Moggridge v The Benevolent Society

[2019] NSWSC 638

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Moggridge v The Benevolent Society [2019] NSWSC 638

Hearing dates:

26-29 March 2018; 4-5 April 2018; 20 July 2018; 21 August 2019

Date of orders:

03 June 2019

Decision date:

03 June 2019

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) Judgment for the defendant.

 

(2) The defendant is to file and serve written submissions in relation to costs by 17 June 2019.

 (3) The plaintiff is to file and serve written submissions in reply by 14 June 2019.

Catchwords:

TORT - Negligence - Liability - Vicarious liability - Whether the defendant carer failed to properly support the plaintiff while transferring him between chairs in a respite home - Whether the defendant provided the plaintiff with a recliner chair which was not fit for purpose

  Damages - Personal injury - Assessment of quantum - Costs of past and future care - Where the plaintiff has already been compensated for full-time care in a previous settlement - Where the plaintiff has moved overseas indefinitely

Legislation Cited:

Civil Liability Act 2005 (NSW), ss 5B, 5C, 5D, 15, 16

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48
Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343
Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528
Doherty v State of New South Wales [2010] NSWSC 450
Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1
Fox v Percy (2003) 214 CLR 118; 197 ALR 201
Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1
Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037
New South Wales v Doherty [2011] NSWCA 225
Pamment v Pawelski (1949) ALR 860; (1949) 79 CLR 406
Sharman v Evans (1977) 13 ALR 57; (1977) 138 CLR 563
Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427
Sutherland Shire Council v Major [2015] NSWCA 243
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Van Girvan v Fenton [1992] HCA 154; 175 CLR 327
Wyong Shire Council v Shirt (1980) 146 CLR 40

Category:

Principal judgment

Parties:

Paul William Moggridge (Plaintiff)
The Benevolent Society (Defendant)

Representation:

Counsel:
A Bartley SC with R Ingram (Plaintiff)
R Cavanagh SC with T Berberian (Defendant)

  Solicitors:
Commins Hendriks (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2014/35310

Publication restriction:

Nil

Witnesses

Background

Prior injuries

Prior stroke and compensation

Mrs Larsen

Respite care at the cottage

Marilyn Moggridge

Care plan

Arrival at the cottage

Pivoting

The fall

The plaintiff’s credibility

Credibility of Ms Williams

The plaintiff’s version of the fall

Ms Williams’ version of the fall

The expert on liability

The plaintiff’s submissions

The defendant’s submissions

(1) My findings – did the recliner chair move?

(2) My findings – did Ms Williams fail to support the plaintiff in the transfer from the commode chair to the recliner chair?

The plaintiff’s submissions

The defendant’s submissions

My findings

The content of the duty (the standard of care)

Breach of duty of care

The plaintiff’s submissions

The defendant’s submissions

Conclusion

Post accident

The plaintiff’s evidence

Mrs Larsen

The medical evidence

Report of Dr Zeman – rehabilitation specialist

Joint report of Drs Bodel and Pillemer – orthopaedic surgeons

Joint report of Drs Smith and Virgona – psychiatrists

Assessment of damages

General principles

The defendant’s submissions on damages

Economic loss

Prior Supreme Court proceedings

Non-economic loss

The plaintiff’s submissions

The defendant’s submissions

Consideration

Out of pocket expenses

Past care and future care

Past care

The plaintiff’s submissions

The defendant’s submissions

(1) Immediate post-injury care

(2) and (3) Past attendant care

The plaintiff’s submissions

The defendant’s submissions

Evidence

Conclusion

(4) After Mr Moggridge moved to Thailand – 2015 to present

The plaintiff’s submissions

The defendant’s submissions

Evidence

Conclusion

(5) Future commercial care

The plaintiff’s submissions

The defendant’s submissions

Evidence

Consideration

Result

Costs

Judgment

1. HER HONOUR: The plaintiff seeks damages for personal injuries sustained in a fall (“the fall”) that occurred on 29 April 2012 when he was in respite care at Rosemore Cottage (“the cottage”). Liability is strongly in issue.

2. The plaintiff is Paul William Moggridge. The defendant is the Benevolent Society. It is the owner and occupier and had the care, control and management of the cottage at the time of the plaintiff’s injury.

3. There are three main issues to be determined in this judgment. The first is liability, and the second and third relate to damages, namely whether the plaintiff is entitled to damages for non-economic loss and for past and future care.

Witnesses

4. The plaintiff relied upon his evidentiary statement dated 8 December 2015 (Ex A, CB 26-30). Marilyn Moggridge (the plaintiff’s former wife) provided three statements dated 9 March 2018, 27 March 2018 and 28 March 2018 (Ex A, CB 34-39). Julia Larsen, a long-time friend of the plaintiff, provided two statements dated 10 January 2018 and 28 March 2018 (Ex A, CB 31-34). Janis Williams, the plaintiff’s carer at the cottage, provided a report dated 4 April 2018 (Ex 4). The plaintiff and all the witnesses gave evidence and were cross examined.

5. Dr Brian Zeman, a consultant in rehabilitation medicine, provided a report dated 12 November 2014 and a supplementary report dated 20 January 2017 (Ex A, CB 334-345, 346-356).

6. Dr Selwyn Smith, a psychiatrist, provided two reports dated 18 December 2015 and 19 December 2017 (Ex A, CB 262-267, 271-274) and a joint report with Dr Angelo Virgona, also a psychiatrist, dated 15 March 2018 (Ex A, CB 423-432). Dr Virgona provided two reports dated 26 May 2016 and 13 February 2017 (Ex A, CB 381-396, 397-404). Drs Smith and Virgona also gave conclave evidence.

7. Dr James Bodel, an orthopaedic surgeon, provided two reports dated 9 November 2012 and 3 April 2014 (Ex A, CB 249-253, 256-259). Dr Roger Pillemer, also an orthopaedic surgeon, provided four reports dated 16 December 2014, 24 February 2015, 24 February 2015 (amended, p 2), and 12 January 2017 (Ex A, CB 362-375). Drs Bodel and Pillemer provided a joint report dated 9 February 2018 (Ex A, CB 414-422) and gave conclave evidence.

8. The plaintiff relied upon the expert report on liability of Mr Timothy White dated 3 March 2018.

Background

9. The plaintiff is currently 68 years of age. He married Marilyn Moggridge in 1978, and the two divorced in about 2015.

10. The plaintiff and his former wife lived in Bega on a farm, “Wolumla”, prior to the accident. Before moving to Bega, the plaintiff and his wife ran a café at Cronulla. In 2012, after the plaintiff suffered a stroke which is discussed in further detail below, he and his wife moved back to Cronulla into a property that had been adapted to accommodate his disabilities.

Prior injuries

11. Over the course of many years of surfing, the plaintiff suffered a number of injuries to his right shoulder. His shoulder injury was aggravated while building cattle yards on his farm.

Prior stroke and compensation

12. On 1 July 2008, the plaintiff underwent an operation on his right shoulder to repair his rotator cuff. On 7 July 2008, while at home following his discharge from hospital, he suffered a stroke which resulted in left hemiplegia. He brought proceedings against the hospital in relation to his injuries and was awarded a settlement, the details of which are set out later in this judgment.

13. The stroke left the plaintiff reliant upon the assistance of his wife, Ms Moggridge. He was able to feed himself, but required help to perform many other daily tasks. The plaintiff had been living with those injuries for over three and a half years when he was admitted to Rosemore Cottage in 2012.

14. Prior to his fall which is the subject of these proceedings, the plaintiff mobilised by way of his wheelchair and on his feet with the aid of a three or four-pronged walking stick (“his stick”). He was able to walk several steps by himself with standby assistance. He was also able to transfer from his wheelchair to a recliner chair or other piece of equipment by steadying himself with his stick and right leg, and then pivoting on his left leg. He learned this technique for transfer while recovering from his stroke at the rehabilitation unit of the Royal Prince Alfred Hospital. Ms Moggridge and Julia Larsen, a family friend, gave evidence of the plaintiff’s abilities prior to the fall.

Mrs Larsen

15. Mrs Julia Larsen provided two witness statements dated 10 January 2018 and 28 March 2018, gave evidence and was cross examined. She had been a friend of the plaintiff and Ms Moggridge for around 18 years. Mrs Larsen stated that she was aware of the plaintiff’s stroke in 2008. When the plaintiff and his wife moved from Bega back to Cronulla, she saw them on a regular basis. She estimated that she saw the plaintiff once or twice per week, often at his house in a domestic environment. Mrs Larsen observed that Mrs Moggridge was providing most of the plaintiff’s care during that period, with the exception of some morning care provided commercially by Home Care. It was Mrs Larsen’s observation that Mrs Moggridge was able to manage the plaintiff on her own. Mrs Larsen also observed that the plaintiff could pivot on one leg, which was of considerable assistance to his wife in facilitating his transfers, since he was and remains a large person. I shall return to Mrs Larsen’s evidence later in this judgment, as her observations of the plaintiff after the fall are of further relevance.

Respite care at the cottage

16. In 2012, the plaintiff and Ms Moggridge decided to book the plaintiff into a respite care facility for a fixed period of care from 23 April 2012. They chose Rosemore Cottage, a care facility in South-Eastern Sydney operated by the Benevolent Society. When booking the plaintiff into the cottage, Ms Moggridge had a conversation with an employee of the defendant, Ms Rupinder Sahota (T 181.7-20). Based upon their conversation, Ms Sahota prepared a carer profile for the plaintiff, which relevantly noted (Ex 5, p 5):

“30 April 12 14.08.8:35 – Rupinder Sahota

[The plaintiff] suffered from a stroke in July 2006 and paralysed his left side. He needs helps in transferring but does not need lifting. ([The plaintiff] was not given the correct medications and the surgery was sued for negligence). … [The plaintiff] also suffers from seizures but has not had one since the last 18 months. He has slight brain damage. He sleeps in the recliner as it’s easier for him to get in and out of it as compared to a bed.

2 May 12 11.34.24 – Rupinder Sahota

[The plaintiff] is suffering from depression and is on anti-depressants. He has slight brain damage and because of that he has short-term memory problems. He likes to sleep during the day and watches TV till late at night. [The plaintiff] is very friendly and is a people’s person. He is very flexible in his routine. He gets tired by lunch time. [The plaintiff] has recently started the Light and Easy meals to help him reduce some weight.”

17. The carer profile also records, “carer at risk: none known” (Defendant’s CB, p 4), whereas the recipient profile records “staff at risk: none known”; “recipient at risk (blank)” (Defendant’s CB, p 5). The accident/incident report and investigation form records the level of risk as being “extreme” (Defendant’s CB, p 22).

18. On 25 April 2012 at 7:15 am, the progress notes record, “Very stiff and difficult to transfer…chair not to be operated as reliable” (Ex 5, Defendant’s CB, p 14). On 26 April 2012, the progress notes of the cottage record, “[The plaintiff] was very unsteady on his feet” (Ex 5, Defendant’s CB, p 13).

Marilyn Moggridge

19. Ms Marilyn Moggridge, the plaintiff’s former wife, provided three witness statements dated 9 March 2018, 27 March 2018 and 28 March 2018. She gave evidence and was cross examined at the hearing. Overall, I found her to be a truthful witness and I accept her evidence.

20. It was Ms Moggridge who described the nature of the plaintiff’s condition to Ms Sahota at the cottage. At the time of the plaintiff’s admission, Ms Moggridge informed Ms Sahota that he had the following disabilities:

“a.   Paralysis down the left side

b.   Needs help transferring

c.   Needs help toileting

d.   Needs help showering

e.   Uses a stick to help transfer

f.   Medication is prepared daily using a webster pack

g.   Meals need to be cut up

h.   Sleeps in a recliner chair

i.   Can’t sleep in a bed

j.   Has leg spasms”

(Statement 9/3/2018)

Care plan

21. Ms Sahota also prepared a care plan in relation to the plaintiff’s stay at the cottage. The care plan was similar to the carer profile. It relevantly noted (Ex 5, p 1):

“Medical Conditions:

[The plaintiff] had a stroke in 2008 that paralysed his left side. He needs help in transferring but does not need lifting.

…

He also suffers from seizures but has not had one for the last 18 months.

He has slight brain damage. He sleeps in his recliner.

…”

22. The care plan also noted that the plaintiff had slight brain damage, that he slept in his recliner, and that although he communicated well enough, he was not always cognisant in that he often forgot things and suffered from poor short-term memory. In relation to his propensity to fall, the plan noted that the plaintiff had to be careful in new surroundings. His mobility and movement were noted to be fine. He was described as continent and able to use a commode, but sometimes required assistance. The plan stated that it would be good to keep a night lamp on to help him. He was also noted to require assistance to dress and undress, and sometimes to shower and use the toilet.

Arrival at the cottage

23. On 23 April 2012 as planned, Ms Moggridge drove the plaintiff to the cottage, where he was admitted at approximately 10:30 am. He and his wife had chosen the cottage because he did not want to be admitted to a hospital or an aged care facility. On arrival, the plaintiff was provided with information about the cottages and facilities at the Benevolent Society and then taken to his room. His evidence was that he was not aware of having undergone any formal assessment regarding his needs.

24. At the cottage, the plaintiff was assigned a one-on-one carer. The plaintiff informed the staff that he preferred to sleep in a recliner chair, as it was easier for him to get in and out of it than a bed, and it assisted with transfers. During the first few days at the cottage, the plaintiff complained to staff about the recliner chair which they had provided for him. He recalled that on the first night, the recliner remote was not working and the foot rest would not go up or down. He required assistance from staff to move his leg back onto the recliner when it slipped off the chair. He also required assistance with positioning his body in the chair to relieve pressure. It is common ground that the staff were unable to manually adjust his positioning on the recliner chair, as they were concerned the recliner would tip.

25. In an entry dated 29 April 2012 in the cottage’s event journal, Ms Sahota recorded the following (Ex 5, p 7):

“2 May 12 12:31.50 – Rupinder Sahota

29/4/12 – Phone call received from Cumberland care that last night was an active overnight. [The plaintiff] sleeps on the recliner and that recliner remote was not working and that the foot rest was not going up or down. Linda from Cumb care went at 4 am to check on the staff with two sets of batteries for the remote. The recliner remote did not work and the seat was upright and a coffee table was put in front of the recliner to rest [the plaintiff’s] feet. Follow up conversation next morning with [the plaintiff] to say that the recliner was not working. [The plaintiff] assured that it was fine and would make do. I asked him if he had a recliner at home that we could bring to the cottage as told by the carer but he said that the recliner at home was returned as it was not comfortable. I gave the care workers some ideas if they could lower the hospital bed and sit it up so that [the plaintiff] is not lying flat and can sit comfortably in the bed rather than sitting upright in the recliner chair. [The plaintiff] trialled it was using bed and felt quite comfortable in it.”

26. The plaintiff agreed that he told staff that he did not have a recliner at home. He said that as the recliner chair at the cottage was not working properly, he was told that he had to stay in bed.

Pivoting

27. After the plaintiff suffered the stroke, he underwent extensive rehabilitation at Royal Prince Alfred Hospital. When he was discharged, he was able to pivot on his left leg (Ex 3).

28. The plaintiff explained the process of pivoting as follows (T 35.39-50, 36.1-17):

“Q. Mr Moggridge, a couple of minutes ago you were demonstrating to her Honour about how you would lever yourself up and use your stick for support and you said that’s what you’ve been taught in rehab?

A. Yes.  Yes so you got to go to your strengths, your strengths has got to go, your good side’s got to go to the.

HER HONOUR

Q. To the what?

A. To the ‑ to come in and try and take my initial push up from my seat it’s got to be taken on my strong side which is the right side which has got to be facing the ‑ parallel with a chair.

Q. Where had you learned that?

A. RPA rehabilitation.

Q. Are they good there?

A. They’re very good.  They’re considered the best.

Q. The pivoting you describe on your left leg is something they taught you?

A. Yes.

Q. By the time you had this fall how do you think you were going in terms of being able to perform these manoeuvres?

A.  Well I was very good ‑ in actual fact you’re not allowed to ‑ they don’t release you from RPA until you can ‑ until you get these things down pat.  They even teach you how to get into a high car seat, if you understand what I mean.”

29. Mrs Moggridge gave evidence that even though the plaintiff was paralysed down his left-hand side, he was still able to transfer from one seat to another, be it a commode, recliner or wheelchair. To facilitate the transfer, the plaintiff would use his right (good) arm to stand with the benefit of his stick, and then pivot on his left (bad) foot into his new seat. He could perform this manoeuvre without direct physical assistance (Statement 28/3/2018 at [4]).

30. Counsel for both parties canvassed the plaintiff’s ability to transfer prior to the accident. In cross examination, Mrs Moggridge gave the following evidence (T 192.35-50; T 194.19-43):

“Q. Is it your evidence, is it Ms Moggridge, that prior to [the plaintiff] falling over in Rosemore Cottage, he was able to get up from the bed without being lifted?

A. He never slept in a bed. He could get up from a chair using his stick on the right hand side, on his good side, and his left leg which is the bad side, he was able to pivot on that leg to transfer.

…

Q. Going back to how you say he was as at the time he entered Rosemore Cottage, you say he was able to get up from his recliner chair using his sticks, is that right?

…

Q. As of the week, for example, before he went into Rosemore Cottage, were you the primary carer if I put it that way?

A. Yes.

Q. At that time you say he didn’t need to be lifted into bed by you?

A. I didn’t put him into bed but into a chair.

Q. In the chair then, sorry?

A. No, he could with my assistance and the assistance of his stick, he could pivot on the leg to transfer from chair to recliner chair and vice versa, commode chair.

Q. It might be described as one one-on-one care, that is, you were there, you were guiding him, supporting him, helping him but certainly not taking his weight, is that a fair statement?

A. At that stage I wasn’t taking his weight.

Q. That’s how he’d been for a while prior to going into Rosemore Cottage, is that right?

A. Yes.

Q. It’s fair to say that he didn’t need at that time, when he entered Rosemore Cottage, two people to lift him from chair to commode chair or bed or anything like that?

A. No. He could pivot on his bad side.”

The fall

31. In relation to the evidence surrounding the fall, Senior Counsel for the plaintiff reminded this Court of the decision of Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371:

“…I do not think that proof [that the plaintiff’s injuries were caused by a wet greasy substance on the floor] was enough to enable the jury to infer negligence on the part of the defendant: proof was necessary of some additional circumstances tending, for example, to raise a probability of its having been there long enough to be seen if reasonable supervision was practised, or to show that so many people were likely to use the lavatory in the preceding hour that closer control was called for, or that the dropping of some such substance was common or inherently likely to occur. But very little might have been enough. For the case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant: cf per Isaacs J, Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at p 178 … But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it. …”

32. This passage was approved in Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 8.

33. The key issues of fact to be decided in relation to the fall are firstly, whether the recliner chair moved causing the plaintiff to fall, and secondly, whether the defendant failed to provide support to the plaintiff in the transfer.

34. It was uncontroversial that the care worker who was assisting the plaintiff, Ms Williams, was employed by the defendant, and that the defendant was vicariously liable for any of her negligent acts or omissions in relation to the fall.

35. Ms Williams gave conflicting accounts of how the accident occurred. In a matter such as this, where determination of critical issues of fact will involve an evaluation of oral evidence of disputed events, it is well established that the process of fact finding should be informed as far as possible “on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; 197 ALR 201 at [31] per Gleeson CJ, Gummow and Kirby JJ.

36. It is common ground that on the day of his fall, the plaintiff showered and was being transferred from the commode to the recliner chair. A photograph showing a similar recliner chair is shown in Ex D and reproduced here.

37. Before I analyse the conflicting accounts as to how the accident occurred, it is appropriate that I record my findings on the credibility of the plaintiff and Ms Williams.

The plaintiff’s credibility

38. The plaintiff has a mild neurocognitive disorder as a result of his 2008 stroke. I have approached my task in these proceedings by taking into account that the plaintiff suffers from short-term memory loss, and I have made some allowance for it. Nevertheless, I have reservations in accepting some of his evidence. I observed the plaintiff carefully when he gave evidence and was cross examined. Dr Angelo Virgona, psychiatrist, recorded that the plaintiff could be vague about details and at times would return to themes repeatedly (CB 388, report 26/5/2016, p 8). My observations accord with Dr Virgona’s findings. One of the themes to which the plaintiff frequently returned was his opinion that Australian care was unsatisfactory. I accept his evidence where it is undisputed or corroborated by Ms Moggridge, Ms Larsen and/or the contemporaneous documents.

Credibility of Ms Williams

39. Ms Janis Williams was Mr Moggridge’s carer at the cottage and witnessed his fall. She no longer works for the defendant, and has not done so for a number of years. At the time of the fall, she completed a contemporaneous incident report and notes. Those documents were to a large extent consistent with her evidence in these proceedings. Her evidence was that she recalled the circumstances of the plaintiff’s fall clearly, as she was traumatised and felt she had “lost a client”. She had no reason to lie at the time of the event, and none at the time of these proceedings.

40. I also carefully observed Ms Williams as she gave evidence and during cross examination. Ms Williams was the author of contemporaneous reports written shortly after the accident. She admitted to having recent problems with her memory, as she has noticed that she is becoming forgetful (T 347.43). I accept her evidence as being reliable where it is corroborated by earlier written documentation. So far as her latter statement of 4 April 2018 is concerned, I accept her evidence where it accords with her earlier reports, or where her explanation logically fits with what is recorded there. There is one exception, and is that where she recorded in her earlier statement that the plaintiff was using a walking frame. On that issue, I prefer the evidence of the plaintiff, Ms Moggridge and Ms Larsen that the plaintiff cannot use a walking frame. I will explore that finding in further detail later in this judgment. Finally, at times when giving evidence, such as on the topic as to whether or not the plaintiff hit the recliner chair, Ms Larsen was prepared to accept that her more recent evidence was incorrect.

The plaintiff’s version of the fall

41. The plaintiff, in his statement dated 8 December 2015, briefly described the accident as follows (Ex 1):

“19 As the recliner chair was not working, I was transferred to a bed for sleeping.

20. I was told by the staff that the recliner seemed to be working again and so I started to use it again.

21. On the day of my fall, following my shower, I was being transferred from the commode to the recliner. During the course of the transfer, I suffered a fall as the recliner was not locked into position. The recliner moved from under me as the transfer was being conducted by a nurse/care worker. I called out as I fell. The care worker was unable to provide support to me and fell on top of me.”

42. The plaintiff gave the following evidence in cross examination (T 70.40-45; T 72.10):

“Q. You hadn’t put your hand up on the recliner chair before you started to fall, had you?

A. Yeah, I stood up, I put my hand on the back of that other recliner - on the top of the recliner, and then attempted to do a pivot turn into the recliner chair and I fell. It slid away from me.

…

Q. What happened was that you fell towards the chair, and in effect bounced off the chair onto the floor, I suggest to you?

A. No, the chair moved away from.

43. The plaintiff was adamant that because he did not have his stick with him as an aid with which to balance himself, he placed his band on the back of the recliner chair, which slid away from him. The plaintiff said that he did not know where his stick was at the time. He denied that he had a walking frame with him at any point, as he cannot use one (T 34.38-50). The plaintiff later explained in cross examination that it would be impossible for him to use a walking frame because he “only has one arm”, and that he has never used a walking frame (T 66.15-20). At another point, he said that he had not had a walking frame with wheels in his home prior to late 2010 (T 84.10), because his gait swings from the hip and does not allow him to use a walking frame.

44. Ms Moggridge provided the following evidence during cross examination (T 184.47-50, 185.1-15), which supports the plaintiff’s evidence that he did not use a walking frame:

“Q. You have read, haven’t you Mrs Moggridge, the notes and records, the incident report of the Benevolent Society and the notes [from] the Benevolent Society as to how your husband’s accident occurred?

A. No I haven’t.

Q. You’ve never read them, is that what you say?

A. That’s correct.

Q. They’ve been explained to you haven’t they?

A. Not in length, no.

Q. You know, don’t you, that in those documents is a reference to your husband using a walking frame immediately before his accident, don’t you?

A. No, I don’t know of that.

Q. It’s never been suggested to you, is that what you’re saying?

A. If I may say, I have never heard of my ex-husband using or needing a walking frame, as he cannot use one.”

45. The defendant noted several inconsistencies with the plaintiff’s evidence concerning the wheeler. As part of the plaintiff’s case in relation to his stoke, he was visited by an occupational therapist, Ms Glynis Flanagan, who noted that there was a wheeler in his home. The plaintiff relied on Ms Flanagan’s report, dated 13 April 2010, as part of that case. The defendant argued that the occupational therapist was only one of many people who the plaintiff has claimed, for the purposes of these proceedings, to have wrongly recorded information about him. The defendant noted that in the plaintiff’s first case, he claimed for the cost of a wheeler and its replacement.

46. On the available evidence, I accept the plaintiff and Ms Moggridge’s evidence on this point of fact. Their evidence was that the plaintiff was physically unable to use a walking frame at the time of his fall, and relied on his stick. Hence, I find that the plaintiff did not use a walking frame while he was at the cottage.

47. The plaintiff’s evidence was that he could not be entirely sure whether the care worker was standing behind him or to his side, but he was sure she ended up on top of him in the fall. Once he was on the ground, he noticed pain in his knee, leg and up his left side. The plaintiff said that he was in too much pain to notice whether the care worker was injured (T 35.10).

Ms Williams’ version of the fall

48. Ms Janis Williams was the nurse/care worker on duty during the plaintiff’s stay at the cottage. She was on duty caring for the plaintiff at the time of the accident. She relied upon her evidentiary statement dated 4 April 2018 (Ex 4), and was cross examined. She has been a carer since August 2008, and set out her qualifications in her affidavit at [16]. I need not reproduce them other than to say that she is a qualified and experienced carer. She has attended courses arranged by the defendant on a variety of different subject such as caring, manual handling and work, health and safety. She has kept her qualifications up to date.

49. In her evidentiary statement, Ms Williams described the recliner chair and the accident (Ex 4, [81]-[105]). She says that she was with the plaintiff when he fell, and that she recalls the incident as follows:

“81. I have been informed and understand that the plaintiff alleges that he fell because the wheels on the reclining chair were not locked.

82. The recliner was located in one corner of the lounge room at the cottage. It never left that spot.

83. The lounge room was carpeted.

84. It was a huge, heavy recliner which did not have to be moved.

85. I recall we had difficulties moving it to try to clean and get things out from behind it. It was not easy to move.

86. I believe that there is absolutely no way the recliner could have moved as alleged.

The Incident

87. I was with the plaintiff when he fell and I recall the incident.

88. The plaintiff fell while he was positioned in between the recliner chair and the sofa.

89. The recliner was to his left and the sofa to his right. There was only about a metre between them.

90. He was using his walking frame to move from a commode chair to the recliner.

91. I would have wheeled him into the lounge room on the commode chair and then stopped just in front of the recliner so that he had enough room to get up and out of the commode chair and onto his feet, which he was capable of doing.

92. Once he was on his feet, I moved the commode chair back from behind him and out of the way.

93. I then got into a position in front of him so that I could support him as he twisted around to sit in the recliner.

94. I tried to steady him with my hands on either side of his hips to help him twist at a slow and measured pace.

95. It was while in his position he suddenly seemed to suffer a spasm.

96. I believe that it started in his right leg. It then moved to his whole body. His whole body seemed to be shaking and there was nothing I could do to steady him or stop the shaking.

97. He was unable to stay standing and fell to the floor between the recliner and the sofa.

98. Given his size and weight, there was nothing I could have done to stop him from falling.

99. In the previous week, I had never seen him suffer any spasm or similar and had no reason to suspect or anticipate that a spasm would occur on the morning of 29 April 2012.

100. I did not fall on top of him.

101. I was standing in front of him when he fell.

102. He fell to the side.

103. The recliner did not roll away and had nothing to do with the fall.

104. The plaintiff did not fall against the recliner and his weight did not push it along the floor. He fell directly onto the floor and not onto the recliner. He did not fall because the recliner moved.

105. Straight away after the incident happened, I did four things:

(a) I called the ambulance.

(b) I reported the incident to the office.

(c) I completed the Incident Report.

(d) I entered the incident in the communication book.”

50. In her clinical notes, Ms Williams recorded that after finishing his shower at 11:45 am, the plaintiff insisted on sitting in his recliner chair even though she had advised him that it was not working. Ms Williams then wrote that in the process of transferring the plaintiff from the commode chair to his recliner chair, his leg began to shake. The shaking stopped for a moment and then started up again. Ms Williams wrote that the plaintiff was facing the chair, and was unable to turn his body around. She was unable to hold him. He was initially holding his walking frame, but could not steady himself with it once his leg began to shake. He then slipped downwards onto the floor and yelled out that he thought he had sustained damage. Ms Williams wrote that she put a pillow under the plaintiff’s head and covered him with two blankets before calling the ambulance and the centre. She recorded that she then left everything the way it was and put the sofa back in the right position, as the ambulance officers had moved it in order to get the stretcher in.

51. Her notes record (Ex 4, p 45):

“Was going to strip bed but he may come back later. Left everything. Put sofa back. Ambos moved them to get stretcher in. [The plaintiff’s] envelope in drawer in his room.

1.15 Went [to attend to another patient].

OMG ‘What a Day’ I’ve had.

1.35 Put last lot washing on.

2.00 Surely my day can’t get any worse!!

Sent    –    with [the plaintiff] - Ambos

His Web/Pack Ph, Charger

Tooth w container

Reading Glasses.”

52. The report then recorded at 2:30 pm that Ms Williams had a conversation with Ms Sahota and Ms Moggridge. Phone numbers were left with St George Hospital so that the hospital could ring when the plaintiff was ready to be picked up (Ex 4, p 46).

53. After the accident occurred, Ms Williams prepared a contemporaneous report titled “Accident/Incident Report & Investigation Form” dated 29 April 2012. It reads (Ex 5, p 21):

“Time of incident: 11:45

…

5. DESCRIBE THE INCIDENT: What Happened?

Transfer commode to recliner

his leg was shaking muscle spasms

couldn’t hold him, he couldn’t

hold on either to his walking frame

dropped to floor then yelled in pain.”

54. According to Ms Williams, the plaintiff fell while he was positioned in-between the recliner chair and the sofa. The recliner was to his left and the sofa to his right. There was only about a metre between them. He was using his walking frame to move from a commode chair to the recliner. During cross examination, Ms Williams gave the following evidence on the topic as to where Mr Moggridge was when he fell (T 397:1-25):

“Q. Yes, and you’ve said in paragraph 88 of your statement that he fell when he was positioned in-between the recliner chair and the sofa?

A. He wasn’t positioned there, he fell there.

Q. Why did you say it in your statement?

A. We were standing there but he didn’t – he fell there, he fell in between the sofa and the recliner, that’s where he ended up.

Q. It was you that positioned him, wasn’t it, not him?

A. That’s correct.

Q. What, on earth, was he doing being positioned between the recliner chair?

A. Well, I didn’t know he was going to fall, did I?

Q. You were going to approach the recliner chair from a position between the recliner chair and the sofa, were you?  Is that how you were going to do it?

A. No, you’re supposed to turn around and put his bum onto the thing and it didn’t happen.

Q.  You were just leaving it up to him to get there, weren’t you?

A. I was not.  He couldn’t do it anyway.  That’s what I’m there for, that was my job and it didn’t happen, unfortunately.”

55. Ms Williams said that she wheeled the plaintiff into the lounge room on the commode chair and then stopped just in front of the recliner so that he had enough room to get up from the commode chair and onto his feet, which he was capable of doing. Once he was on his feet, she moved the commode chair back from behind him and out of the way. She then got into position in front of him, so that she could support him as he twisted around to sit in the recliner. Ms Williams said that she tried to steady him with her hands on either side of his hips to help him twist at a slow and measured pace. It was while he was in this position that he suddenly seemed to suffer a spasm.

56. Ms Williams said that she believed that the plaintiff’s spasm started in his right leg. It then moved to his whole body. His whole body seemed to be shaking and there was nothing she could do to steady him. He was unable to remain standing, and fell to the floor between the recliner and the sofa. Given the plaintiff’s size and weight, Ms Williams said there was nothing she could have done to stop him from falling. Ms Williams said that in the week preceding the fall, she had never seen him suffer any spasm or similar, and had no reason to suspect or anticipate that a spasm would occur on the morning of 29 April 2012. Ms Williams said that she did not fall of top of him. She was standing in front of the plaintiff when he fell, and he fell to the side.

57. Ms Williams denied in her statement that the plaintiff fell because the recliner moved. She said he did not fall against the recliner chair, and that his weight did not push it along the floor. He fell directly onto the floor.

58. However, Ms Williams provided inconsistent oral evidence as to whether the plaintiff hit the recliner chair during his fall. During examination in chief, Ms Williams provided the following evidence (T 287.5-25):

“Q. You say he knocked the thing, and her Honour said ‘You mean the recliner’, so you knocked the recliner, is that what you’re saying?

A. He went to bang it.

HER HONOUR: He did.

CAVANAGH: Yes, he did.

Q. You’re banging your hip; do you mean his hip came in contact with the recliner?

A. Yes.

Q. Did the recliner move when his hip came in contact with it?

A. No.”

59. During cross examination, Ms Williams then said (T 402.5-20):

“Q. Yesterday you told the Court that he did hit the recliner?

A. Well, he hit something to break it ‑ break his hip.

Q. Look, really, Ms Williams, I don’t want to be critical of you but you’re just making up answers as you go along, aren’t you?

A. I am not making up answers, sir.

Q. Yesterday you said he hit the recliner, in your statement you said he didn’t hit the recliner. Which one’s true, the evidence you’ve given orally or the evidence in your statement, which one’s true?

A. It’d be the one in my statement, the one in my statement.

Q. Why did you say yesterday that he hit the recliner?

A. I thought he hit the ‑ he hit something coming down.

Q. You’ve got no memory of this at all really Ms Williams, have you, you’ve got no memory whatsoever, be truthful –

A. I am truthful sir.  I don’t make up stories.  It’s my job, I love looking after old people, I always have, and I don’t want to harm anybody.”

60. Ms Williams then gave the following evidence at the hearing during examination in chief (T 284.1-14):

“Q. Can you just describe where you were when he started to fall, that’s in relation to the plaintiff, or the walking frame, or the recliner chair, or just describe where you were?

A. I was in front of him.

Q. What were you doing?

A. I was guiding him to the chair.

Q. How were you guiding him?

A. With the walking frame.

Q. Just describe what you were actually doing?

A. Well he’s pushing it and I’m pulling it towards the chair.”

61. However, later in cross examination, Ms Williams said (T 391.29-39):

“Q.  He was pushing and you were pulling the walking frame; is that what you’re saying?  It’s not right, is it?

A.  No, it’s not right.

Q.  Why did you say it?  Were you just saying anything?

A.  No, it’s the way sometimes when they’re – you do it the easiest way for them.  Sometimes we might look ridiculous but if it’s easier for him, or for both of us, that’s the way it’s done.  So, I would have pulled him, he’s coming with me—”

62. The exchange with Ms Williams continued (T 394: 25-50):

“Q. How many steps did he take using the walking frame before he fell?

A. I don’t know.

Q. Was it five, six?

A. It’s not many, no it wouldn’t be that many at all. I mean it’s only a small area.

Q. Would it have been three or four perhaps?

A. Yes. Not many.

Q. But you’d agree with three or four?

A. Yes.

Q. When you started to transfer him to the recliner chair, you started with him being three or four steps, or more, away from the recliner chair?

A. The recliner chair, it wasn’t – it was just like that, as I said, it wasn’t far at all.”

63. During cross examination, Ms Williams further conceded that on this occasion, the plaintiff may have used the recliner chair itself as support for his right arm in place of the support he would have ordinarily received from his stick (T 399.44-50; T 400.1-5). When she was initially asked whether the recliner chair had wheels, Ms Williams said that she did not recall. However, she was of the view that the chair never moved. When asked about whether she locked the wheels on the recliner chair, Ms Williams said that she did not (T 400.25-T 402.15-25):

“Q. Let me suggest to you that on this occasion, he used the recliner chair itself with his right arm to provide the support that he normally got from his quad stick. Do you remember that?

A. I can’t remember, but I think that could be true, yes.

Q. Let me ask you about the recliner chair.  Did it have wheels?

A. Can’t recall.

Q. Did you ever inspect it to see whether it had wheels?

A. You didn’t need to, it didn’t move.

Q. So do you say it didn’t have wheels?

A. I’m not saying it didn’t have wheels, it never moved.

…

Q. Did you lock the wheels on the commode chair?

A. He was already out of the commode chair, so if I used it I would have locked it.  You don’t put him on and lift him up when it’s not in lock because it moves.

Q. Did you lock the wheels on the recliner chair?

A. Are you talking about the seat that he sits in?

Q. Yes.  The recliner chair.

A. It doesn’t move.

Q. Is that because it doesn’t have wheels?

A. It’s because it’s a big fat thing that doesn’t move.

Q. But if it had wheels you would have noticed it, wouldn’t you?

A. If it had wheels it still didn’t move.

Q. You didn’t lock any wheels on the recliner chair?

A. On the big seat, no.  You didn’t need to, it didn’t move.

Q. What I suggest to you happened was that he was supporting himself in the recliner chair, with his right hand on the top of the back of the recliner chair and the chair moved.  Do you remember that happening?

A. It most certainly didn’t move, sir.

Q. But you don’t remember whether it had wheels or not?

A. No.

Q. You certainly didn’t lock those wheels; did you?

A. No.

…”

64. Ms Williams gave evidence that in addition to the plaintiff’s whole body shaking, he appeared to experience something “like a seizure” (T 398.1-5). Ms Williams qualified her statement by saying that she did not mean to assert that the plaintiff had in fact had a seizure (T 398.10). Ms Williams acknowledged that if the plaintiff had in fact been suffering a seizure, she would have been required to inform the ambulance officers that it had occurred (T 402.35).

65. Ms Williams gave conflicting accounts in relation to the accident. In her written statement, she indicated that the plaintiff had not come into contact with the recliner chair during his fall. However in oral evidence, Ms Williams indicated that the plaintiff did come into contact with it. It is apparent that Ms Williams’ current memory of the accident is not altogether clear. Ms Williams also gave oral evidence that she did not recall whether or not the recliner chair moved during the accident. In cross examination, she stated that she could not recall whether the recliner chair had wheels.

66. In the cottage’s event journal, Ms Sahota recorded (Ex 5, p 7):

“29/4/12 – Phone call received from the cottage that [the plaintiff] had a fall in the cottage while being transferred from the wheelchair to the recliner chair and had possibly hurt his knee. The ambulance was called by the careworker and [the plaintiff] was taken to St George Hospital for check ups. Spoke to the carer and reassured her. She had some concerns about the whole incident. Careworker filled out the incident report form and the Manager was informed about the whole situation. Carer demanded the incident report as she wanted to know the careworker’s side of the story. Incident report was emailed to the carer. Standard procedures were followed. Conversation had with the carer about [the plaintiff] and she mentioned that the hospital is still doing some tests on the knee and it’s still a bit unclear as to what is going to happen next.”

67. In the nursing notes, Ms William recorded (Ex 5, p 19):

“11.45 [The plaintiff] had just finished having his shower. Insisted wanted sit on recliner said it doesn’t work still wanted to go there. From commode to recliner his leg started shaking stopped for sec then started up again. Facing chair couldn’t turn. I couldn’t hold him. He was holding his walking frame. He couldn’t do that either. Started slipping downward where he yelled saying thinks he’s done same damage. Put pillow under his head threw (2) blankets ova him called ambo’s plus call centre.”

68. The ambulance report was unsurprisingly consistent with Ms Williams’ version of events, as it was Ms Williams who called the ambulance. The report is hard to decipher but identified the plaintiff’s chief complaint to be a left knee injury. Under the heading “Patient/Incident history”, the report reads (Ex 8):

“…(illegible) respite nurse P on floor states that he had a … fall moving himself from the shower chair to a normal chair. P felt pain to L knee instantly and a pop, o/e mild swelling to L knee. P denies any other injuries, currently in respite due to return home tomorrow. L side P details from CVA, no new deficits noticed…”

69. The ambulance report does not mention the plaintiff’s use of a walking frame or a stick. As a result of the fall, the plaintiff sustained a fracture of the left hip and of the medial femoral condyle of the left knee, and was transported to St George Hospital.

The expert on liability

70. The plaintiff relied upon a report of Mr Timothy White dated 31 March 2018. He reviewed photographs (Ex D) of a recliner chair that was mounted on four swivelling castors. Although there had been some doubts that the photographs were of the actual recliner chair, counsel for the plaintiff confirmed that the photographs do show the recliner chair involved in the fall (T 273.1).

71. The chair was fitted with four castors. It was Mr White’s opinion that two of the four castors which were fitted to the rear of the chair were lockable, in that they were fitted with levers to actuate brakes that prevented rotation of the wheels.

72. Mr White was unable to source an exemplar rear castor during preparation of his report. He therefore concluded at [14] that he could not provide particulars in relation to how actuation of the lever of the recliner chair’s rear castors would in fact brake or lock the rotation of the wheels. However, he was of the firm opinion that the photographs he had been provided showed evidence that the two rear casters on the recliner chair were fitted with a brake or lock. When applied, those locks (if performing more or less as they did when the castors were new) would likely prevent the wheels of the castors from rotating when the chair was subject to a sideways or rearward force.

73. The photograph and the contents of Mr White’s report indicate that the recliner chair had wheels underneath it. However, as the expert did not physically inspect the recliner chair other than through the photographs, he was not in a position to express an opinion as to whether the wheels or their locks were in working condition, nor whether the recliner chair could be moved.

The plaintiff’s submissions

74. Paragraph 8 of the statement of claim pleaded:

“Particulars of Negligence

(a)   Failed to ensure that the wheels of the rolling recliner were secured or locked prior to transfer.

(b)   Provided a recliner that was not fit for the purpose for which it was being used.

…

(i)   Failed to take any, or any proper, regard for the health and care requirements of the plaintiff.

(j)   Failed to take any, or any proper, regard for the safety of the plaintiff.

…

(u)   Continue[d] to use recliner or remote control when aware the recliner and/or remote control were not in working order.

…

(y)   Fail[ed] to replace faulty recliner with a working recliner.

…

(bb)   Failed to provide a recliner which would not move or become unstable when the plaintiff was being transferred into it.

(cc)   Failed to prevent the recliner from moving (or remaining immobile) when the plaintiff was being transferred into it.

…”

75. It was the plaintiff’s case that as he was being assisted in transferring from a commode chair to the recliner chair, he placed his hand upon the back of the chair to help balance himself. He did not have the use of his stick. The recliner chair moved, unbalancing him and causing him to fall to the ground, where he sustained injuries. In the process, Ms Williams let go of him and fell on him.

76. The plaintiff argued that the wheels on a commode or recliner chair needed to be locked for the purposes of safely transferring a person from equipment like a commode to a recliner chair. Both the photos (Ex D) and the expert report of Mr White (Ex C) showed that the recliner chair had wheels which could lock the chair into place and prevent it from moving. However, the plaintiff argued that the recliner chair’s wheels were either not locked or not able to be locked because it was defective. The recliner chair was faulty in a number of respects, many of which were noted in the cottage’s documents (Defendant’s CB, pp 7, 13-15). The chair’s defects were serious enough that the plaintiff had to be changed from sleeping in the chair to the bed. The plaintiff argued that Ms Williams ought to have at least locked the chair’s wheels, or in light of the chair’s condition, removed it from use entirely.

77. The plaintiff submitted that the defendant had direct responsibility for providing proper equipment to the residents of the cottage, including the recliner chair. The plaintiff argued that the recliner chair moved and/or was defective, and must have been so for some time.

78. Because the chair was in constant use, the plaintiff argued that the clear inference was that the defendant either knew about its condition and did nothing, or did not notice it. The defendant presented no evidence that there existed any system of inspection or maintenance of the chair. Ms Williams simply insisted that the chair could not and did not move. Presumably, Ms Williams represented the best evidence the defendant could put forward on the issue of the chair’s condition. The plaintiff argued that the defendant’s failure to provide any physical evidence about the chair supports the plaintiff’s case that no such evidence exists. The plaintiff argued that on the available evidence, the proper finding should be that the recliner chair was defective.

79. Further, it was the plaintiff’s evidence that he usually relied on his stick. Ms Williams gave evidence that the plaintiff was using a walking frame on wheels. The plaintiff argued that her evidence made no sense, as the plaintiff unequivocally denied ever using a walking frame on wheels, and gave consistent evidence concerning the central role his stick played in his mobility. Ms Moggridge was also adamant that the plaintiff had never used a walking frame with wheels. The plaintiff asserted that if, in spite of the evidence to the contrary, the defendant still insisted that the plaintiff was using a walking frame on wheels during his admission to the cottage, its use was clearly inappropriate for the plaintiff’s needs, since he had a paralysed left arm.

80. The defendant also asserted that the plaintiff fell because his body began to shake. However, the plaintiff argued that Ms Williams’ evidence on that issue was both inconsistent and exaggerated. The plaintiff denied that he suffered from any degree of shaking during his stay at the cottage. In any event, the plaintiff argued that if he had been prone to such bouts of shaking, his condition should have been re-assessed by the defendant.

81. When explaining how he fell, the plaintiff described using the back of the recliner in place of the stick, after which the recliner “slid away” (T 34.5). The plaintiff argued that under circumstances where he did not have the support of his stick, it was all the more important to his safety that the recliner chair be stable.

82. On the available evidence, the plaintiff concluded that the proper finding should be that the recliner chair moved during the plaintiff’s transfer to it, and that the defendant was liable for the plaintiff’s injuries caused by the chair’s movement.

The defendant’s submissions

83. The defendant submitted that in order to find for the plaintiff, the Court would need to:

1. reject the evidence of Ms Williams completely, because on any view her version cannot stand with that of the plaintiff;

2. find that, contrary to the evidence of Ms Williams, the recliner chair moved;

3. find that the chair moved because of the negligence of the defendant, in circumstances in which there is no evidence, either from the plaintiff or the defendant, that the recliner chair moved at any earlier stage, or that there was any reason why the recliner chair would suddenly move at the time of the plaintiff’s fall;

4. find that the contemporaneous incident report is simply false;

5. find that the notes recorded by Ms Williams on the day of the incident were also simply false;

6. find that the information recorded in the NSW Ambulance report is false; and

7. find that the statement by Ms Williams in which she described what happened is also false.

84. To a large extent, the plaintiff’s case on liability depends upon the Court rejecting the evidence of Ms Williams as well as rejecting as false, wrong or inaccurate all of the contemporaneous documents completed at the time of the incident, as well as almost all of the records of the care facilities which the plaintiff attended subsequent to the incident.

85. The plaintiff gave evidence to the effect that he fell because the recliner chair moved. Ms Williams, who witnessed the fall and completed both an incident report on the day and an entry in the facility’s notebook as to how the incident occurred on the day, says that the chair did not move. She was there and gave evidence that she had a clear recollection of the incident. Her evidence was that the chair was so huge and heavy that staff had difficulties moving it to try to clean and get things out from behind it.

86. Ms Williams was uncertain about some matters about the plaintiff’s stay at the defendant’s facility. Her uncertainty must be viewed not only as completely natural, but as a demonstration of her honesty. The questioning during cross examination about her statement took the same form as it generally does in common law cases when parties rely on extensive statements. Even then, there was no doubt of Ms Williams’ certainty that the chair did not move. She saw what happened. She says that the plaintiff did not fall as he alleged.

87. Furthermore, there are two documents completed on the day of the fall which are inconsistent with the plaintiff’s case. Ms Williams was the person who called the ambulance and provided the ambulance with the information about what had happened, which is again consistent with what she has always maintained occurred.

88. The plaintiff remained in the facility for six days prior to the incident, using the same chair on a daily basis and moving in and out of it a number of times a day. At no time did he ever suggest that the chair had moved. On his own evidence in this case, he agreed that he did not observe it move prior to the fall. Additionally, his description of how he was using it for support, leaning over and holding onto the back, would seem to be one of the less likely ways in which the chair might have started to roll. The chair was plainly very heavy. The plaintiff did not suggest that the chair in some way tilted when he placed his hand on its back. He suggested that it moved on its wheels. The defendant argued that even if the plaintiff’s description of how he was leaning on the chair were to be accepted, it is unlikely that it would have caused the chair to move from its base.

89. Finally, the defendant noted the plaintiff’s references to the chair being “defective”, as if those defects had something to do with the chair’s capacity to slide or its likelihood of moving. In fact, the references in the cottage notes to the condition of the chair concerned only possible issues with its recliner operation. The defendant argued that those could have nothing at all to do with the incident which is the subject of these proceedings. Where the plaintiff used the terminology “defective” to describe the chair, it was clearly not in a manner which was causally relevant to his fall.

(1)   My findings – did the recliner chair move?

90. Prior to the plaintiff’s fall, the defendant’s records noted a complaint on 23 April 2012 that the recliner remote was not working, the foot rest was not going up or down and the recliner chair would not recline. At 4:00 am that day, an employee of the defendant replaced the batteries for the recliner chair remote control, but it still did not work. The recliner chair remained upright. A coffee table was moved in front of the recliner chair so that the plaintiff could elevate his feet. In a follow-up conversation the next morning with the plaintiff, he was told the recliner chair was still not working. The plaintiff assured staff that it was fine and that he would make do.

91. Nowhere in the records or the evidence, other than that of the plaintiff, is there a recorded complaint that the recliner chair moved. The plaintiff said that prior to the fall, he had been told that the recliner chair seemed to be working, which is why he began to use it again. That statement is not correct. The problem with the recliner chair remote control had not been repaired, and the foot rest still couldn’t go up or down. It was the plaintiff who insisted on sitting in the recliner chair even though Ms Williams advised him that it was not working.

92. It is common ground that at about 11:45 am, Ms Williams was assisting the plaintiff to transfer from a commode chair to the recliner chair. What occurred during the transfer is in dispute. The plaintiff said that he placed his hand upon the back of the recliner chair to help balance himself. He did not have the use of his stick. He says that the recliner chair slid away, unbalancing him and causing him to fall to the ground.

90. Ms Williams conceded that the plaintiff, with his right arm, used the recliner chair itself as support in place of the support he would have ordinarily received from his stick. Hence, it is my view that at the time of transfer, the plaintiff did not have the use of a walking frame or stick.

91. It was Ms Williams’ evidence that she and the plaintiff were approaching the recliner chair “[o]n an angle, because it’s the chair and the sofa that’s there, it was up to him, we tried to move his, spun around and get him to lean, so get turn around, put his bum and walk in backwards” (T 392.31-33). Ms Williams was walking backwards as she sought to help the plaintiff to position himself into the recliner chair (T 393.7). She said she was steadying him with her hands on either side of his hips when he suddenly seemed to suffer a spasm that started in his right leg. The spasm stopped and then started again so that the plaintiff’s entire body began to shake. He could not turn, and she could not hold him due to his size and weight. He fell to the side while he was positioned in between the recliner chair and the sofa (T 393.42-48). As she said, “You are supposed to turn around and put his bum onto the thing and it did not happen” (T 397.15-21). She was helping him in the way he had required while in her care, and she did not leave the transfer up to him (T397.15-21).

92. Mr White, by looking at the photograph, observed that the recliner chair had four wheels and castors. He was unable to inspect the recliner chair, so he could not proffer a view as to whether the wheels and castors were in working order nor whether the recliner chair could move in the way alleged to have occurred during the fall.

93. The recliner chair was positioned on carpet. Ms Williams was adamant that the recliner chair did not move because it was huge and heavy. It was, she said, “a big fat thing” (T 400.35). Cottage staff had difficulty moving it to try to clean and remove things from behind it. According to Ms Williams, even if the recliner chair had wheels, it still did not move. She explained that it was not necessary to lock the wheels on the recliner chair because it did not move. Although the recliner chair had wheels, the expert was unable to proffer an opinion as to their function or the chair’s mobility. I prefer and accept Ms Williams’ evidence as to how the plaintiff fell, and I find that the recliner chair did not move.

94. The plaintiff’s allegations of negligence, as set out in paragraph [72] of this judgment, have not been made out. The plaintiff insisted on sitting on the recliner chair even though the remote control did not work and he had been told not to use it. During the plaintiff’s transfer from the commode chair to the recliner chair, the recliner chair did not move and it was not unstable.

(2)   My findings – did Ms Williams fail to support the plaintiff in the transfer from the commode chair to the recliner chair?

98. The plaintiff relies on the following particulars of negligence.

The balance of paragraph 8:

1. “…

2. (l)   Failed to take any, or any proper, regard for the health and care requirements of the plaintiff.

3. (m)   Failed to provide support, or proper support, to the plaintiff in transfer.

4. …

5. (o)   Fail[ed] to, or to adequately, transfer the plaintiff from the commode to the wheelchair.”

99. Senior counsel for the plaintiff explained that these particulars of negligence allege that the cottage had an ongoing obligation to continue to assess the plaintiff’s needs if they changed during the course of the time that he was at the cottage. The plaintiff does not complain that he should not have been at the cottage, or that he was not properly assessed upon admission (T 274.44-49).

100. Alternatively, the plaintiff claims that based upon Ms Williams’ version of events, the defendant was negligent.

The plaintiff’s submissions

101. The plaintiff argued that whatever may have been his condition when he and his wife arranged his stay at the cottage, once the plaintiff arrived, the defendant knew or ought to have known that there was a risk of him falling, particularly during transfers.

102. According to Ms Williams, the recliner chair was some distance away from the commode chair and straight in front of it, when it should have been to the side at right angles. Ms Williams described facilitating the plaintiff’s transfer by pulling him up while standing in front of the recliner chair, then taking a number of steps forward with her hands over the plaintiff’s hands on the wheeled walker frame. The plaintiff said that Ms Williams described throwing the frame to the side when the plaintiff began to fall, thereby denying the plaintiff support and further causing the plaintiff to fall.

103. The plaintiff argued that the fact that there was a risk of falling, and that the plaintiff fell while under the care of Ms Williams, is of itself grounds for finding that all proper or reasonable care was not taken in transferring him. Had Ms Williams taken proper or reasonable steps, the plaintiff would not have fallen.

104. The plaintiff submitted that while the evidentiary maxim “res ipsa loquitur” may not strictly apply in the circumstances of this case, the only alternative explanation for the plaintiff’s fall other than Ms Williams’ negligent handling of his transfer was that the plaintiff was shaking so uncontrollably, his fall was unavoidable. The plaintiff argued that Ms Williams’ evidence in relation to the extreme nature of the plaintiff’s shaking should be rejected. However, even it were accepted, if Ms Williams had properly positioned the plaintiff in relation to the recliner chair so that he only had to be lowered into it, his shaking would not have affected the safety of the transfer.

105. The plaintiff argued that on Ms Williams’ own evidence, the way in which she tried to transfer the plaintiff demonstrated a want of care and attention on her part. There was no reason to position him some distance from the recliner, which created a wholly unnecessary risk of harm which materialised.

106. It is the plaintiff’s case that the plaintiff’s fall was caused by a combination of factors for which the defendant was either directly or vicariously liable. The defendant had direct and personal responsibility for the proper ongoing assessment of the plaintiff’s needs after his admission to its facility. Further, it was responsible for allocating the plaintiff’s care to Ms Williams, a person of limited training, skill and experience.

107. The plaintiff and Mrs Moggridge were entirely dependent on the proffered skill and expertise in relation to the level of care and state of equipment while the plaintiff was in its care. The defendant controlled both the circumstances and the activities which took place in the cottage, and was solely responsible for the care and equipment it provided.

The defendant’s submissions

108. When questioned, Ms Williams accepted that the information contained in the cottage’s care plan concerning the plaintiff was consistent his needs as he had described them. She was also questioned about what the plaintiff (or someone on his behalf) said to the care organisations in the second half of 2017. Specifically, she was asked in cross examination whether, prior to the fall, he was able to transfer independently, in the sense that he only needed one-on-one care. She agreed. She was asked whether the plaintiff was able to walk a few paces; she generally agreed, although with help in the form of his stick. She was asked whether she ever lifted him. She said she did not. She was asked whether they used a hoist. She said they did not. In other words, the sort of one-on-one care which the defendant was providing the plaintiff was the sort of one-on-one care which he (or someone on his behalf) must have told the care providers in the second half of 2017 that he needed.

109. The defendant argued that the Court must prefer the consistent evidence of Ms Williams. Once it does, nothing remains of the plaintiff’s case except a general assertion that Ms Williams should be taken to be incompetent.

110. Of course, the plaintiff may have been unsteady on his feet due to his stroke. However, he had been admitted on the basis of the information he and his wife provided to the cottage. Mrs Moggridge agreed that the information provided was consistent with her view of what was required in light of the plaintiff’s needs. Ms Williams was his carer on a daily basis. She was familiar with his abilities. There was no evidence of any earlier problem or incident.

111. The plaintiff seeks to overcome the very great inconsistency between information provided in the admission documents and by Mrs Moggridge by asserting that the plaintiff’s situation was fluid, and that the defendant should have had more regard to the state of events occurring after the plaintiff arrived at the facility. The plaintiff referred to the cottage’s notation that he was unsteady on his feet. The defendant’s facility was one for respite care with one-on-one care. It should be emphasised that the purpose of respite care was to provide the same type of care that the plaintiff had been provided by his wife in a homelike environment. That is precisely the care that the defendant provided. There can be no criticism of the defendant in that regard. Ms Williams was standing right next to the plaintiff. It cannot be suggested that she was somehow required to physically hold him up. On this basis, the defendant submitted that Ms Williams did not fail to support the plaintiff as required in his transfer.

My findings

112. Ms Williams was a qualified and experienced carer. The history provided to the cottage by the plaintiff’s wife was that he suffered seizures, but that he had not had one for 18 months. The cottage records noted that he had leg spasms. Ms William’s evidence was that as of six days prior to the fall, she had never seen the plaintiff suffer a spasm or similar, and had no reason to suspect or anticipate a spasm would occur on 29 April 2012. Until the time of the accident, the plaintiff was able to pivot on his left leg in order to position himself so he could sit in the recliner chair. At the time of the fall, Ms Williams conceded that the plaintiff, with his right arm, used the recliner chair itself as support in place of the support he would have ordinarily received from his stick. Ms Williams could not have anticipated that the plaintiff would have suffered a spasm that not only travelled down his right leg, but caused his entire body to shake.

113. I have already made a finding that at the time of the transfer, the plaintiff did not have the use of a walking frame or stick. The plaintiff took about three or four steps before he fell. Ms Williams says that she tried to steady him with her hands on either side of his hips to help him twist at a slow and measured pace. It was while the plaintiff was in this position, prior to pivoting with his left leg, that he suddenly seemed to suffer a spasm that started in his right leg. The spasm stopped for a second before his entire body started shaking. He could not turn, and Ms Williams could not hold him due to his size and weight. He fell to the side while she was standing in front of him. She did not fall on top of him. Ms Williams was providing the same physical assistance in transferring the plaintiff between the commode chair and the recliner chair as had Mrs Moggridge when she was caring for him (T 134.27-28).

114. It is my view that the plaintiff’s bout of shaking described above was not a condition which Ms Williams could steady, nor was it one which, considering the plaintiff’s mobility, he could steady with the use of his stick or a walking frame. Therefore even if I am wrong and the plaintiff did in fact have the use of his walking frame as Ms Williams stated, I still would not find that she failed to properly support him in his transfer.

115. The balance of the allegations in paragraph 8 of the amended statement of claim have not been made out. It is my view that in these circumstances, the defendant did not fail to take any, or any proper, regard for the health and care requirements of the plaintiff. It is also my view that the defendant did not fail to provide support, or proper support, to the plaintiff in transfer, nor did it fail to, or to adequately, transfer the plaintiff from the commode to the wheelchair. This part of the plaintiff’s case fails.

116. The result is that none of the allegations pleaded by the plaintiff that the defendant was negligent have been made out.

117. However, I will shortly address the relevant provisions of the Civil Liability Act 2005 (NSW) which govern these proceedings.

The content of the duty (the standard of care)

118. Section 5 of the Civil Liability Act defines negligence as meaning a “failure to exercise reasonable care and skill”. The question to be determined in all cases of negligence is whether the particular set of circumstances gives rise to a duty of care.

119. It is not in dispute that the defendant owed the plaintiff a duty of care while he was under its care. The relevant issue is the content of that duty of care, and whether there were any breaches of that duty.

Breach of duty of care

120. Section 5B of the Civil Liability Act sets out the necessary, but not sufficient, pre-requisites for civil liability to arise. Although headed “duty of care”, s 5B is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [13] “Adeels Place”. Section 5B reads:

“5B   General principles

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

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

(b) the risk was not insignificant, and

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

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

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

(b) the likely seriousness of the harm,

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

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

121. The inquiry considers what a reasonable person would have done, looking forward prospectively from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 (“Vairy”) at [126]-[129].

122. It has always been the position at common law that foreseeability cannot be judged with the benefit of hindsight. Section 5B of the Civil Liability Act requires the same approach: see Adeels Palace at [31]. The s 5B test is a restatement of the classic formulation of foreseeability articulated in Wyong Shire Council v Shirt (1980) 146 CLR 40, by Mason J (at 47- 48).

123. The question of breach of duty has to be considered by reference to ss 5B, 5C and 5D of the Civil Liability Act: see Doherty v State of New South Wales [2010] NSWSC 450.

The plaintiff’s submissions

124. The plaintiff submitted that in relation to the defendant’s failure to properly assess the plaintiff’s needs, liability must be addressed on the basis that it was an ongoing and developing failure. It cannot be considered on a “snapshot” basis at some point of time well before the fall. This approach may be understood in the context of s 5B of the Civil Liability Act. The requisite state of knowledge of “a risk of which the defendant knew or ought to have known” must be looked at over the length of time commencing from when the plaintiff was first admitted to the cottage up until the fall.

125. The plaintiff submitted that it could not be argued that the risk of harm to the plaintiff was “insignificant”. On the evidence, the likelihood of the plaintiff falling, particularly during transfers, was far more than a bare possibility. Given the services and supervision which the defendant offered and purported to exercise, it could not have been a risk of which the defendant was unaware.

126. The plaintiff argued that a proper assessment of the plaintiff should have indicated to the defendant that it would require staff that possessed the appropriate level of skill, experience and knowledge to safely care for the plaintiff. Ms Williams did not meet this standard of care. The competence of the staff provided by the defendant for the care of the plaintiff is to be judged at the time when he fell, and not simply at the time of his admission. The method which Ms Williams described in transferring the plaintiff provides a clear inference that she was not suitable for the tasks assigned to her by the defendant in relation to the plaintiff. She was an employee and working at all times under the defendant’s direct control and observation, and it is liable for her relevant acts and omissions.

127. The plaintiff submitted that under s 5B(2), it could not be argued that the likely seriousness of the harm which would ensue if the plaintiff fell was minor. Additionally, the defendant failed to demonstrat that there was any particular burden it would have experienced if it had taken the appropriate cautions. Finally, the plaintiff argued that while the “social utility” of offering respite care is clear, the “activity that created the risk of harm” was not the care in a broad sense, but the particular way the respite care was provided in this case.

The defendant’s submissions

128. The plaintiff did not accept any responsibility for the fall. The plaintiff claimed that he fell because the recliner chair moved. In further submissions, the plaintiff appeared to run a fall-back case along the lines that if the chair did not move, he fell instead because he did not have the use of his stick. However, until the fall-back case arose, the plaintiff never contemplated or suggested that he fell because he could not hold onto his stick. Regardless, the defendant argued that whether the plaintiff was using the stick or the wheeler during the fall was causally irrelevant, because he maintained and ran his case on the basis that he fell because the chair moved. In any event, there was no evidence that, if he had used a walking stick instead of a wheeler to get to the point of transfer, he would not have fallen. This was an assertion made without evidence.

129. Further, the defendant argued that Ms Williams was the responsible carer on duty at the time of the fall. She was qualified and trained as a professional carer. At no stage was it suggested to her that she was incompetent or unqualified to care for the plaintiff. The question of what Ms Williams should have done differently, which in itself would of course not be determinative of the defendant’s liability, was never even explored or put to her during examination.

130. In his submissions, the plaintiff made generalised statements about the risk of harm and the precautions the defendant should have taken. For the purposes of s 5B of the Civil Liability Act, it is necessary to identify the risk of harm and then make findings as to whether that risk was reasonably foreseeable and not insignificant, and whether there were reasonable precautions which the defendant should have taken. The plaintiff was required to establish all elements of s 5B. Firstly, it was required to identify the risk of harm. The risk of harm could be described generally or more specifically.

131. The defendant submitted that the relevant risk of harm in this case was the risk of the plaintiff falling when transferring to the recliner chair. Unlike the question of breach, which must be viewed prospectively, the identification of the risk of harm may be undertaken with regard to what actually happened.

132. The plaintiff asserted in general terms that the defendant failed to take precautions, but did not specify those precautions in any way. The defendant argued that if the Court finds as a matter of fact that the chair slid across the floor as the plaintiff was leaning on it, then for the plaintiff to succeed, he must establish that the defendant knew or ought to have known that it was likely to move. There is no evidence to support either proposition.

A.  Yes, I have family, I have grandchildren which I don’t see and I can have a proper conversation with people over here which I cannot have there.

Q.  Do you still friends around the Cronulla area?

A.  Yes, I do have friends around the Cronulla area but not to the extent I did before the marriage break up, but I do, yes.

…

Q.  How does it compare with Thailand?

A.  No comparison.  I think in the rice paddies in Thailand it’s a lot more relaxed and I can get out and do a little bit of travelling and that, but I do not want to, I could not live in Thailand, full stop, just that.

HER HONOUR

Q.  When did you go to Thailand?

A.  I can’t put an exact date on it.  I just ‑ my wife had put me in a nursing home and I thought I don’t want to be in a nursing home, it’s not for me, I had too much going on.  And so I spoke to my daughter, I said, “Can you organise me to Thailand”, you know, and my brother and that, and they found a Shanghai Care Resort which I lasted, I think, not very long because they ‑ my daughter said to the ‑ ”who’s going to look after you at night”, and they said, “Well, what’s he need at night”, and she said, “He has to get up and go to the toilet or something”, and he said, “Don’t worry, we’ll put him in a nappy” and my daughter said, “No you won’t, I’ll take him”, and she went and got me another place to go into, and that was‑‑

Q.  But when, what year?

A.  Look, I can’t say exactly, your Honour, I just ‑ it was, yes.

…”

251. The following exchanges also took place at T45.44-46, T91.13-T92.1, T92.26-T94.42, T95.17-T96.4, T96.48-T97.45, T121.1-4, T144.19-T145.20:

“Q.  In terms of coming back to Australia, if you wanted to come back and live in your own house‑

A.  Yes, that is my ultimate goal

…

Q.  It’s the case, isn’t it Mr Moggridge, that you have no intention of returning to Australia to live?

A.  I have every intention.  I’ve got no network of friends over there, I’ve got five, six grandchildren I never see, and I’ve deprived them and for the care in Australia I would not ever, I would not ever ‑ it’s the only thing that sent me to Thailand is that the level of care in this country is pathetic at best, but I will, I do want to live back in my own country.  I’ve lost my country, I’ve lost my marriage, I’ve lost everything I have, I’ve lost my grandchildren.

Q.  But sir, if I can just take you up on what you just said, that you’re very critical of the level of care in Australia, aren’t you?

A.  Of course I am, yes, it’s disgraceful at best.

Q.  You’re not going to be, sir, I suggest to you, returning to Australia in circumstances in which you considered the level of care you get in Australia is disgraceful, would that be right?

A.  That would be wrong.  I want to come back and have my own private carers so I can get rid of the ones that are no good.

Q.  But Mr Moggridge you were awarded, by way of a settlement, $6 million two months before the accident that happened in the respite centre, weren’t you?

A.  I didn’t think it was 6 million, I thought it was 4.7, but.

Q.  It’s 4.7 what you actually got, was it?

A.  To my recollection, yes.

Q.  If you wanted to have your own private carers at any time either in 2012, 13, 14 you could have paid for your own private carers, couldn’t you?

A.  It’s a long term condition I have and I’ve got to watch my pennies, which I’ve always been very frugal, and look, when push comes to shove that what I’ve got is what I’ve got in every sense of the word.

Q.  Mr Moggridge, I’m not trying to under estimate the level of disability from your stroke, but what I’m suggesting to you is, just to be clear, is that you are intending to stay in Thailand on a long term basis, is that right?

A.  No, I am not at all.  I’ve got no ‑ I don’t speak the language, I’ve got no communications, all my life and history is all in Australia with my children and my grandchildren.

…

Q.  You returned to Australia at some time on or before September 2017, last year, didn’t you?

A.  Yes.

Q.  When you came back to Australia you needed to find somewhere to live on a temporary basis, didn’t you?

A.  Yes.

Q.  Did you contact or your friend contacted Australian Unity, do you remember that name or not?

A.  No, I don’t.

Q.  Did you contact an organisation who could provide you with some form of temporary accommodation?

A.  A friend on my behalf did, yes.

Q.  What sort of accommodation were you seeking, that is, back in September 2017?

A.  It was an aged care facility.

Q.  Aged care facility, and when you contacted them, or your friend did, did you give them some indication as to how long you might be staying in the facility?

A.  It’d be just short period of time.

Q.  Did you tell them it was a short period of time because you’d be going back to Thailand?

A.  Yes.

Q.  Did you tell them these things, that you were just coming back to Sydney to settle things up, sell house et cetera and then going back overseas indefinitely?

A.  I did not, no.

Q.  Is that what you said to them?

A.  No, no, I did not have that conversation.

Q.  You say you didn’t tell the people from Australian Unity that you were just coming back to settle things up, sell house, and then going back overseas indefinitely?

A.  I was ‑ I come over here to sell my house, but not to go back, only because I had no money, and I had to ‑ I wanted to grab the top of the market, I think everyone would appreciate in Sydney.

Q.  But you were just back to settle things up and you were going to live overseas indefinitely, that’s the truth isn’t it Mr Moggridge?

A.  No, it is not the truth.  All my life is Australia, Sydney and my children again, grandchildren, all live in Sydney and I’ve been deprived of their ‑ of that and it saddens me.

Q.  But I want to suggest to you if you’ve been deprived of their company it has absolutely nothing at all to do with this case Mr Moggridge, does it?

…

Q.  Do you say Mr Moggridge, just to understand what you’re saying, that as of September 2017 you intended to return to Australia at some stage, to live?

A.  That’s always been my intention to return to Australia.

Q.  Mr Moggridge you had spent a sum of money, on your own evidence, building a purpose built house to suit your particular level of disability, hadn’t you?

A.  That’s correct.

Q.  You wouldn’t have sold that house, I suggest to you sir, if you thought after this case you’d be coming back to live in Australia, would you?

A.  It’s not mine to sell, I’m not ‑ in Thailand you can’t own any property‑‑

Q.  I understand your Honour.  I’m asking you about your Sydney house, your Cronulla house Mr Moggridge, what I’m suggesting to you is you would not have sold your Cronulla house in 2017 if you’d been intending at the time to return to Australia to live at some time after the conclusion of this case, would you?

A.  Yes, I did for financial reasons, and.

Q.  That was your intention, would you agree that when you come back to Australia you’d have to build a whole new house, that is, you’d either have to build a new house, or find a house that had been modified, or modify an existing house to suit your needs?

A.  That’s right.  That’s what I’d have to do, and I have to live in the meantime.

Q.  That would be a very expensive thing to do, wouldn’t it Mr Moggridge?

A.  Well, yes, it is but also, I have to live in the meantime.

Q.  You know as part of your last case you claimed a significant sum on account of the very cost of modifying a house, to make it suitable for your needs, you know that don’t you?

A.  Yes.

HER HONOUR

Q.  If I understood your evidence correctly yesterday I thought when this incident we’re talking about now occurred you had moved back to your house in Cronulla and it was being renovated, or fixed up‑‑

A.  No, my house was renovated ‑ we sold the farms in Southern New South Wales, we moved up to Cronulla where we originally come from before we bought the farms.

Q.  Yes, but didn’t you get the place adapted‑‑

A.  We had‑‑

Q.  Can I finish.  I thought you said that you had the place renovated or changed so that it would accommodated your disabilities?

A.  That’s correct, that was‑‑

Q.  The house at Cronulla was already adapted for your disabilities?

A.  Exactly right.

Q.  Then you’ve sold it?

A.  Yeah, I had to sell it, yeah.

…

CAVANAGH

Q.  It doesn’t make sense then Mr Moggridge for you to have sold your house in 2017 if you were planning to come back to Australia in 2018, that’s what I’m suggesting to you?

A.  Well, sitting from my point of view if you got, if you’re running out of money, and I had a massive payout for my wife, as of the divorce, and I had no money at the readies.

Q.  The point is, isn’t it Mr Moggridge that you know it’s a lot cheaper to live and be cared for in Thailand than it is in Sydney, you know that don’t you?

A.  Yes.

Q.  That’s why you moved to Thailand in 2015, wasn’t it, because it was a lot cheaper for you to obtain the care you wanted over there, is that right?

A.  Because I understand the flow of money.

Q.  You moved there also, and you’re staying there, because having regard to what you said about Australian care, you believe you get better care over there, is that right?

A.  Well, yes, I got better care, but I’m more selective over there than it is here, and if I could have fulltime care in my own home I could control who comes into my house and who doesn’t come into my house.

Q.  Is it your evidence that you say look if I could afford fulltime care, if I could afford to build myself a new home with specially adapted home I’d rather live in Australia, is that what you’re really saying?

A.  Yes, I would rather be back.  I’m an Australian and I want to live in Australia.  I don’t live in Thailand by‑‑

Q.  But is what you’re saying Mr Moggridge is the fact is you can’t afford it, is that what you’re asking your Honour to accept?

A.  I can’t afford to pay for 24 hour care.

Q.  Therefore, you moved to Thailand, is that right?

A.  Yeah, out of necessity

Q.  Would it be fair to say that unless her Honour gives you compensation out of this case equivalent to the cost of having 24 hour care in Australia for the rest of your life Mr Moggridge you won’t be returning to Australia?

A.  I will be returning to Australia.

…

CAVANAGH:

Q.  Is this the position just to wrap this one up Mr Moggridge, you won’t be returning to Australia unless you find a way to fund 24 hour care in Australia.  Is that a fair statement?

A.  Well my whole idea is returning back to Australia so I can be in contact with ‑ at this point in life I just play what’s in front of me and what’s in front of me is my grandchildren and Australia and that’s where I would like to be.

Q.  Mr Moggridge after you’d been in the aged care facility in September did you return back to Thailand or did you move to another facility being the Mildred Simmons House and I’m going to suggest to you you were in the Mildred Simmons house for a month from 21 November 2017 to 27 December 2017.  So I’ll start again I’ll withdraw that.  Did you move to the Mildred Simmons House for the period 29 November 2017 to 27 December 2017?

A.  I’d say yes I did.

Q.  Was that a respite facility?

A.  Yes.

Q.  It was offering the similar sort of care, that is, respite care as the facility Rosemore Cottage, is that right?

A.  It was better than Rosemore Cottage yes.

Q.  When you went there did you tell them this?  “At this time in my life I want to go back to Thailand I have business interests there”.  Is that what you said to them when you were admitted?

A.  No I did not.

Q.  Do you have business interests in Thailand?

A.  No I do not have business interests.

Q.  None at all?

A.  No.

Q.  Did you tell them you wanted to go back to Thailand when you were admitted?

A.  Well that was ‑ I was only here for a short stay and that was all my intentions were to be here for a short stay and that’s why I was using that facility.

Q.  Isn’t it the case you just came back from Thailand what, over the last few days?

A.  Yes.

Q.  Just for the purposes of this case wasn’t it Mr Moggridge?

A.  Yes.

Q.  Otherwise you wouldn’t be here is that right?

A.  That’s right.

…

Q.  Was it the truth though that you were just coming back to Sydney to settle things up, sell house, and then going back overseas indefinitely?

A.  I don’t know where definitely come from because I never made a definite decision on.

…

Q.  You’ve been getting better care, you say, over in Thailand than you got in Australia; is that right?

A.  That’s correct.

Q.  You’ve built your own house over there, haven’t you?

A.  Yes.

Q.  You’re getting fulltime care from a Thai lady over there, are you?

A.  She’s my coordinator of my requirements.

Q.  She seems to understand from what you said before, your needs, is that right?

A.  She understands my needs, yes.

Q.  She’s made you feel a bit better, being able to understand your needs, and give you the care you want; is that right?

A.  Well, a proper carer.  I’m in control of who comes in the house and comes out of the house.  In Australia, I’m not ‑ I’m ‑ I haven’t got control of who comes in and out and the care facilities and carers in Australia are sadly lacking in professionalism.

Q.  You’ve said that a number of times; we understand your position there, Mr Moggridge.

A.  Yeah, well I’ve been in it a number of times.

Q.  Is it the fact that being over in Thailand makes you feel better, having regard to all those matters I’ve put to you?  That is, better care and a better relationship with the carer than you do when you’re in a care facility in Australia, would that be fair to say?

A.  I’m sorry, I don’t understand the question.

Q.  Would it be fair to say that when you’re over in Thailand with the sort of care you’re getting over there, it makes you feel better than you have when you’ve been in a care facility in Australia?

BARTLEY: Your Honour, better in that context ‑ these questions, I thought, were in the area of depression and psychological problems.

CAVANAGH: That’s what they were directed ‑ I’m sorry if I haven’t made that clear.

BARTLEY: But ‘better’ is a rather colloquial term in this context.  It’s not a medical term.

HER HONOUR: It’s hard to‑‑

CAVANAGH: It’s a plain English term, bearing in mind.

Q.  Did you agree with that, Mr Moggridge, that you feel better over in Thailand?

A.  I would be better off in a RSPCA dog pen than I would be in a ‑ in a care facility in Australia.”

252. To those exchanges, I would also add that the plaintiff gave evidence that if he were to return to Australia to live permanently, ownership of the house in Thailand would pass to the nurse who organised his care there. The plaintiff owns the house he built on the land, but not the land itself. His evidence was that he planned to simply walk away from the property if and when he returned to Australia to live.

253. In cross examination, the plaintiff was asked (T 54.42-46):

“Q. What about ‘I get more mobility when overseas and I want to maintain my ability to transfer with standby assistance’, do you think you would have said that to the care provider in Australia in 2017?

A.  Well I did get a lot of massage ‑ Thai massage in Thailand in ‑ but no, I don’t think I would have said that.”

254. As outlined above, the plaintiff also gave evidence that his was paying for care in Thailand. He hired a nurse to run all of his affairs, including the organisation of the roster of other nurses. He claimed that his care and living arrangements cost around the $8,000 to $9,000 AUD per week that he had been paying in Australia (T 26.41-50; T 27.1-18). As previously noted, he failed to produce any evidence to support this claim.

255. The plaintiff was asked how long he was going to stay in Thailand in the following exchange (T 29.31-50; T 30.1-4):

“Q.  If you’ve paid for the farm, and built a house on it, how long are you able to stay there to get your money’s worth, or are you going to do that?

A.  Well, as long as it takes, but I just got to ‑ if I get something going forward it won’t be long, you know, I just ‑ I’ve got grandchildren here and I want to get back.  The ‑ the reason I put ‑ it’s still in, it’s all relevant to what I was paying here, whether I get ten or 20 years out of it is neither here nor there to me, like, I haven’t spent any more than what I’ve ‑ going forward I won’t be going forward with it, your Honour, cause it’s not me, it’s not Thailand, it’s not me.

Q. If you could come back to Australia what would you do with that house in Thailand?

A. Well, it goes back to the nurse that organised all my care over there, and it just – all I do is, in Thailand, I only own the house on the property, I don’t own the property, and it was just – walk away, basically walk away from it, but.

Q. If you came back here Mr Moggridge, would you want to live in a house with carers, or live in a nursing home?

A. Well, I would – yeah, I’d prefer to live independently, on my own, as I was before, and that’s just – that goes without saying.”

Consideration

256. The plaintiff made varied statements regarding his intentions to remain indefinitely in Thailand. I accept that he gave evidence that he has many reasons for wanting to return to Australia to live, including that he is Australian, he does not speak Thai, he wants to live nearer to his children and grandchildren and he always intended to return to Australia. However, those statements do not accord with the statements he made to care facilities in 2017. On or around 6 September 2017, he told the care facility Australian Unity that he was only coming back to Sydney “to settle things up, sell the house and then go back to overseas indefinitely”. Later that year in around December 2017, he told Mildred Simmons House that he had a farm in Thailand, and that at this time in his life he wanted to go back in Thailand because he had business interests back there. He stated in these proceedings that he flew to New South Wales from Thailand only for the purposes of this case, after which he would return.

257. The fact that the plaintiff sold his purpose-built house in Cronulla in 2017 accords with the statement he made to Mildred Simmons House that he “wanted to settle things up, sell the house”. He lives in a customised house in Thailand. He thinks that he gets better care there. He has employed a proper carer who co-ordinates his requirements and who understands his needs. He prefers the fact that in Thailand, unlike in Australia, he has control over who comes into his house and who goes out. He stated emphatically that Australian carers and care facilities sadly lack in professionalism (T 144.20-38). In fact, he insisted that he “would be better off in an RSPCA dog pen” than in an Australian care facility (T 145.19-20).

258. As to the nature of the future care the plaintiff will require, the joint report of Ms Miller-Ravagnani and Ms Borthwick provides expert evidence of his ongoing needs. Ms Miller-Ragagnani recommended that the plaintiff would require 15 additional hours of care per week, plus four weeks of 24-hour home-based respite care per year (CB, Report 15/03/18, p 5). She also recommended six hours per week of attendant care with an activity-leisure focus to address the plaintiff’s depression and weight gain, and one hour per week with a nurse to address pressure areas on the skin caused by immobility (CB, Report 15/03/18, p 4). Both experts agreed that the plaintiff should engage a dietician to address weight gain. Ms Miller-Ravagnani recommended eight hours with a dietician per year (CB, Report 15/03/18, p 7). I note as before that to the plaintiff’s credit, he has since lost weight and is unlikely now to require a dietician into the future.

259. Ms Borthwick did not consider that the plaintiff suffered any ongoing disabilities related to his fall which required a functional change in need for care (CB, Report 15/03/18, p 9). She noted that the plaintiff did not require active night-time care or one-on-one daytime supervision. This provides for varied levels of care within the 24-hour period already provided for, including two-person attention at different periods within the 24-hour period (CB, Report 15/03/18, p 10). Ms Borthwick also noted that although it is likely that the plaintiff’s condition will continue to deteriorate in the future, settlement documents from the plaintiff’s 2008 stroke identified increased care requirements over time, in keeping with age-related change, and made provision for those needs. Those provisions include for physiotherapy and medical and other services which the plaintiff has not used. Ms Borthwick does not consider that there is a need for additional provisions of this kind. As I set out earlier, I accept and prefer the evidence of Dr Zeman that the plaintiff does not require additional care. His opinion accorded with that of Ms Borthwick, although their reasoning differed. Further, the plaintiff was already given an allowance in his settlement proceedings for increased care after five years to account for his increased needs as he aged.

256. The defendant brought evidence that 24-hour care in Thailand costs approximately $1,319 per month, or $1.81 per hour. As I previously stated, this estimate does not need to reflect the plaintiff’s exact costs to illustrate the great difference in price between what the plaintiff would pay for care if he remained in Thailand, and the price he would need to pay if he returned to Australia.

257. I do not accept the plaintiff’s evidence that he wants to return to live in Australia. The evidence he gave was inconsistent and illogical. For the reasons given above, in light of his future care requirements and their cost in Thailand, I do not make an allowance for future commercial care.

Result

262. The result is that the plaintiff’s case fails. I enter judgment for the defendant.

Costs

263. The defendant is to file and serve written submissions in relation to costs by 17 June 2019.  The plaintiff is to file and serve written submissions in reply by 14 June 2019.  

264. I make the following orders:

(1)   Judgment for the defendant.

(2)   The defendant is to file and serve written submissions in relation to costs by 17 June 2019.

(3)   The plaintiff is to file and serve written submissions in reply by 14 June 2019.

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Amendments

12 June 2019 -

12 June 2019 - Arithmetical error para [213] last line, amended $95,250 to $6,500.

Decision last updated: 12 June 2019