Meech v Ballan and District Soldiers Memorial Bush Nursing Hospital and Hostel Inc
[2020] VCC 854
•19 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-00703
| DEBORAH LEE MEECH | Plaintiff |
| v | |
| BALLAN & DISTRICT SOLDIERS MEMORIAL BUSH NURSING HOSPITAL & HOSTEL INC | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Ballarat (via Zoom hearing) | |
DATES OF HEARING: | 1, 2, 3, 4 and 9 June 2020 | |
DATE OF JUDGMENT: | 19 June 2020 | |
CASE MAY BE CITED AS: | Meech v Ballan & District Soldiers Memorial Bush Nursing Hospital & Hostel Inc | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 854 | |
REASONS FOR JUDGMENT
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Subject:INDUSTRIAL INJURY – CAUSE
Catchwords: Plaintiff fell while walking across landing or decking at defendant’s hospital premises in the course of her employment – landing alleged to be wet, slippery and affected by moss or like substance – whether breach of employer’s duty of care – whether employer should have used slip-resistant tape or other material or cleaned the area – contributory negligence – failing to keep a proper lookout – injury to left knee being aggravation of underlying degenerative condition – injury led to arthroscopic surgery – subsequent total knee replacement – whether slip incident causally related to total knee replacement – injury subsumed acceleration of pre-existing degenerative change in the knee – assessment of pain and suffering damages
Legislation Cited: Wrongs Act 1958, s14B
Cases Cited: Ansett Australia Ltd v Taylor [2006] VSCA 171; Liftronic Pty Ltd v Unver [2001] HCA 24; Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; McLean v Tedman & Anor (1984) 155 CLR 306; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611; Commissioner for Railways v Halley (1978) 20 ALR 409; Davies v Adelaide Chemical and Fertilizer Co Ltd (1946) 74 CLR 541; Commissioner for Railways v Ruprecht (1979) 142 CLR 563; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Kulczycki v Metalex Pty Ltd [1995] 2 VR 377
Judgment: Judgment for the plaintiff – No contributory negligence - Pain and suffering damages assessed at $110,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull QC with Mr S Jurica | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms F Spencer | IDP Lawyers |
HIS HONOUR:
Preliminary
1 On 19 June 2012, Mrs Deborah Meech, a previously fit and active nurse, fell on what she described as a wet and slippery outdoor landing or decking at the defendant’s hospital premises at 33 Cowie Street, Ballan. She said her legs went from under her, she fell awkwardly and although she was able to get up and continue with her work, felt pain in her left knee.
2 Mrs Meech says the surface of the landing was slippery and had some green moss or like substance on it which she observed after the fall. It did not have non-slip tape or strips fixed to the surface as did another landing in the area. After the fall, she claims the landing on which she fell was “gurnyed”[1] to clean away slippery material and non-slip strips were applied.
[1]“Gurney” – a cleaning device using high pressure water
3 The plaintiff made a claim for compensation with the WorkCover insurer. The claim was accepted, and weekly payments of compensation and medical expenses were paid.
4 Mrs Meech went to see her general practitioner and was treated, initially conservatively with medication and physiotherapy. Mr Andrew Byrne, orthopaedic surgeon, performed arthroscopic surgery on 13 September 2012 to repair the knee, including articular damage to the medial femoral condyle. The surgeon observed underlying degenerative damage, but also evidence of an acute injury.
5 Eventually, in March 2019, Mrs Meech underwent total left knee replacement surgery under the care of Mr John Dillon, orthopaedic surgeon. This relieved some of the symptoms, but she is left with ongoing pain and restriction.
6 Mrs Meech was retrenched from her work with the defendant, and now works as a personal carer, on reduced hours. The work is more physically demanding than her previous job. She claims a range of recreational, sporting and social activities have been lost or curtailed.
7 The plaintiff’s Statement of Claim pleads a breach of the employer’s duty of care and a breach of the occupier’s duty pursuant to s14B(3) of the Wrongs Act 1958. Mr Seccull, counsel for the plaintiff, at the outset indicated he did not pursue the breach of duty under the Wrongs Act. The trial proceeded on the basis of breach of the employer’s duty of care.
8 Further, Mr Seccull alleged the payment of compensation as well as medical and like expenses made on behalf of the defendant constituted an admission as to the causative relationship between the fall and the left knee injury, including the total knee replacement, in accordance with the principles established in Ansett Australia Ltd v Taylor;[2] however, after the conclusion of the evidence, he did not press that submission.
[2][2006] VSCA 171
9 The issues to be determined in this proceeding are:
· Was the defendant employer (“the hospital”) in breach of the duty of care it owed the plaintiff to provide a safe system of work, in particular to ensure the landing upon which she was required to walk, was not slippery nor affected by the moss-like substance?
· Was the plaintiff contributorily negligent by failing to keep a proper lookout?
· What was the nature and extent of the plaintiff’s pre-existing left knee degenerative condition and would she have come to left knee replacement in any event, absent the fall?
· If there was negligence on the part of the hospital, in what sum should the plaintiff’s pain and suffering damages be assessed?
Was the hospital in breach of the duty of care it owed the Plaintiff to provide a safe system of work, in particular to ensure the landing upon which she was required to walk, was not slippery nor affected by the moss-like substance?
(a) A brief summary of the relevant evidence
10 Mrs Meech worked for the hospital from 2003. She started as a personal care attendant, attained a university nursing qualification, and worked as a personal care co-ordinator from the Cowie Street premises. She would go out to visit clients in the area to ensure they had adequate health services.
11 A map of the premises was produced.[3] Mrs Meech’s office was marked on the map, near Simpson Street. Also marked with a green pen was the route she took on 19 June 2012, just before the fall. She walked for a short distance along Cowie Street, and then through the premises to another landing (for convenience, the “Cowie Street landing”) marked with a cross. She then walked through several buildings into a kitchen area, before walking out onto the second landing (“the Inglis Street landing”), also marked with a cross. It was her intention to go to the car park as marked on the plan, to take a work car to a client’s house. She sometimes took alternative routes to get to the car park but would walk across the Cowie Street and Inglis Street landings once or twice a week. I infer she was well familiar with the route and the landing areas.
[3]Joint Court Book (“CB”) 141
12 Mrs Meech said the Inglis Street landing was two or three times larger than the Cowie Street landing and was constructed of similar materials, although the Cowie Street landing was surrounded by a railing. Both were outside. She said, before the fall, the Cowie Street landing had non-slip strips or material on the surface as is depicted in various photographs, obtained from the hospital’s records.[4] She did not take photographs of the Inglis Street landing as the area has been subsequently renovated. There were no non-slip strips or material on the Inglis Street landing at the time of her fall.
[4]Exhibit B, photographs of Cowie Street landing, CB 142-145
13 At about 10.00am or 10.30am on 19 June 2012, Mrs Meech walked through the building and through the kitchen which adjoined the Inglis Street landing. She said the landing was wet, although could not remember the state of the weather.[5] She could not precisely remember the shoes she was wearing, but it was her practice to wear “nursing shoes” with a flat rubber sole.
[5]Transcript (“T”) 38, Line/s (“L”) 10-12
14 Mrs Meech moved from the interior kitchen area, to the outside Inglis Street landing. She could not recall whether there was a step or rise between the two. She could not recall how many footsteps she took onto the landing; possibly one, maybe several. All she could remember was slipping. It happened very quickly. She fell to the ground, with her left leg at or near steps leading off the Inglis Street landing, and her right leg behind her. She thought her left knee took a lot of the impact. She said she felt pain in her left knee, and it did not feel right. She was assisted by another employee, an optometrist, Jeremy, although she was not aware whether he had witnessed her fall. He saw her on the ground. She spoke to him some days before the trial commenced.
15 Immediately after she had fallen, Mrs Meech noticed the surface of the landing. It was wet and there was “moss stuff covered over it”.[6] The moss was on the top and pants she was wearing. She was able to get to her feet. She went home to change her clothes and wash the moss off.
[6]T40, L10
16 Mrs Meech said after the fall, non-slip strips were applied to the Inglis Street landing and it was cleaned with a gurney. She did not see the gurney in operation.
17 In cross-examination, Mrs Meech said she did not notice the moss on the Inglis Street landing or that it was wet before she stepped out onto it.[7] She thought she did not look at the surface. She just opened the kitchen door and stepped out. She agreed she was familiar with the landing and that was the reason she did not look down. She made no prior complaints about the landing to anyone at work. It was put to her that the Inglis Street landing had been cleaned, and non-slip strips applied before her fall. She disagreed. She said there were strips on the Cowie Street landing only.
[7]T80, L28
18 Later that day, after she had been to see a client, she reported the incident to Ms Michelle Woodruff, the clinic manager, and completed a Register of Injuries form.[8] A Worker’s Injury Claim Form was also completed.[9] She did not take Ms Woodruff to the area where she fell.
[8]Exhibit One
[9]Exhibit Two, CB 137-138
19 On a further plan of the hospital area,[10] Mrs Meech identified the Inglis Street landing (marked with a yellow cross) and a nearby tree (marked with a yellow line), the branches of which overhung part of the landing. There were two entrances onto the landing (marked with red and blue dots).
[10]Exhibit Three
20 It was put to Mrs Meech that she was confused or mistaken about the landing upon which she fell and in fact she fell at the Cowie Street landing. She disagreed. It was put that she was confused or mistaken about the non-slip strips. It was suggested these were applied to the Inglis Street landing before the fall. She disagreed. The Worker’s Injury Claim Form she filed[11] states that the landing upon which she fell was “outside of clinic (kitchen area) slipped on moss covered wet landing …”. She said there were no non-slip strips applied to the Inglis Street landing before her fall. She said there was no railing around the perimeter of the Inglis Street landing.
[11]Exhibit Two
21 Generally, I found Mrs Meech a truthful witness giving a fair account of the fall and the injury she suffered. There were no major credit issues put to her. There were some minor inconsistencies from the clinical notes raised, but I did not see them as particularly significant. She was responsive in cross-examination, although was criticised by Mr Middleton, counsel for the hospital, as not being able to remember various things when it suited her. I do not accept that criticism. I find myself able to rely upon her evidence as to how and in what circumstances the fall occurred.
22 Evidence was given by Mr Shane Howden, a nurse who worked at the Ballan Health premises from 2003 until 2016 and worked with the plaintiff. He recalled a conversation with Ms Meech – he thought around July 2012 – in which she said she had slipped upon the Inglis Street landing. He was able to recall it was July as he had a fall while at a client’s premises around that time. He recalled Mrs Meech told him she had fallen and hurt her knee.
23 Mr Howden said that at certain times of the year, there were leaves on the Inglis Street landing when it was windy. He identified several trees along Inglis Street, and one in the house adjoining the car park area, although at a point lower than that described by Mrs Meech. He was cross-examined at length about his ability to recall that conversation, now so many years later, but said he was able to remember it.
24 Further, he recalled the landing being slippery when it was wet and he lost his footing and almost slipped a number of times.
25 Mr Howden recalled the area had been renovated around 2011, and, in 2012, an adjoining house which was acquired became the kitchen area and Inglis Street landing of the Health Centre.
26 Mr Howden accepted there was a gardener employed but remembered the landing was regularly slippery.
27 Mr Howden left employment with the hospital as there were allegations that he had fraudulently entered clients’ data onto a computer system. He denied the allegation. Despite this, he said he did not hold any grudges against the hospital.
28 Mr Howden said he reported the state of the landing on several occasions to the director of the facility, Ms Wendy Grayland, and to others. He was uncertain whether that was before or after the plaintiff’s fall. He recalled slip-resistant tape on the Cowie Street landing, but that it came off regularly.
29 On one occasion, when the Inglis Street landing was slippery and there was a fine moss-like substance on it, he thought he did the splits, although did not fall, as he was able to grasp a door handle. The area was fine in summer.
30 The defendant called Ms Wendy Grayland to give evidence. She had worked for the hospital over a considerable period. She is not currently employed with the hospital. In 2012, she was the health services manager and at times, acting CEO.
31 Ms Michelle Woodruff was one of the people who reported to her. She thought Ms Woodruff had left employment with the hospital around 2013.
32 At some time shortly after the fall, Ms Woodruff told her that the plaintiff had suffered a fall on the Cowie Street landing. She did not go to see the site, but instructed the maintenance employee, Andrew, to put some non-slip tape on the Cowie Street landing. She also told him to put non-slip strips on the Inglis Street landing as a “preventative measure”.
33 Both landings became wet from time to time as they were outside, but she did not observe either deck to be slippery, nor contain any moss or similar substance. She said trees did not overhang the Inglis Street landing. She walked on both landings regularly. For a period, she lived in an adjoining house.
34 Ms Grayland was taken to the Worker’s Claim Form dated 16 August 2012[12] and accepted the words “outside of clinic (kitchen area)” would refer to the Inglis Street landing. She said no one complained to her about any issue regarding the surface of the landing, or whether it was slippery or had a moss-like substance on it. She denied receiving complaints from Mr Howden to that effect. Ms Tracey Sheriff was the clinical care co-ordinator at the time and signed the Claim Form.
[12]Exhibit C
(b) Where did the fall occur?
35 The plaintiff contends the fall occurred on the Inglis Street landing. The defendant says it was the Cowie Street landing.
36 Mrs Meech gave evidence that on 19 June 2012, she followed the route marked by green pen through the hospital premises, along Cowie Street, out through the kitchen and onto the Inglis Street landing.[13]
[13]See exhibit A
37 Of significance, in my view, is the description of how and where the fall occurred in the Register of Injuries[14] and the Worker’s Claim Form.[15] According to the Register of Injuries, the fall occurred “on the wooden landing (patio) outside of clinic (back kitchen area)”. The evidence of the various witnesses was that this description could only be the Inglis Street landing. This document is dated 19 June 2012, the day of the fall. This information could only have come from Mrs Meech, as there were no witnesses. A similar description was given in the Worker’s Claim Form, which was signed on 16 August 2012. Again, the Inglis Street landing was identified.
[14]Exhibit One
[15]Exhibit Two
38 The only evidence to the contrary is that of Ms Grayland, who said she was informed by Ms Woodruff that the fall had occurred on the Cowie Street landing, as a result of which she took steps to apply non-slip material and had the landing cleaned. It is significant that Ms Grayland also arranged for the same procedure to the Inglis Street landing.
39 The defendant points out that the person who was said to have assisted Mrs Meech after the fall, an optometrist, “Jeremy”, was not called to give evidence and I should draw the inference that had he been called, his evidence would not have assisted the plaintiff, and I should more readily accept the evidence of other witnesses of the defendant.
40 I accept the defendant’s submission in that regard, particularly given the plaintiff accepted she spoke to Jeremy a short time prior to the commencement of this trial. I infer his evidence would not have assisted the plaintiff.
41 However, the hospital relies upon a statement made to Ms Grayland by Ms Woodruff, who was also not called to give evidence. She is clearly in the defendant’s “camp”, and I infer her evidence would not have assisted the hospital. The defendant further points out that there were no photographs taken of the landing, nor did Ms Meech point out to anyone in authority at the hospital the place where the incident occurred; however, this can be explained by the fact that Ms Meech was able to get up from the fall, get to her home and then travel to see a client. In those circumstances, it is not surprising she did not take the steps suggested.
42 The evidence of the plaintiff, and the injury and claim forms, are more persuasive. On 19 June 2012, there would be no reason for Ms Meech to substitute a different landing from that upon which she fell. I am satisfied the fall occurred on the Inglis Street landing.
(c) How did the fall occur?
43 The plaintiff gave evidence that after she fell, she saw the Inglis Street landing was wet. There is no evidence to suggest otherwise, and I accept what the plaintiff says; however, the mere fact that an outside landing was wet does not make it slippery nor a hazard.
44 The plaintiff described that immediately after the fall she noted:
“Just it was wet and had green, what I described as moss stuff covered over it.
…
Yeah, it had, um, this green mossy stuff had come off on my clothing.
…
At my top and my pants.”[16]
[16]T40, L9-15
45 Further, the plaintiff said that she saw a skid mark after the fall.[17]
[17]T91, L21
46 That evidence is supported, again, by the documentation. The Register of Injuries records:
“Slipped on moss covered wet landing. I did the splits when I slipped on Tuesday 19th June 12.”[18]
[18]Exhibit One, CB 135
47 Further, the Worker’s Claim Form records:
“Walked out onto wooden landing (patio) out side of Clinic (kitchen area). Slipped on moss covered wet landing. I did the splits & Ⓡ leg ended up behind me & Ⓛ Leg down the stairs.”[19]
[19]Exhibit C
48 The plaintiff said that after the incident, she went home to change her clothes, because they had “a green slimy moss on them”.[20]
[20]T43, L8-9
49 I should say something about the evidence of Mr Howden. He said the landing was regularly slippery, was often covered in leaves, particularly when it was windy, and he himself had slipped, although not fallen, on several occasions prior to Mrs Meech’s fall. He said he complained of this to Ms Grayland and others at the hospital. I found the evidence of Mr Howden unsatisfactory. He became an advocate for the plaintiff’s cause. When cross-examined, he regularly tried to answer questions in a way that assisted the plaintiff.[21] In the circumstances, I did not find the evidence of Mr Howden persuasive, and do not rely on his description of the Inglis Street landing around the time of the fall.
[21]See examples T246, L13-23; T247-248, T253-255
50 It is probable that if there was moss on the Inglis Street landing, it had been there for some time. It is difficult to say for how long, but a moss or similar material would not develop overnight or within a short period. Ms Grayland accepted that it would have taken some time to develop.[22] She accepted it might take weeks or months.
[22]T353, L25-26
51 Based upon the evidence of Mrs Meech and the documentation to which I have referred, I accept that there was moss or a moss-like substance upon the Inglis Street landing at the time of the plaintiff’s fall. I accept that that material had been there for some period, at least days, possibly weeks. It follows from the way the plaintiff said she fell, from the skid mark she observed and from the substance being on her clothes afterwards, that that material or substance was a cause of the plaintiff’s fall.
(d) The steps taken by the hospital after the fall
52 Mrs Meech gave evidence that prior to her fall, there were non-slip strips applied to the Cowie Street landing as evidenced by the photographs;[23] however, even accepting I consider Mrs Meech generally a witness of truth, I am not satisfied that her recollection of the Cowie Street landing prior to her fall was such that she can recall the strips having been applied before the fall. I accept the evidence of Ms Grayson that non-slip strips were applied both to the Cowie Street and the Inglis Street landings after, and as a result of, Mrs Meech’s fall. Ms Grayson said that once she was told of the fall, she instructed the maintenance employee, who was also the occupational health and safety representative, to apply the strips. Further, the Register of Injuries provides, under s5:
“Deck cleaned – non-slip matting applied to stairs.”[24]
[23]Exhibit B
[24]Exhibit One, CB 136
53 Section 5 was said to be completed by the manager, Ms Tracie Shirreff, and was signed on 20 June 2012. It is my view that the photographs of the Cowie Street landing[25] were likely taken after the fall.
[25]Exhibit B
54 I accept the evidence of Mrs Meech that she observed the landing had been cleaned after the fall, although she did not actually see it happening.
55 Ms Grayson described the application of non-slip strips to the Inglis Street landing as “preventative”. I take this to mean that it was undertaken because of Mrs Meech’s fall and to prevent something similar happening again. This rectification work may be taken into account in considering what steps the hospital ought to have taken to prevent the fall.
(e)What was the nature of the hospital’s duty of care, and was there a breach of that duty?
56 As her employer, the hospital owed Mrs Meech a duty to take reasonable care against the foreseeable risk of injury. That duty, in the context of the employment relationship, included a duty to provide a safe place of work and a safe system of work.
57 Mr Middleton argued that the duty in the circumstances was one akin to an occupier’s duty; that is, to take such care in all the circumstances as was reasonable to see that a person was not injured by reason of the state of the premises, or of things done or not done in relation to the state of the premises.[26] In the end, there is not a significant difference between the duty owed by an employer, to that of an occupier in these circumstances. The duty is one to take reasonable care against the foreseeable risk of injury. There is no issue that a fall on a landing such as this would be foreseeable in circumstances where the surface was slippery and wet.
[26]Section 14B(3) of the Wrongs Act 1958
58 In my view, the duty included an obligation to have in place a system to ensure the landings upon which employees were required to walk in the course of their duties were reasonably safe. That was particularly so given the landings were outside and open to the elements. It should have taken no great exercise of an employer’s mind to realise there would be a risk, without regular cleaning or application of appropriate non-slip material, for there to be the development of moss or some like substance over time, so as to cause the landing to become slippery.
59 The High Court has emphasised the heavy nature and broad extent of an employer’s duty. In the much quoted passage from Liftronic Pty Ltd v Unver,[27] the Court said:
“… The appellant, on the other hand, as employer, bore a heavy responsibility to devise, institute and enforce a safe place of work, and safe system of work, so as to avoid exposing workers, such as the respondent, to unnecessary or unreasonable risks. This was a duty personal to the employer. The ultimate legal responsibility for its fulfilment could not be delegated. In this sense, explaining the standard of care expected of an employer in terms of the conduct of ‘the reasonable person’ may have understated the very heavy duties that the law in Australia casts on an employer. Such duties include affirmative attention to the issue of accident prevention. … .”[28]
[27][2001] HCA 24 (“Liftronic”)
[28]Liftronic (ibid) at paragraph [85]
60 Mr Middleton submits there were a number of reasons why the hospital was not in breach of its duty.
61 Firstly, Mrs Meech had a choice. She was not required to walk along any particular path and could have utilised Cowie and Inglis Streets to gain access to the car park.
62 Secondly, absent the evidence of Mr Howden, there was no evidence of any complaints being made about the surface of the Inglis Street landing before the fall. Ms Grayson said she was unaware of any complaints, or of any issue with the surface.
63 Thirdly, the hospital employed a full-time maintenance employee, who was also the occupational health and safety representative who did all the maintenance at the premises. There were monthly occupational health and safety meetings and monthly risk assessment patrols to identify dangerous or hazardous issues at the hospital.
64 Fourthly, Mrs Meech walked over the landing fifty to a hundred times a year and had not reported any concerns with the surface.
65 Fifthly, as part of an accreditation process for the hospital, each three years, two assessors from a relevant authority would attend over several days. There were two forms of accreditation. The accreditation system addressed management, governance, clinical systems and occupational health and safety matters. The assessors walked through the premises to determine whether there were any serious risks. The assessment covered the Cowie Street and Inglis Street landings.[29]
[29]T340-341
66 In those circumstances, Mr Middleton said there could be no breach of the hospital’s duty of care. He said all reasonable steps had been taken against the foreseeable risk of injury. He noted that the authorities made it clear that persons upon premises had an obligation to exercise reasonable care for their own safety, including an obligation to look where they were going.[30] He emphasised that the matter should not be looked at with the benefit of hindsight.
[30]Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at paragraph [123]; McLean v Tedman & Anor (1984) 155 CLR 306 (“McLean”) at 311-312; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431
67 While Mrs Meech may have been able to access the car park by a different route, avoiding the Inglis Street landing, she was never directed to do so, and regularly used the route which took her through the kitchen and on to the Inglis Street landing. That was the system of her work at the time. The fact that there were no complaints known to have been made is a matter to be taken into account; however, that fact alone is not sufficient to absolve the hospital of liability. The duty owed is not to act only when a complaint is made.
68 I am not satisfied the accreditation process is a matter which significantly alleviated the obligation on the hospital. It was only undertaken every three years and was not a regular assessment of hazards, including slippery landings. While there was a full-time maintenance employee, it was significant, in my view, that there was no established regular system for the inspection and cleaning of landings, particularly in wet weather, to ensure they were safe.[31] Safety meetings and patrols of the hospital grounds were not sufficient.
[31]See evidence of Ms Grayland – T354, L28 – T355, L11
69 It is foreseeable that there could be the development of a moss or other substance on a wooden landing, particularly when wet, and that if that were to occur, it would be a slipping hazard. Further, I am satisfied that in order for the moss-like substance to have developed sufficiently to cover part of the surface of the Inglis Street landing, it must have been present for some days, possibly weeks. The substance represented a hazard which could have been relatively easily attended to by cleaning and the placing of non-slip strips. Absent any system of regular inspection, it was foreseeable the surface would be slippery and hazardous for employees to walk on.
70 In the circumstances, I am satisfied that the duty of the hospital extended to ensuring regular inspection and maintenance of the landing area which would, at relatively little cost, have resulted in the removal of the slippery substance and the likely avoidance of the plaintiff’s injury.
71 In these circumstances, the hospital was in breach of the duty of care it owed its employee.
Was the Plaintiff contributorily negligent in failing to keep a proper lookout?
72 If the hospital was in breach of its duty of care, it alleges the plaintiff was contributorily negligent. Essentially the defendant says Mrs Meech failed to keep a proper lookout. She should have looked where she was going. Had she done that, she would have seen it as wet, with a moss-like substance, and would have taken additional care to ensure she did not slip and fall.
73 In evidence, Mrs Meech said she was not aware of the presence of the moss-like substance until after she fell. She was not aware the Inglis Street landing was wet or slippery. She had not experienced problems prior to the fall. She said she was not particularly looking at the landing as she was familiar with it and had walked on the same course many times before.
74 It is clear from a number of decisions of the High Court that in an employment context, reasonable care by an employer, in relation to a safe system of work, should take account not only of inadvertence, misjudgement or inattention, but also neglect, carelessness and sometimes even foolishness or misconduct on the part of an employee. It has been said that there is an increasingly “forgiving” attitude by the courts towards errant employees.[32]
[32]Liftronic (supra) at paragraph [87]; McLean (supra); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
75 Inattention borne of familiarity with a repetitive task, absorption in work function and mistakes caused by fatigue may not constitute contributory negligence. The same has been said to be true in respect of an employee who lacks appreciation of a danger to which a system of work exposes him or her.[33]
[33]Commissioner for Railways v Halley (1978) 20 ALR 409
76 As early as 1946, the High Court, in Davies v Adelaide Chemical and Fertilizer Co Ltd,[34] referred to these principles. The Court was concerned with a case of a worker who was injured while applying grease to the rollers of a machine as it was in motion. He had not been instructed to stop the machine prior to applying the grease. Dixon J said:
“At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and long-standing practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work.”[35]
[34](1946) 74 CLR 541
[35]At 551
77 In Commissioner for Railways v Ruprecht,[36] the High Court was concerned with a case involving an injury to a railway employee who did not look along a railway line before he stepped onto it when he was preoccupied with his duties. Gibbs J said:
“… However, in deciding whether the respondent [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man’s preoccupation with the matter in hand, with a view to deciding ‘whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man’: Sungravure Pty Ltd v Meani … .”[37]
[36](1979) 142 CLR 563
[37]At 568
78 McLean v Tedman and Brambles Holdings Limited[38] concerned a garbage collector who was injured by a motor vehicle when running across a road carrying a garbage ‘humper’. Gibbs CJ (as the minority) observed that the task performed by the employee at the time was not so engrossing or difficult as to cause him to be pre-occupied or confused. It was not an activity requiring constant repetition, nor that he was so familiar with the task as to excuse him crossing the road in front of a vehicle. He concluded that the employee’s conduct was less than might be expected of a prudent and reasonable man.
[38]Supra
79 Mason, Wilson, Brennan and Dawson JJ, as the majority, said Brambles, the employer, had a system of work whereby garbagemen would run across roads from behind garbage trucks, in dark conditions. It must have been aware of the risks that system entailed. The Court said:
“… In such a situation it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. … There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.
Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee’s inadvertence, inattention or misjudgment in performing his allotted task. … .”[39]
[39]McLean (ibid) at paragraphs [8] and [9]
80 Further:
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming: The Law of Torts (6th ed, 1983) pp 480–1). And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”[40]
[40]McLean (ibid) at paragraph [12]
81 In Kulczycki v Metalex Pty Ltd,[41] Tadgell J considered the principles of contributory negligence, in particular in the context of then recent High Court dicta as to whether the negligent or inadvertent conduct of an employee may constitute contributory negligence. His Honour came to a different conclusion to Ashley J on the issue. He said an employer was not necessarily bound to guard against each and every possibility, however unlikely, of careless conduct on the part of an employee. His Honour said:
“… If there is a breach of the employer’s duty the question whether a finding of contributory negligence is nevertheless open will depend on an assessment of the nature of the act or omission of the employee on which the employer relies as constituting a failure to take reasonable care for the employee’s own safety. The assessment will be made in the light of the circumstances which the tribunal of fact has already determined to constitute negligence on the part of the employer.
The employer’s duty is to take reasonable care to avoid unnecessary injury to the employee, including foreseeable injury caused by the employee’s own inattention to personal safety. Neither the existence of that duty nor a breach of it absolves the employee from the consequences of a failure to take reasonable care. In my opinion the law is that if an employer is in breach of duty to an employee which is a cause of injury to the employee, and the employee is also guilty of a failure to take reasonable care which is a cause of the injury, the employee will inevitably be guilty of contributory negligence; and if the employee's act or omission which was a cause of the injury does not amount to a failure to take reasonable care, the employee can not be guilty of contributory negligence. It is as plain as that.
… I think it cannot, for example, be usefully postulated that, because a risk of injury to an employee is readily foreseeable on the part of an employer who failed to take reasonable steps to guard against it, contributory negligence cannot be found against the employee a cause of whose injury is the employer’s breach of duty. …
… To say that in such a case the employer’s duty included an obligation to take into account the possibility of negligence of the employee does not affect at all the question whether the employee did in fact fail to take reasonable care. … .”[42]
[41][1995] 2 VR 377 (“Kulczycki”)
[42]Kulczycki (ibid) at 381
82 In Czatyrko v Edith Cowan University,[43] the High Court considered a case where a worker fell from the back of a truck after a lifting platform had been lowered by other employees without his knowledge:
“In the present case, the appellant [worker] did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent [employer]. This it failed to do in this case. The appellant’s attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than ‘mere inadvertence, inattention or misjudgment’. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. … .”[44]
[43](2005) 79 ALJR 839
[44]At paragraph [18]
83 In Mayhew v Lewington’s Transport Pty Ltd,[45] the Victorian Court of Appeal considered an appeal against a finding of contributory negligence by a jury in circumstances where the appellant was attempting to descend steps on the rear of a truck when he fell and suffered significant injury. The Court noted[46] that the worker was required to climb up and down the stairs of the truck on many occasions in the course of his employment. The fact that something similar had not occurred in the past was not to the point, nor the fact that there was no evidence the steps were in poor repair. The fact that the worker had let go of the rungs of the ladder before ensuring his foot was firmly on a lower step, was also not to the point.
[45][2010] VSCA 202
[46]At paragraph [36]
84 In the present case, the hospital owed a duty to take reasonable care against the risk that Mrs Meech might walk across a slippery landing, fall and suffer injury. It breached that duty. That duty, in an employment context, was a duty to take account of inadvertence or carelessness on the part of its employee. The duty extended to consider there might well be situations where an employee, walking through the hospital building to the car park, would not look at the surface of the landing. Central to that consideration is that the hospital should have established and enforced a system to ensure the landing was cleaned and had non-slip material applied, particularly in the winter months when it was likely to be wet.
85 Mrs Meech did not look down to the surface of the landing as she was leaving the kitchen. In the circumstances, that failure could be regarded as inadvertence or carelessness. The reasoning of the majority in McLean,[47] in my view, has particular application. While the garbage collector in that case could be said to be careless or inadvertent in failing to look for approaching traffic as he crossed the road, that conduct did not amount to contributory negligence. Likewise, while Mrs Meech could be said to be inadvertent or careless in failing to look at a landing on a wet day, that was the system in place at the time, and the duty upon the hospital was one to take such conduct into account.
[47]Supra
86 In all the circumstances, I am not satisfied there is any contributory negligence on the part of Mrs Meech.
What was the nature and extent of the Plaintiff’s pre-existing left knee degenerative condition and would she have come to left knee replacement in any event, absent the fall?
87 Mrs Meech could recall no problems with her left knee before the fall. She was taken to a number of clinical notes of her general practitioner, including of 9 December 2010, 4 June and 10 September 2011 making reference to pain or problems with her knee, including lumps behind the left knee. She said she could not recall those attendances.
88 Mrs Meech said the work she was doing at the time was not affected by any knee problems she had. She had a wide range of activities, including gardening, bike riding, a range of gymnasium-related activities, tennis, dancing and walking. She also was active with her grandchildren. She did not encounter any difficulties enjoying those activities. In the circumstances, these pre-fall attendances are of little significance.
89 The plaintiff’s husband, Mr John Meech, confirmed that before the fall, his wife was very active and fit, and he could not recall any prior problems with her left knee.
90 Mr John Dillon, the orthopaedic surgeon who carried out the total left knee replacement, was called to give evidence and cross-examined. His reports were tendered.[48] He identified that MRI scans taken in July 2012 showed bony swelling or oedema found in the posterior aspect of the medial compartment of the knee. He said that was evidence of an acute injury and related to the fall,[49] and not to pre-existing arthritis. In his first report of September 2016, Mr Dillon noted that, depending upon the symptoms in the knee, Mrs Meech may come to knee joint replacement. Mr Dillon said the fall may have aggravated the underlying arthritis, although there was no real way of knowing, and it would depend upon her symptoms.[50]
[48]Exhibit D
[49]T282, L9-13
[50]T283, L2-6
91 Mr Dillon said he would normally encourage patients with total knee replacements to return to sports, including doubles tennis, going to the gym and cycling; however, he noted that Mrs Meech reported swelling and discomfort in the knee after a long day at work. He said it takes eighteen to twenty-four months following surgery for the knee to stabilise.
92 In relation to a finding of significant quadriceps wasting five weeks after the fall, Mr Dillon said that could occur quickly after an injury, even within weeks. Mr Dillon agreed that the fall was responsible for causing pain from the pre-existing degenerative pathology, although did not cause the pathology itself.[51] He further agreed that there was a rapid decline in the pathology between 2017 and 2018 to the point where the x-rays showed “bone on bone” arthritic changes in the medial compartment.[52]
[51]T293, L12-17
[52]T293, L18-23
93 Mr Dillon concluded:
A:“… – a degenerative process in place and it would not be unreasonable to think that that would progress to end-stage arthritis within a few years in the absence of a fall. And I don’t think her pain following her knee replacement surgery is in any way related to her pre-operative fall in 2012. So her current situation now after her knee replacement and she – the pain she describes – that is not related, in my mind, to her fall either. … .
Q:Well, I suppose that the nub of my question is to what extent is the total knee replacement related to the fall?‑‑‑
A:I do not think that it is materially caused by the fall, personally.
…
It may have progressed her pain and it may have maybe resulted in her having a knee replacement slightly earlier, but I don't think anyone can accurately quantify that.”[53]
[53]T296, L6-23
94 Further, Mr Dillon said:
Q:“Is there any – or in your opinion – I beg your pardon, Mr Dillon – is there any relationship between the fall and the need for the total knee replacement?‑‑‑
A:No. I don’t think the knee replacement five to six years following a fall, that the fall significantly contributed to the progression of her arthritis unless the fall resulted in a massive fracture or a ligamentous injury or had a significant intra-articular injury.
…
So I don’t think it significantly caused the progression of her arthritis.
…
… it exacerbated symptoms at the time of injury---
… which resulted in surgery, but the integral progression between her injury in 2012 and her subsequent knee replacement, I would think, was not determined by that fall, personally.”[54]
[54]T297, L7-24
95 Evidence was given by Mr Rodney Simm, consultant orthopaedic surgeon. His reports were tendered into evidence.[55] In his supplementary report, in response to a supplementary report by Dr Iain McLean, he said he did not think there was much disagreement between their respective views. He said from the operation notes of Mr Andrew Byrne, it was clear there was a severe degree of degeneration in the left knee at the time. He said the operation notes showed Grade 4 articular damage evident over an area of 2 centimetres x 2 centimetres. He said this was effectively “bone on bone” degeneration.
[55]Exhibit Five
96 Mr Simm described the fall as causing only a moderate injury, although accepted it likely brought about the onset of pain in the left knee. The fall did not cause the osteoarthritis. He said the fall may have brought about the total knee replacement a little earlier, although it was impossible to say by how much. He said there was a rapid acceleration of the arthritic change in 2018 to 2019 as evidenced by x-rays taken at the time.
97 Mr Simm was taken to a number of clinical notes. He said the entry of 29 December 2010[56] was of little issue, given it did not say which knee was twisted. He said the entry of 10 September 2011[57] was not particularly indicative of a problem, although the possible patellar cyst may indicate underlying degenerative change. He did not agree with the opinion of Mr Dillon that the quadriceps wasting as found by Mr Byrne at an early stage, could have occurred after the fall. He thought it was more likely to have developed over a longer time.
[56]CB 157
[57]CB 156
98 According to the history he received, he said that the plaintiff was able to go back to work after the fall, indeed continue to work on that day, and resumed some cycling and other physical activities which indicated to him that the fall was not particularly significant.
99 Mr Simm said at some point, and he was unable to say when, the pain that arose from the fall aggravating the underlying condition changed, and became related to the degenerative arthritis which led to the total knee replacement.
100 According to his report of May 2020:
“The diagnosis is progressive osteoarthritis of the left knee, which has ultimately been treated with moderate success with a left total knee replacement on 20 March 2019. The osteoarthritis is a constitutional condition, … She had endstage osteoarthritis with a large area of exposed bone at the time she fell on the stairs on 19 June 2012. She was noted to have significant left quadriceps wasting five weeks after the fall in June 2012, indicating she probably had longstanding left knee dysfunction. She had been surprisingly active despite these changes of advanced osteoarthritis. It is not uncommon for people to have quite advanced degenerative pathology and to maintain high levels of activity in the presence of this pathology, until such time as the pathology deteriorates and these activities are no longer possible. … .
The work incident was therefore responsible for causing pain from the pre-existing pathology, rather than causing the pathology. …
…
… There is no contribution to her current condition from the injury, other than the fact it may be argued she had a total knee replacement a little earlier than would have been necessary if she had not had the work injury. …
… The work injury did cause her to suffer from more pain from the osteoarthritis, and this pain did restrict her activities over the years before she had the knee replacement operation. … .”[58]
[58]CB 132-133
101 Mr Andrew Byrne, the plaintiff’s earlier treating orthopaedic surgeon, provided a range of letters and reports.[59] He received a history when he first saw her on 26 July 2012, that Mrs Meech had slipped on a wooden veranda and ended up “scissoring” her legs. His initial examination confirmed quadriceps wasting to a significant degree. As early as 6 August 2012, he reported to Mrs Meech’s general practitioner that a total knee replacement was inevitable. His operation report detailing the findings in the arthroscopic procedure of 13 September 2012 confirmed Grade IV articular damage with “bare bone evident over an area of 2 x 2 centimetres”. He found bone marrow oedema which was suggestive of an acute injury. When he reviewed Mrs Meech on 15 October 2016, he said she was going well. He noted she was back at the gym and taking Panadol. He said he told her further problems were highly likely. He concluded that the fall was unlikely to have caused all the degenerative change to the knee which he identified at surgery; however, he said:
“… The fall on the verandah however would have significantly contributed her developing issues in her knee joint as the MRI did show bone marrow oedema which is consistent with an acute injury. It is more likely than not that the work incident has contributed significantly to her developing articular damage in the knee joint. It is more likely than not that her articular damage was progressing without her knowledge prior to the incident described.”[60]
[59]Exhibit G
[60]Exhibit G, CB 55
102 Mr Iain McLean, orthopaedic surgeon, provided a number of reports from 2017 to April 2020, including a further supplementary report of 3 June 2020.[61] He was provided with a range of reports and investigations.
[61]Exhibit H
103 Mr McLean agreed, in his first report of 2017, that it was highly probable Mrs Meech would come to total knee replacement surgery.
104 In his supplementary report of 2 June 2020, Mr McLean noted that a multiplicity of factors could lead to degenerative change in her knee, including age, family history, obesity, prior injury, limb alignment and the nature of the activities undertaken over the years. He noted that degenerative pathology may occur without symptoms. He noted Mrs Meech was active and exercised regularly, with maintained mobility up until the time of the fall. He said:
“Since that time the knee has been symptomatic and problematic, resulting in the requirement of Left Total Knee Replacement at an earlier time than would otherwise have been anticipated (comparison with right knee).
Undoubtedly, she had a vulnerable left knee, that given the passage of time (aging) may have come to needing a TKR.
However, it is impossible to predict purely on radiological studies to when that may have occurred.
Therefore, my conclusions remain that Ms Deborah Meech did suffer a specific injury at work on the 19.06.2012 that lead (sic) to the symptomatic and problematic left knee. The significant aggravation of the underlying constitutional changes has resulted in left THR at an earlier time than would otherwise have been considered.”[62]
[62]Exhibit H
105 At the conclusion of the evidence, Mr Middleton accepted the plaintiff had fallen on the landing and suffered a modest injury. He accepted that injury had necessitated treatment, including the arthroscopy in September 2012. This concession was sensible in the circumstances, given I am satisfied Mrs Meech suffered little in the way of symptoms in the left knee prior to the fall.
106 Mr Middleton submitted, in accordance with the evidence of Mr Simm,[63] that Mrs Meech had not suffered a severe injury, evidenced by the fact that she was able to work for the rest of the day, had only a week off after the arthroscopy and had resumed work, which was eventually more physically taxing than that which she had at the time of the fall. To the extent Mr Simm said the injury was not severe, I prefer the evidence of the treating practitioners, in particular Mr Byrne who was able to observe the effects of the injury upon Mrs Meech at an early time.
[63]T377, L25
107 Mr Middleton bore the evidentiary onus on the issue. He said the injury sustained in the fall was only minor and subsumed by the advance of the underlying degenerative condition which led to a total knee replacement in March 2019. He said it was clear from most practitioners that Mrs Meech would have come to a total knee replacement in any event, and that that surgery, and its consequences, could not be laid at the foot of the hospital.
108 Mr Seccull, at the conclusion of the evidence, did not seek to advance the proposition that Mrs Meech’s total knee replacement was a consequence of the fall. He accepted, at best, the fall advanced that surgery by some period. In the face of evidence, particularly of the treating surgeons, Mr Byrne and Mr Dillon, that concession was entirely appropriate.
109 In many cases in the personal injury jurisdiction, an injury causes an exacerbation of an underlying degenerative process, which in turn leads to pain and restriction in a pre-injury asymptomatic body function. In those circumstances, generally, liability for that pain and restriction lies at the foot of the party whose negligence caused the injury.
110 However, the circumstances of the injury suffered in the fall here are different. As detailed above, the overwhelming medical evidence is that such was the degenerative state of Mrs Meech’s left knee at the time of the fall, that it was inevitable she would have come to total knee replacement in any event. That, indeed, was the prediction of the surgeon who carried out the arthroscopy in 2012. In considering Mrs Meech’s left knee condition as at the present time, absent the fall, I am satisfied she would have come to total knee replacement, although that surgery was probably brought forward by a relatively short period than would otherwise have been the case. I am satisfied Mrs Meech’s entitlement to damages should not include an allowance for the total knee replacement, and the consequences of that surgery, other than some allowance that it was brought forward as a result of the fall.
In what sum should the Plaintiff’s pain and suffering damages be assessed?
111 Prior to June 2012, I accept Mrs Meech had not suffered any pain or restriction in the left knee, save as to complaints she made to her general practitioner on a few occasions.
112 I accept she was involved in a wide range of social and recreational activities, including gardening, bicycle riding up to 50 kilometres per week, gymnasium activities, social tennis, line and other forms of dancing, and walking. She was able to be involved in the activities of her grandchildren. She was a very active and engaged woman.
113 I accept her evidence that these activities were curtailed to a significant extent as a result of the fall. Although she was able to keep working and there was no evidence of any time off work until the arthroscopy in September 2012, I accept the fall aggravated the underlying degenerative condition in her left knee, producing symptoms and restrictions. That required treatment by her general practitioner, physiotherapy, and led to arthroscopic surgery which required her to take about a week off work. I accept that over the years from that time through until March 2019, she has been treated with a range of medication, including, at times, Endone, and other pain-relieving over-the-count medication, the application of Voltaren Gel and the use a TENS machine.
114 I accept Mrs Meech has had difficulty kneeling and squatting, suffered pain when climbing stairs and a range of social and recreational activities have been significantly affected. I accept that over the years, she has had difficulty doing the heavier aspects of housework, that her sleep has been affected and that although she still walks, she is unable to do so as freely or as long as before.
115 Mrs Meech has undertaken exercises as has been advised by the physiotherapist and has been able to return to work as a personal carer, albeit on reduced hours. The work is more physically taxing than her previous work at the hospital. I accept that after working, her left knee becomes swollen and painful.
116 I accept that to some extent Mrs Meech’s recreational and domestic activities have been restricted by a serious neck condition for which she had several years off work, although, up to the present time, I am of the view that those activities have been most affected by her left knee problem.
117 I was impressed by the evidence of Mr Meech’s husband, Mr John Meech. He described the family’s activities at Lake Laanecoorie, in which Mrs Meech participated, and the restrictions after her fall. This evidence supported what his wife had said about the restriction in her various activities. He observed swelling to her knee and was able to observe she was regularly in pain and discomfort. He described her as not being the woman she used to be.
118 There are a number of complexities in assessing pain and suffering damages in this proceeding. The first is to attempt to determine when the pain and restriction in Mrs Meech’s left knee ceased to be an aggravation as a result of the fall, and became subsumed by the predominant arthritic condition in her left knee, which led to the total knee replacement.
119 The second complexity is to assess damages for the fact that I am satisfied, from the medical evidence, the fall brought forward, at least over some relatively short period, the need for the total knee replacement.
120 Given I accept Mrs Meech’s evidence that the fall brought on pain and restriction in the left knee which continued through to the present time, I am of the view compensation ought to be awarded for the period from 2012 until approximately late 2018 when, according to radiology taken around that time, there was a significant increase in the rate of degeneration than had previously been the case. By the time of her further referral to Mr Dillon in November 2018, Mrs Meech was said to be struggling because of knee pain. At that point, Mrs Meech accepted the advice of Mr Dillon that the only appropriate course was for total knee replacement surgery.
121 Thus, damages to be awarded should take account of the period from 2012 until approximately the end of 2018, a period of six years; however, for a fit and active woman who was fifty-five years of age in 2012, the loss or restriction of all her various activities, the treatment, including arthroscopic surgery, and the pain and restriction she suffered over those years, was significant. I further take into account that as a result of the fall, the total knee replacement surgery was brought forward by a relatively short time. There should be a modest allowance for this. Mr Middleton submitted damages should be no more than $60,000. Mr Seccull submitted an appropriate sum was $200,000.
122 In all these circumstances, I assess pain and suffering damages at $110,000.
123 I will hear from the parties as to further orders, including costs.
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