintiff did not delegate decisions regarding sourcing risers.[174]
ggg.Agreed that her memory of not attending before 6.45pm appeared to be inaccurate.[175]
hhh.Agreed that her statement said that “The risers presented as one of the potential trip hazards from changes in levels.”[176]

Admitted that the statement should be preferred (to her evidence).[177]

jjj.Agreed that her statement said that “I discussed the hazards and risk of injury with Rowan Grigg, Barbara and John Inglis” and that this was contrary to her earlier evidence.[178] She then apologised and agreed that she must have spoken to them.[179]
kkk.Agreed that she had sworn interrogatories.
[173] Ibid L 20-21
[174] T209
[175] T210
[176] Ibid
[177] T211
[178] Ibid
[179] Ibid

In re-examination Dr Gill:

Said that the defendant did not obtain a professional to set up the stage because the choir had the expertise to set up the risers.[180]
Said that a professional stage organiser was only ever used when it had been part of the contract with the venue.[181]

nnn.Offered inadmissible opinion evidence about her life experience with risk assessment. The agreed that she had experience with risk assessments in her practice as a medical practitioner.
[180] T212
[181] Ibid

Bronwyn Clarke, Chief Executive Officer of a professional organisation, was called by the defendant. As will be seen, this witnesses credibility and reliability did not survive the test of cross-examination due to significant prior inconsistent statements. As a consequence, I found that her evidence in chief was not capable of being accepted. Ms Clarke told the court that she:

a.Was the secretary of the committee of the defendant in 2017 and 2018.[182]
b.Explained how the committee split and conducted the tasks of the defendant.[183]
c.Was not involved in the set-up at St Christophers’.[184]
d.Arrived late for the rehearsal and it had already started. She used the seating plan to find her seat which was on the right side of the choir.[185]
e.Saw the plaintiff in the lead up to her fall:
“She was coming across from the other side and coming quite briskly across towards the area I was sitting in, and I saw her sort of hesitate at the gap, because there was a gap in front, and she jumped over the gap…And she lost her footing and she just put her hand out, but she just kept going. There was a screen behind us that was just fabric and she sort of landed in there.”[186]
f.Recalled that they were told to wear good shoes, that there were uneven surfaces and to be very careful about where they went however could not remember when that instruction was given She was reminded by counsel that it could not have been on the night of the rehearsal as she had arrived late. She had worn comfortable shoes so that she didn’t slip on the marble.
[182] T170
[183] T170-T171
[184] T171
[185] Ibid
[186] Ibid L24-35

The important aspects of Ms Clarke’s cross-examination were that she:

g.Was not able to say whether anything was said to the choristers before the rehearsal.[187]
[187] T174
h.Saw the plaintiff hesitate and jump over the gap.[188]
[188] Ibid

Agreed that it was not a running jump and could not see if it was with two feet.[189]
[189] Ibid

j.Did not see her step towards the back row of choristers, she hesitated and tried to jump.[190]

[190] Ibid
k.Did not see her step over one of the gaps and lose her footing. She did see her lose her footing once she’d jumped.[191]
[191] T175
l.Told the court that when the plaintiff landed, she lost her footing.[192]
[192] Ibid
m.Agreed that her memory was probably better on 25 March 2018.[193]
[193] Ibid
n.Agreed that she had prepared an incident report for insurance.[194]
o.Agreed that she had done her honest best to accurately recall what she observed at the time of that report.[195]
p.Agreed that she wrote the following in the insurance report in March 2018:
“At the break in rehearsal on Friday one of the choristers, Margaret McIntosh needed to speak to other members of the choir and headed over to the…second area of the staged area. In doing this she needed to navigate across one of the uneven flooring sections. In stepping towards the back row of choristers, Margaret stepped over one of the gaps between the marble and the riser, lost her footing and tripped. She was facing towards the back of the church and fell towards a hanging soft screen, putting her left hand out to break her fall. She landed hard on the riser and took the weight of the fall on her left arm and wrist.”[196]
q.Denied trying to assist the defendant by exaggerating her earlier evidence.[197]
r.Denied that her report was substantially different to her earlier evidence and that both versions were consistent.[198]
s.Did not take the opportunity to redeem some credibility and accept that her statement should be preferred over her evidence in chief.[199]

[194] Ibid

[195] T176

[196] T177 L 2-14

[197] T177

[198] Ibid

[199] T178

Rohan Grigg, IT consultant, was called as the final witness for the defendant. He endured a relatively abrasive cross-examination that showed significant flaws in his memory and reliability. He was cross-examined on a prior inconsistent statement and the defendant sought to tender the whole document. Written submissions were received on the tender. Notwithstanding the plaintiff’s submissions, in my view to fairly consider the cross-examination the whole of the document should be tendered. The did not assist me in any great way – the inconsistencies were glaring and on important topics. Mr Grigg told the court that he:

a. Has been a member of the defendant since 2006, past treasurer and is the current president. [200]
[200] T223

b. Planning commenced about two months prior to the performance of St Matthew Passion. As the treasurer he was involved in the budgeting, stage preparation and considerations around the stage. As a committee member he was involved in the preparations for the concert.[201]
[201] T224

c. Described the plaintiff as an onlooker in the committee meetings who had participated in meetings that they had in planning.[202]
[202] Ibid

d. Was not involved in the hire agreement for the church. Was aware that the society was asked to take particular care around the sanctuary and to not use the chapel area on the left-hand side.[203]
[203] T225

e. That at the initial rehearsal the choristers at the back could not see the conductor. He and John Inlglis went and looked at risers suitable for a difficult space to elevate the choir.[204]
[204] Ibid

f. That the defendant did not own risers due to the expense and the lack of storage space for them.[205]
[205] T225

g. That for this performance there was a requirement for two choirs singing different parts.[206]
[206] T226

h. That there was not a direct height correlation between the risers and one of the marble steps. It was clear that there was about a 400-millimetre-wide gutter. There was no way of changing the riser height, as they could not (physically) be placed over the gutter and had to butt up against the next (step) tread along.[207]
[207] Ibid

i. That the risers were delivered on eth afternoon of the rehearsal and that he arrived at about 5.00pm.[208]
[208] T227

j. He did not go to dinner to Belluci’s however had a conversation with the plaintiff prior to the rehearsal where she asked if the setup had gone according to plan. He advised her that it had.[209]
[209] T227 - T228

k. He must have walked around and assessed the area after 5.00 pm. The only real concern that he had was the gutter.[210]
[210] T228

l. They had considered filling the gap, but it would have been prohibitively expensive and would have been hazardous by causing a slope. It was decided to alert people to the gutter and for him advised people to step into it into and out of the gutter in his briefing.[211]
[211] T229

m. He gave his briefing at 6.30pm, he was aware that some of the choristers went to Beluci’s for dinner and there seemed to be everyone present. Everyone had been instructed by email to be assembled at the pews at 6.30pm.[212]
[212] Ibid

n. He couldn’t see anyone missing but did not make an assessment. There was about 70 people and no rollcall.[213]
[213] T230

o. He said that the utmost care needed to be taken when moving in the sanctuary area, pointing out the gutters and that care needs to be taken in that area and to step in and out of the gutters. People were told not to rush to the sanctuary and start climbing up to their positions.[214]
[214] Ibid

p. Was positioned in the orchestra area in front of the pews when Margaret fell. She came from the left-hand side of the altar, past the front of the altar and across on the right-hand side.[215]
[215] T231

q. He said:

“See the picture I have which I recall quite clearly, is that she approached the gutter and basically hesitated and looked at it and stepped across the entire width of the gutter and then made her way onto the riser. So, she – she basically came towards where the gutter is, hesitated, stepped across and – and then brought her other leg across and then seemed to lose her balance and fell across the riser and into a projection screen that was set up on the right-hand side, that was being set up.”[216]
[216] Ibid L15-22

r. There was no change to the stage or projector screen between the rehearsal and performance[217].
[217] T231

s. That the defendant did not use professional stage erectors and that John Inglis was always the stage manager (in response to a proposition that a professional manager should have been used).

t. That a smaller step onto the riser would not have helped. Temporary steps were not collected or used for accessing the risers.[218]
[218] T232

u. The steps that were available were not appropriate as they were two level, and they would have had to step down onto the riser.[219]
[219] T233

v. In relation to a professional risk assessment, it was said that one had never been done before and that there was no particular risk that required one. Further that, the defendant was an amateur organisation with a small budget that made a loss on the performance.[220]
[220] Ibid

w. When asked if people should have been placed next to each gutter to warn the choristers agreed that it was something that might have been considered.[221]
[221] Ibid

x. When asked if risers should not have been used, he answered that they were a very good solution and that most people were quite comfortable with them.[222]
[222] Ibid

aa. When asked if another venue should have been used, he replied that they did not consider another venue and that the conductor was very comfortable in the cathedral.[223]

bb. That they required a minimum of 70-80 choristers for the two choirs.[224]

cc. That the performance would have been seriously degraded if the choristers were on ground level.[225]

[223] Ibid

[224] T234

[225] Ibid

The important aspects of Mr Grigg’s cross-examination were that he:

dd. Did not know the cost of a professional risk assessment.[226]
[226] Ibid

ee. Did not look for any other venue[227]
[227] T235

ff. Agreed that the defendant was offered all the equipment held by the Centre for Christianity and Culture including two sets of 30-centimetre steps and two sets of 60-centimetre steps.[228]
[228] Ibid

gg. Agreed that the steps could have been placed on the left-hand side, so that choristers could mount those steps and go straight up onto the risers.[229]
[229] T236

hh. Disagreed that he had made up evidence about the chapel not being used for entry or exit from the left-hand side.[230]
[230] T237

ii. Agreed that the two choirs could have entered from different sides but that they did not think it was appropriate. [231]
[231] T238

jj. Accepted that he could have been mistaken with some of the evidence that he had given.[232]
[232] Ibid

kk. The embargo on using the chapel on the left was provided verbally and not contained in the written conditions of use of the Cathedral.[233]
[233] Ibid

ll. Agreed that the orchestra did use the chapel but didn’t know if the embargo on chapel use was disobeyed.[234]
[234] T239

mm. Disagreed that the warning that he gave to the choir was on the night of the performance.

nn. Remembered that in his statement he had said that his warning was delivered at 6.00pm but that he thought it was given at 6.30pm. He said that his memory about the time was not certain by the fact that it was given was unequivocal.[235]
[235] T242

oo. That after the plaintiff’s injury there was a briefing and a written warning sent on the 24^th.[236]
[236] Ibid

pp. That all the diners had arrived back from Belluci’s and that everyone was there (when he gave his warning).[237]
[237] Ibid

qq. That the risers were set up by 5.00pm when he arrived.[238]
[238] T243

rr. That the risers were in place when her gave the briefing and that the majority if not one or two stragglers were in place for the briefing.[239]
[239] Ibid

ss. That John Inglis and not Brenda Gill was the nominal stage manager.[240]
[240] T244

tt. Disagreed that he could have easily placed a small piece of timber over the gutter gap.[241]
[241] T244

uu. Agreed that there was no document that said that people were to walk into the gutter to get to their positions.[242]
[242] Ibid

vv. He didn’t think that anyone needed to step across the gutter. (Although I think that he and the cross-examiner were at cross-purposes on this topic)[243]
[243] T245

ww. There was 70 and not 110 in the choir.[244]
[244] T245-T246

xx. Disagreed that the plaintiff was behind the altar when she fell and maintained that she was in front of the altar when she fell.[245]
[245] T246

yy. Agreed that the choir was never told not to cross the gutter gap, they were just told to take care when doing it.[246]
[246] Ibid

zz. The plaintiff did not jump at any stage.[247]
[247] Ibid

aaa. Maintained that the plaintiff was in front of the altar when she fell.[248]
[248] T249

bbb. Maintained that he and the Inglis’ and Brenda Gill did a risk assessment on 23 March 2018. That they went and looked at the difference in height between the risers and the step and at the gap. [249]
[249] T250

ccc. Did not accept that the risers were not installed until 6.45pm.[250]
[250] Ibid

ddd. There was a discussion about the risk or trip and fall hazards in relation to the risers after they were installed.[251]
[251] T251

eee. When confronted with the assertion that Barbara Inglis had given evidence that she was not present for a risk assessment said that she may have been in the background.[252]
[252] T252

fff. He did not have any training about risk assessment and did not know if Barbara or Brenda did, but that life skills could be used by them.[253]
[253] Ibid

ggg. Said that at no stage were the choristers told to walk along the gutter gap.[254]
[254] Ibid

hhh. Agreed that he could not say if the plaintiff was present for his warning on 23 March.[255]
[255] T253

iii. Did not consider that the risers were a trip hazard but were a fall hazard.[256]
[256] T254

jjj. Did not recall any discussion about risk of slipping on the tiled surface.[257]
[257] Ibid

kkk. Agreed that part of his workplace safety statement in relation to the plaintiff being present and involved with the setup of the risers was possibly false because he had been led into giving that evidence.[258]
[258] T256

lll. Did not see the plaintiff when he gave his warning but believed that she was there as after dinner she had asked him how it had all gone.[259]
[259] T257

mmm. Was prepared to accept that the plaintiff had not arrived at the cathedral by 5.00pm [260] Agreed that in his statement said, “Margaret did not trip: she lost her balance and fell”.[261]
[260] T258
[261] T260

nnn. In my response to my questions said that the risers were located to the flanks of the altar and did not extend to run across the front of the altar.[262]He thought that the riser started about one chair back from the baptismal recess.[263]
[262] T261
[263] Ibid

ooo. He agreed with my proposition that the left side choir could have been walked up using the brass handrail in place on the left side of the altar.[264]

ppp. He agreed with my proposition that the screens were a barrier to people getting up onto the risers from the back.[265]

Factual findings

[264] T263

[265] Ibid

I found the following key facts proved on the civil standard:

a. The plaintiff was not involved in the sub-committee that planned the use of the stage risers and knew little about them until she was physically upon them;

b. The risers were finally assembled at about 6.45 pm on 23 March. A perfunctory risk assessment was conducted by Mr Griggs. That assessment confirmed his earlier assessment and knowledge that there would be a gutter gap and the previous decision not to fill or ramp over the gutter gaps;

c. The plaintiff was not present for a warning about the risers that Mr Griggs gave at about 6.30 to the choristers prior to the rehearsal. The plaintiff was at the Belluci’s dinner until 6.45 pm;

d. The plaintiff was present for a basic warning that Dr Gill gave to the group about being careful and there being different levels;

e. The plaintiff safely traversed two gutter gaps prior to the rehearsal commencing on 23 March. The rehearsal stopped at about 8.15 pm and she headed back to the right side of the stage. In doing so she traversed the gutter gap on the left of the stage without incident.

f. The plaintiff did not skip, run, jump or hesitate on her way to the second gutter gap. She approached the second gutter gap on the left hand side of the stage behind the altar. She was looking straight ahead and fell into the gutter gap. She attempted to use the screen to break her fall, but this did not work. She suffered the injuries described in the evidence and was taken to hospital by her son.

Duty of care

Duty of care Is not really in dispute. As occupier of St Christopher’s premises, the defendant was squarely captured by occupiers’ liability created by statute in this jurisdiction.[266]
[266] Civil Law (Wrongs) Act 2002 S 168

41, The defendant set out an accurate rendition of the law relating to duty of care in their written submissions culminating in a final encapsulating submission about the relevant duty of care in this matter:

“The duty of the defendant was, having regard to their function as a small not for profit organisation staffed by volunteers, and with reference to all of information reasonably available to them, to avoid exposing the plaintiff to unnecessary, reasonably foreseeable and not insignificant risks at the time.[267]”
[267] Defendants submissions P10 #23

I accept that proposition. There is no reason in fact or law to find other than proved, on balance that at all times the defendant owed the plaintiff a duty of care in relation to the obstacle as set out by the defendant above.

Breach of duty

The plaintiff puts forward a strong case on breach of duty. I have considered ss 42, 43 and 168 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act), as I must, and make the following observations.

Pretty clearly, the gutter gaps presented a significant risk no matter whether the traverser was to descend into the gutter gap or step across it. There were no immediate handrails, no physical barriers and no human guides to help the choristers traverse the gutter gaps or stop them from doing so. There was nothing physical to warn of the inherent danger other than the gaps themselves. No verbal warning or reminder was given at the interval during the rehearsal. The risers were elevated. If there was a fall it would likely be onto the hard surface of the riser or the hard surfaces of the marble altar. Some of the choristers were of an advanced age and likely to be less steady on their and more frail than the younger members. One used a walking stick. Harm from such a trip or a fall was more than likely to be capable of causing serious injury.

There was great social utility in the performance, but the performance of St Matthew Passion is not inherently risky – it was the use of risers that was the risk.

The defendant chose to erect the risers that caused the gutter gaps. The hazard was obvious and the defendant knew in advance that they were going to create the gutter gap hazards because of the shape of the marble stairs on the altar. This was unreasonable. They had used risers previously. The defendant chose not to take the risers down once they were erected and the hazard was realised. This was unreasonable.

The defendant could have filled the gutter gaps with timber structures or ramps. They knew in advance that the risers would create gutter gaps. There was no expert evidence adduced to support the witness evidence that fillers or a ramp between the risers and steps would have caused a scuff or greater trip hazard. The failure to fill the gaps was unreasonable.

The defendant proceeded with the rehearsal with the risers and gutter gaps in place on 23 March 2018. The defendant organised and required each of the choristers to cross zero, one or two gutter gaps to get to and from allocated positions on the risers. The defendant pre-set those positions for the choir and the plaintiff knowing that there would be risers and gutter gaps.

There were obvious alternative methods of entry and exit onto and off the risers. There was no evidence that pointed to a lack of time to re-organise the route prior to the rehearsal. Or, even once everyone arrived at the rehearsal. The risk represented by the gutter gaps and route across them to the choristers was significant. I can see no reason at law to reduce the defendant’s burden of risk reduction or elimination. The alternative options came at little or no cost at all.

There was evidence that the chapel to the left of the altar was not to be used to egress the stage by direction of the cathedral staff. However, it was clear in the photos and scene view that the choristers could have been directed to egress by stairs from the congregational level with the assistance of brass handrails already in place at the cathedral. No gutter gaps would have been traversed. That would have been reasonable.

The whole or the left half of the choir could have entered and exited from the rear of the risers with projector screens placed just a little rearward of the risers. No gutter gaps would have been traversed. That would have been reasonable.

No effort was made to request a re-consideration of use of the chapel on the left – in f act it was used – for orchestral storage. Egress by the left choir from the left chapel would have meant that no gutter gaps were traversed. That could have been reasonable if permission had been granted.

I find that there really was no reason why any gutter gaps ‘had to’ have been traversed and that a reasonable person would have ensured that no gaps were traversed by using any of the options that I have set out above.

The alternative was to take the risers down and make do with the floor pan of the cathedral without risers. That was also reasonable – if less satisfactory - as it would have involved a loss of view of the conductor for some of the choristers.

The defendant chose a most hazardous route to and from the risers and exposed their members to an unnecessary and unreasonable risk. In my view precautions to avoid the gutter gaps were easily undertaken, avoided much of the risk that the gutter gaps presented and do not simply arise out of hindsight. They were there for the defendant to see well in advance.[268]
[268] Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422

I find that the risk was reasonably forseeable. The gaps were wide and deep. There were two of them. The number of choristers exceeded 70 at least. The age range of the choristers meant that many were likely to be less than sure on their feet. It was as Ms Hooley so accurately put it “an accident waiting to happen”.

In reality, the verbal warning issue is somewhat of a red herring. The plaintiff traversed three gutter gaps before failing to negotiate the fourth. Once seen, the gutter gaps were not a secret, but foreseeable risk did not disappear simply because one or two verbal warnings about risk were given or the hazards were previously seen and successfully crossed.

The defendant criticised the plaintiff for a lack of expert evidence on this topic. I find that the multiplicity, depth and width of the gutter gaps represented such an obvious obstacle that expert evidence on the degree of risk caused by them was superfluous and unnecessary.

Causation

Causation is to be determined in accordance with s 45 and 46 of the CLW Act[269]. Those provisions are short:
[269] Civil Law (Wrongs) Act 2002 s45 and s46

45 General principles

(1) A decision that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’).

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).

(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them—

(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but

(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.

(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

46 Burden of proof in deciding liability for negligence,

The plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Her Honour McWilliam AJ succinctly pointed out in Austen v Tran [2022] ACTSC 114:

“Section 45(1), like s 5D (1) of the Civil Liability Act 2002 (NSW), establishes a “but for” test for causation: Nouri v Australian Capital Territory [2018] ACTSC 275 (upheld on appeal in Nouri v Australian Capital Territory [2020] ACTCA 1), at [421].”

61. The defendant submitted that it was not the riser that caused the fall.[270] Implicitly, if there were no risers then there would have been no gutter gaps and nothing for the plaintiff to fall into. The defendant’s case on causation is weak and defeated by the plaintiff’s strengths on the civil standard.
[270] Defendants’ submissions P16 #33

The defendant submitted that alternative routes of entry would not have stopped the plaintiff walking across the stage to speak to Dr Gill. There was no cross-examination of the plaintiff on this topic and the rule of fairness applies to defeat the submission.

In any event, the weight of the evidence was against this submission. The choristers appeared to have almost sheepishly followed directions given about routes. They were provided maps for routes to follow. Clearly a gaggle of choristers entering the stage was beyond the contemplation of the defendant and contrary to aesthetic filing on and off. There is no realistic basis to suggest that if the choristers were directed to use alternate routes on and off the risers with instructions not to traverse the gutter gaps that these directions would not have been followed.

Contributory negligence

It is the defendant who bear the onus of establishing a plaintiff’s breach of duty and the causal connection between that breach and the harm suffered by the plaintiff.[271] This determination is to be made objectively and independently of the personal idiosyncrasies of the plaintiff.[272]
[271] Defendants’ submissions P18 # 65 and Aitkenhead v Kaufline (No.3) 2014 ACTSC 83 at [25]
[272] Defendants’ submissions P18 # 67 and Joslyn v Berryman [2003] HCA 13 @ [16], [32] and [70]

Pursuant to s102 of the CLW ACT if the Court finds this onus is satisfied then the plaintiff’s damages are to be reduced to a just and equitable extent.

Podreberesek Australian Iron and Steel [1985] HCA 34 at 5 provides guidance:

“The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.”

At paragraph 2.7 of their defence, the defendant pleaded that the plaintiff’s contributory negligence comprised:

i. Failing to keep a proper lookout.
ii. Failing to take reasonable care for her own safety.
iii.Failing to heed the advice of the Defendant’s committee of which she was in charge to move carefully.
iv.Failing to give effect to the warnings that were issued to exercise care when moving around the area.
v.Failing to make alternative suggestions to remove the Gap.

All those grounds are relevant to my consideration of this issue.
I turn to the defendant’s written submissions as to the matters to be considered in relation to Lady McIntosh’s contributory negligence[273]:
[273] Defendants’ submissions P18 # 68
a.She knew that risers were to be used for the performance. I note that there is no evidence that this extended to knowledge of the gutter gaps until the evening of her fall. Nonetheless, I find that these observations are relevant.
b. Her knowledge more generally of the need to exercise care in moving around the stage area and that the setup included some inherently uneven surfaces. I find that these observations are relevant.
c. Her acute knowledge of…the gutter gap based on her traversing the gap only an hour before and the traversing of a similar gap only moments before her fall. I find that these observations are relevant (but for the term acute).
d.Her admission on becoming aware of the gutters prior to her fall, she was in as good a position as anyone to raise concerns about them. I find that these observations are relevant.
e.Her admission that she was not, as she moved across the stage looking at where she placed her feet. I find that these observations are relevant; and
f.Her admissions that her view was unobscured, and the lighting was very good. I find that these observations are relevant.
The gutter gaps presented a significant risk to all the chorists every time that they were traversed. That risk was not reduced dramatically by the above observations and aspects submitted by the defendant that I have accepted.
The defendant case must prove a failure on the part of Lady McIntosh. Forgetting that a hazard is present or not seeing a known hazard is not the same as being negligent – it is the very epitome of the human condition and a unique feature of humanity that requires a duty of care to be continually observed. The absence of suitable reminders about the hazard and the extraordinary risk that it presented remained the operating features.
The defendant has not been able to prove more than inadvertence, inattention or misjudgement on the part of the plaintiff in the face of an extraordinarily dangerous hazard created by the defendant. As such, their contributory negligence claim must therefore fail. If I have erred on this issue, then I after reading the cases set out in both sets of written submissions, I would only have been inclined to award a small reduction in the order of 10% had I allowed the contributory negligence claim.

General Damages

In terms of general damages, the parties are $30,000 apart at $120,000[274] and $90,000 respectively.
[274] Perhaps cheekily submitted to be “at least $120,000” at P 32 #104 of the plaintiff’s submissions.
The plaintiff’s counsel submits that the following factors are of relevance:
a.Displaced fractured wrist, fractured kneecap, permanent aggravation to the left shoulder.
b.Pain, limitation of movement and loss of function, requirement for surgery, multiple Xray, CT and MRI scans, physiotherapy and requirement for assistance.
c.Possibility of further surgery to remove the plate form the left wrist.
d.Requirement to undergo radiocarpal fusion of her left wrist.
e.Accelerated need for a total knee replacement.
f.Requirement to undergo left shoulder arthroplasty.
The plaintiff’s comparable verdicts are of assistance – particularly Hall v Martin [2020] ACTSC 233 and Jennings v Harcourt Management PTY LTD [2018] ASCTSC 33.
The defendant has proposed Macdonald v Mailander [2014] ACTSC 45. The award for general damages in that matter was $80,000 eight years ago.
$120,000 for general damages is reasonable, and, I find, well within an appropriate range in the circumstances. It is appropriate to apportion 50% for the past and 50% for the future.

78.Interest is calculated to be (½ x 4% x 4 years on past portion of $60,000) $4800.
Past Out of Pocket expenses

The defendant has admitted $15,568.66 the following categories for out-of-pocket expenses:
A. medical treatment expenses $13,840
B. Travel $1400.26
C. Medicare $327.80
The further claims are disputed: The plaintiff claims $60 per week for lawn mowing between 1 January 2019 and 30 June 2020 ($4680) and $80 per week from 01 July 2020 to 24 April 2022 (($7360).
The defendant points to page 52 of the transcript as not satisfying the evidentiary burden to allow that remaining claim:
And but for the injury would you be doing that cleaning yourself? ---Some of it, yes.

And the gardening? ---Some of it, and I still do try to do some, yes.

Well, good on you for that. But can you assist us in terms of hours per week that you say, first with gardening, that you can't do it because of the injury on 23 March? ---I think mowing the lawn has become more difficult because it is necessary to push a mower, and things like vacuuming. Although I do try to do that sometimes, it's just that it is much easier if somebody else does it for me.
But if you didn't have the fall, would you have a gardener? ---I possibly would in the summer when it is very hot, and I don't want to be doing – mowing the lawn.

But for the fall would you have a cleaner? ---Possibly, but not as much as I do, no.

If we were to – and this is a lawyer type thing. If were to try and give you a number of hours or minutes per week that you need a gardener for that you would not have because of the fall, are you able to put a time period on it per week? For the gardener, first of all? ---Mowing takes about an hour a week, but it's been more every 10 days recent – more recently.

An hour a week for the gardener? Is that what you - - -? ---Yes.

I find that the claim should be allowed at 75% of the amount sought on the basis that the lawns are and were not done every week. That means that the sum of ($4680 plus $7360 = 12040 X 75%) $9030 is also allowed for mowing.
I allow a total of $24,598.66 for past out of pockets.

Future out of pocket expenses
A.Left shoulder

These claims are disputed by the defendant but for an allowance of a $15,000 buffer for the left shoulder.
There is a claim for $50,000 for a future left shoulder arthroplasty in the future coupled with rehabilitation. This is to be reduced by 35% for the vicissitudes of life.
There was no cross-examination of expert witnesses – the statements of Dr Beer for the plaintiff and Dr Miniter for the defendant were tendered.
Dr Beer examined the plaintiff physically on 05 July 2019. There was noticeable wasting of the left deltoid and a marked difference in range of motion between shoulders on each scale. He opined the following about the plaintiff’s left shoulder:
“Her symptoms became more intrusive and significant after her accident resulting in reduced range of motion and more chronic regular discomfort. She was diagnosed by an MRI scan with significant glenohumeral arthritis and a mild pre-existing rotator cuff tear.”[275]
[275] EX P4 page 339
“With respect to her left shoulder she has sustained a permanent aggravation of her glenohumeral arthritis. This condition at the moment is manageable however in the future she will likely require a left shoulder arthroplasty when inevitable deterioration of this condition occurs.”[276]
[276] Ibid P342
“Her left shoulder aggravation of pre-existing arthritis is a direct result of her injury.”[277]
[277] Ibid
“…she has had an aggravation or worsening of the symptoms of her pre-existing shoulder arthritis which have been significant. She had very few symptoms prior to this and has had a significant deterioration of her symptoms following the incident.”[278]
[278] Ibid
“Ms McIntosh will likely require left shoulder arthroplasty in the future. This may occur within the next ten years. Costs of such surgery including hospitalisation, prosthesis, surgeon and rehabilitation be in the order of $40,000 to $50,000.”[279]
[279] Ibid P343
Professor Miniter examined the plaintiff on 16 February 2021. He found that shoulder range of motion was symmetrical.[280] He opined:
[280] EX P4 P346
“I do not believe that there is evidence that the left shoulder has been injured though there has been no imaging since the fall to determine this.”[281]
[281] Ibid P348
“Future treatment may be required in relation to the left knee. No other future treatment will be required.”[282]
[282] Ibid P350
Dr Beer reassessed Lady McIntosh on 29 July 2021. His physical examination showed a further deterioration in range of motion in her left shoulder. On my reading of his     report, a basic mathematical assessment of his tables the plaintiff’s left shoulder is generally operating at about 50-60% of the usual range of movement and well below the reduced movement range for her right shoulder. Dr Beer opined that:
“(Per injury related diagnosis) Aggravation of pre-existing left glenohumeral arthritis and previous left shoulder rotator cuff tear”[283]
[283] EX P4 P357
“…left shoulder condition has deteriorated with increasing discomfort and a further         reduction in range of motion since my assessment of 2019. Diagnoses are the        same.”[284]
[284] Ibid
“Professor Miniter does not make any comment regarding the injury contribution to the     aggravation of pre-existing left shoulder arthritis. This shoulder arthritis was only         previously mildly symptomatic and did not cause any significant physical impairment.    As per Ms McIntosh’s history and examination findings there appears to have been and       (sic) permanent aggravation caused by the fall. The fall is obviously significant enough           to have caused a fracture to the left distal radius. This would have caused a significant    force to be transmitted through the wrist and into the shoulder. There is enough reason           to expect this caused the subsequent aggravation and permanent worsening of her left           shoulder condition.”[285]
[285] EX P4 P358
The defendant chose not to require Dr Beer for cross-examination. Similarly, the plaintiff did not require Professor Miniter. I find that the plaintiff’s submissions on this           issue have great weight:
a.        The plaintiff did give clear evidence of the injury to her shoulder in the fall.
b.        I have found that she is a witness of truth and reliability.
c.        Prof Miniter did not have access to imaging.
d.        Dr Beer definitely had the last word. It was not cross-examined on and a further report from Prof Miniter was not tendered.
The defendant made the following submission on future out of pocket expenses allowing a buffer of $15,000:
“Based on the medical case for the plaintiff (Dr Beer) only left shoulder surgery is considered likely. The plaintiff is otherwise having no accident-related medication or treatment. In respect of the left shoulder, the evidence of Dr Beer falls short of establishing that the need for surgical intervention sometime within the next 10 years. A consequence of the accident as opposed to underlying arthritis. The progression of arthritis in the right shoulder unrelated to the fall warrants caution in the assessment of the accident-related impact in the left shoulder. An allowance on a buffer only is appropriate.”
This submission is directly negated by the first second report of Dr Beer in the portions that I have repeated above. His second report is very clear on the root of causation for the left shoulder injury. I find it proved on the civil standard and allow the claim. That results in an award of $32,500.

B. Left wrist

The plaintiff claims for a future radiocarpal fusion and associated rehabilitation in the sum of $30,000 deferred for 10 years (multiplied by 0.744) and further reduced by 35 % to account for pre-existing injury and the vicissitudes of life. That equals $14,508.
Dr Beer noted the following on the wrist injury after his initial consultation with Lady         McIntosh:
i.        There was a mild ruction in movement compared to the right wrist.[286]
[286] EX P4 P341
ii.       An Xray dated 26 March 2018 showed “a displaced intraarticular fracture of the    left distal radius”.[287]
[287] Ibid
iii.The plaintiff “went on to have an open reduction and internal fixation of the left      distal radius”[288]
[288] Ibid
iv.“Ms McIntosh has had a relatively good result this far with the left distal radial fracture. She is at increased risk of developing post traumatic arthritis due to the nature of intraarticular fracture which may require treatment in the future.” [289]
[289] EX P4 P342
v.“Her left wrist is at risk of developing posttraumatic arthritis as is nature of all intraarticular distal radial fractures.”[290]
[290] EX P4 P342
vi.“It is not possible to accurately predict the likelihood of arthritic change in the left wrist however she is at significantly increased risk of the left wrist developing arthritis compared to her normal wrist. She may require surgical treatment to this if her arthritis becomes significant in the future. The surgical treatment for radiocarpal arthritis is radiocarpal fusion and the cost of this surgery and rehabilitation would be in the order of $20 to $30,000 if required.”[291]
[291] Ibid P 343
Professor Miniter opined that no further treatment would be required on the wrist. “There is no obvious need to remove the internal fixation from the left wrist.”[292] He noted the following:
[292] Ibd P 350
A.“The well-healed surgical scar at the left wrist on the volar aspect is consistent with internal fixation of the distal radial fracture. The fixation is palpable deep in the wound. The median nerve appears to be normal and there are features of advanced carpometacarpal osteoarthritis of the thumb with loss of the first webspace and marked decrease in the abduction power of the thumb ray.
As far as I could determine, the range of motion of the wrist joint is normal. By this, I mean that it is symmetrical with the contralateral side. Other than this, I could identify no sensory changes and the relationship between the distal radius and the ulna is relatively well preserved. I would agree with Dr Roberts that the distal radioulnar joint is intact and stable.
No other issues are worthy of mention at this point.”[293]
[293] Ibid P 347
B.“There has been a definite injury to the right wrist.”[294]
[294] Ibid P 348
C.“As far as I can determine, there is no obvious need to remove the internal fixation from the left wrist.”[295]
[295] Ibid P 350.

Dr Beer reviewed the plaintiff in July 2021 he did not change his views about the wrist injury.
After reading the submissions of both parties in relation to future out of pockets for the wrist as well as the expert’s reports I have concluded that a buffer of $7,500 – roughly half the claimed amount - is appropriate in circumstances where the expert evidence is candidly imprecise.
C. Left knee
The plaintiff pleaded a claim for $40,000 for a future total left knee replacement and subsequent rehabilitation but did not make final submissions prosecuting that claim. Both parties were subsequently invited by the Court to file submissions on that issue.
After his first assessment of the plaintiff, Dr Beer made the following comments and gave the following opinions about the knee:
a.“With respect to the left knee, an X-Ray was eventually performed showing a non-displaced vertical fracture at the lateral facet of the patella with pre-existing patellar arthritis. The opinion of Dr Aubin, a knee surgeon, was sought, and Ms McIntosh was placed in a range of motion brace for six weeks. She underwent appropriate physiotherapy after this.[296]
[296] ÉX P4 P 339
b.“With respect to the left knee, Ms McIntosh reported that her symptoms have largely returned to her pre-injury level, she reported only minor intermittent symptoms in the left knee which were present prior to her accident.”[297]
[297] Ibid P 340
c.“With respect to the left knee, she had an effusion in the left knee. She could perform squat to 90 degrees of knee flexion. Range of motion was of the right knee was 0 to 140 degrees and left knee 0 to 130 degrees. Her cruciate and collateral ligaments were intact clinically.”[298]
[298] Ibid P 341
d.With respect to left knee no particular report was provided, however there is a clinical letter from Dr Chris Roberts stating an X-ray was taken. This showed a non-displaced longitudinal fracture at the lateral facet of the patella with patellofemoral arthritic change.”[299]
[299] Ibid
e.“She sustained a fracture to her left patella which has united in the presence of pre-existing patellofemoral arthritis…”[300]
[300] Ibid
f.“With respect to the left knee she has sustained a displaced lateral patellar fracture in the presence of pre-existing patellofemoral arthritis. Her symptoms have returned to pre-injury level. Her prognosis is unchanged to this injury.”[301]
[301] Ibid P 342
g.“Left patellar fracture is a direct result of her injury.”[302]
[302] Ibid
Professor Miniter noted the following in relation to the left knee:
A.“About 10 days after the original fall, with the matter having been neglected in the first instance, her left knee was noted to be swollen and increasingly painful. This led to an x-ray which I have seen which demonstrated a fracture of the lateral facet of the patella on eth left hand side. The x-ray also demonstrates clear features of advanced osteoarthritis of the patellofemoral joint on that side. The remainder of the knee appears to be in good condition.”
B.“She has returned to playing golf which she does at Duntroon. She tells me that she (sic) walks and has no major issues with her knee except when she is squatting or crouching. She has not sought further attention in relation to her “knee.”[303]
[303] Ibid P 346
C.“There is a direct causal relationship between the incident and her current disabilities in relation particularly to the left knee.”[304]
[304] Ibid P 348
D.“The condition suffered by the plaintiff does relate to the incident entirely in relation to the left wrist and in part in relation to the left knee. There is clear evidence of previous issues at the left knee.”[305]
[305] Ibid
E.“There is permanent physical damage. This relates to patella on the left-hand side and I do believe that this has compromised the function of her left knee in the long term. Whilst she has little discomfort at this stage, it is not unreasonable to suggest that the fall in question may have accelerated the development of osteoarthritic change and the subsequent need for total knee replacement. Only time will tell but at this stage she is not seeking any treatment and has little pain.”[306]
[306] Ibid P 349
F.“Future treatment may be required in relation to the left knee…No further surgical treatment is needed at this stage. No other management is necessary.”[307]
[307] Ibid P 350
Upon the Plaintiff’s second consultation with Dr Beer the following was noted by him:
i.         “Ms McIntosh reported that she has intermittent minor symptoms in the anterior               aspect of the left knee. She reported that these have essentially returned to   their pre-injury level.”[308]
[308] Ibid P 355
ii.         He observed a continuing reduction in flexion movement of the left knee only                  compared to the normal 140-degree movement – 130 degrees.[309]
[309] Ibid P 356
I          ”She does not currently require any treatment at this stage for the wrist, left   shoulder or the knee.”[310]
[310] Ibid P 358
Ultimately the plaintiff sought a buffer of $10,000. The defendant submitted that no future out of pockets should be allowed for the knee and cited a failure to require Professor Miniter for cross-examination. Both relied on Malec v Hutton Pty Ltd (1990) 169 CLR 638.
It is my view that on the defendant’s expert’s own evidence there is a proper basis to allow a buffer. Cross-examination was not required. The $10,000 submitted is reasonable given Professor Miniter’s opinion on osteoarthritic change and the potential requirement for a knee replacement. I allow a $10,000 buffer for future out of pocket expenses for the left knee.
D. Ongoing medical care
The plaintiff pleaded a buffer claim of $5000 for reviews by her general practitioner, analgesia and care by other professionals. This figure represents less than $300 per year and less than $6 per week if the life expectancy tables are accurate. No contrary submission was made by the defendant other than one suggesting an overall buffer of $15,000 be awarded.
It is clear on the expert evidence that there is significant potential for arthritic degeneration from the injuries suffered. It is not unrealistic to allow such a small amount to cover analgesic relief and general practitioner consultations. I find that this is a modest claim that is proved to the civil standard. I allow it.
E. Future gardening
The plaintiff pleaded a claim of $19,408. comprising $80 per week for 5 years or 242.6 weeks. No contrary submission was made by the defendant other than one suggesting an overall buffer of $15,000 be awarded.
Going by the evidence it would appear the lawns are not mowed each week. The litigation tables indicate that the plaintiff has a statistical life expectancy of a further 18.21 years. A traditional calculation even at $60 per week ($80 X 75%) for 18 years using the 728 multipliers on the 3% tables, less 15 % for the vicissitudes of life would amount to $37,128.
The modest claim of $19,408 is more than reasonable - I allow it.
F. Past domestic services
The plaintiff pleaded a claim of $9270 being 206 hours at $45 per hour comprised as follows:
a.        42 hours of driving assistance between 23 March 2018 and 14 May 2020.
b.        14 hours per week of domestic assistance for six weeks following her fall (84                  hours).
c.        Two hours per week for gardening assistance between 23 March 2018 to 31        December 2018 about 40 weeks (80 hours).
In closing submissions this changed to $24,072 being 472 hours at $51 per hour:
d.160 hours being 10 hours per week for 16 weeks for care she could no longer provide for her grandson Hugo.
e.112 hours being seven hours per week for 16 weeks for driving, self-care, preparing food and house tidying
f. 200 hours of gratuitous care provided being one hour per week from about July 2018 onwards.

111, The defendant submitted that an appropriate formulation was $10,980 being six hours per week for the initial six-week period and then one hour per week thereafter for 208 weeks. This amounts to 244 hours at $45 per hour.

Thus, the parties are well apart. I do not see how the claim for the forfeited childcare has come into the litigation. It has not ever been the subject of pleadings and there was little evidence on the topic. I refuse it.
Further, there is no evidentiary basis for the $51 per hour amount. for the plaintiff’s Griffiths v Kerkemeyer [1977] HCA 45 claims[311]. The Court would expect there to be some type of evidence for there to be a further increase in the ‘usual’ amount of $45 per hour for domestic assistance.
[311] Griffiths v Kerkemeyer [1977] HCA 45
The plaintiff was not a verbose prosecutrix when it came to this issue and gave the following evidence about cleaning:
“And what about for the cleaner? How long for the cleaner? ---They'd take between one and two hours a week – or, sorry, they actually come once a fortnight, so it is – yes.

So, but - - -? ---An hour a week, yes.
All right. So, but for the fall how much time per week are you using the cleaner that you wouldn't have used a cleaner for except for the fall? That is a convoluted question, a terrible question. How much time do you pay a cleaner for because of the fall? ---It's difficult to say. As I said, I would probably – when you say 'except for the fall' it's difficult because I don't know what to extent the fall contributed to how I am at the moment. But I find – I do find it very helpful to have a cleaner for that one hour a week, which is two hours a fortnight they come”

The defendant’s approach is both realistic and appropriate. I allow the defendant’s assessment of these damages of $10,980.
G. Future domestic services
The pleadings originally claimed an unspecified buffer for this head of damages.
In written submissions counsel claimed a future buffer of $20,000 for this claim.
The defendant submitted that a sum of $7,785 is appropriate. This calculation is arrived at by using a multiplier based on limiting future domestic assistance to 75 years. The defendant’s basis of calculation is 173 x $45.
The litigation tables indicate that the plaintiff has a statistical life expectancy of a further 18.21 years. No authority was provided for a cut-off at 75 years as proposed by the defendant. It appears that the plaintiff had retired prior to March 2018. I note that s100 of the Cdoes not impose age limits on Griffiths v Kerkemeyer[1977] HCA 45; (1977) 139 CLR 161 damages.
There is some authority for S100 damages awarded to end of life expectancy. In Pryce v Dunlap (No 2) [2016] ACTSC 353 Elkaim J dealt with the issue as follows:

“Turning to future domestic assistance, the plaintiff claimed $40 a week of commercial assistance and $70 per week of gratuitous services. The claims were made for the balance of the plaintiff’s life expectancy of 37 years and total $129,140.
The defendants’ submission was an allowance of up to $10,000. The submission included reference to their ultimately being an age-related need for the services and the likelihood that the plaintiff will be able to do more of the housework as time goes by. There is an inherent inconsistency in these two points, although I do accept that now that the plaintiff is not working, she may well develop, at least for a period in the future, a greater capacity to do more housework. I also think that it is a valid consideration that any need for the services will be subsumed within a need dictated by old age.
In my view an appropriate way to deal with the conflicting considerations is to allow 1.5 hours of gratuitous domestic assistance for the balance of the plaintiff’s life expectancy but to only allow the commercial cleaner for the next 30 years”[312].
[312] Pryce v Dunlap (No 2) [2016] ACTSC 353

A calculation for whole of life would be $45 per week for 18 years using the 728 multipliers on the 3% tables, less 15 % for the vicissitudes of life. That amounts to $27,846.
I find that the $20,000 submitted buffer is a realistic sum and I allow it.

Summary of damages

General damages $120,000

Interest on past proportion (1/2 x 4% x 4 years x 120,000) $4,800

Ongoing medical care $5,000

Past out of pockets $24,598.66

Interest on past out of pockets ($24,598.66 x 4.1% x 4 years) $4034.18

Future out of pockets for shoulder $32,500

Buffer for wrist $7,500

Buffer for left knee $10,000

Past domestic services $10,980

Interest on past domestic assistance ($10,980 x 4.1% x 4 years) $1800.72

Future gardening $19,408

Future domestic services $20,000

TOTAL $260,621.56

Judgment and orders

Accordingly, the Court orders as follows:
1.Judgment be entered for the plaintiff against the defendant in the sum of $260,621.56.
2.        The usual order as to interest.
3.        The defendant is to pay the plaintiff’s costs.
4.        Order 3 does not take effect for a period of 21 days and, if either party notifies      my associate by email (copied to the other party) that it wishes to be further    heard in relation to costs, does not take effect until further order of the Court.

I certify that the preceding [123] numbered paragraphs are a true copy of the Reasons for Judgement of his Honour Magistrate Stewart

Associate: Rebecca Hunter

Date: 15 July 2022

General damages	$120,000
Interest on past proportion (1/2 x 4% x 4 years x 120,000)	$4,800
Ongoing medical care	$5,000
Past out of pockets	$24,598.66
Interest on past out of pockets ($24,598.66 x 4.1% x 4 years)	$4034.18
Future out of pockets for shoulder	$32,500
Buffer for wrist	$7,500
Buffer for left knee	$10,000
Past domestic services	$10,980
Interest on past domestic assistance ($10,980 x 4.1% x 4 years)	$1800.72
Future gardening	$19,408
Future domestic services	$20,000
TOTAL	$260,621.56