Murko v Greenfields Narellan Holdings trading as Narellan Town Centre

[2015] NSWDC 132

District Court

New South Wales

Medium Neutral Citation:	Murko v Greenfields Narellan Holdings trading as Narellan Town Centre [2015] NSWDC 132
Hearing dates:	1, 2 and 3 June 2015
Date of orders:	25 June 2015
Decision date:	25 June 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff against the first and second defendants. (2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum. (3) First and second defendants to pay plaintiff’s costs. (4) Liberty to apply in relation to costs. (5) Exhibits retained for 28 days.
Catchwords:	TORT - personal injury - plaintiff 38 weeks pregnant and about to undergo caesarean operation slips and falls on liquid substance in shopping mall - nature and content of duty of care - whether duty of care breached - causation - damages
Legislation Cited:	Civil Liability Act 2002 (NSW), s 16 Civil Procedure Act 2005 (NSW), ss 56-62 Family Law Act 1975 (Cth)
Cases Cited:	ACCC v Air New Zealand Ltd (No 2) [2012] FCA 1355 Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203 Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208 ASIC v Rich (2005) 216 ALR 320 Attorney-General (NSW) v Markisic [2014] NSWSC 1596 Barak Pty Ltd v WTH Pty Ltd (2002) NSWSC 649 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Dybka v McKenzie [2001] NSWCA 171 Francis v Lewis [2003] NSWCA 152 Gemworth Financial Mortgage Insurance Pty Ltd v Hodder Rook & Associates Pty Ltd [2010] NSWSC 1043 Gordon v Truong [2014] NSWCA 97 Gumana v Northern Territory of Australia (2005) 141 FCR 457 Investmentsource Corp Pty Ltd v Knox Street Apartments Pty Ltd [2007] NSWSC 1128 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298 Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 Makita (Australia) Pty Ltd v Sprowles (2001) 51 NSWLR 705 Matthews v SPI Electricity Pty Ltd (No 9) [2009] VSC 340 Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59 Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95 Miller v Galderisi [2009] NSWCA 353 National Australia Bank v Rusu (1999) 47 NSWLR 309 Nominal Defendant v Kostic [2007] NSWCA 14 Ray Fitzpatrick Pty Ltd v Minister for Planning (2007) NSWLEC 791 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 Sampco Pty Ltd v Wurth [2015] NSWCA 117 State of New South Wales v Moss (2000) 54 NSWLR 536 Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 Verryt v Schoupp (2015) 70 MVR 484 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Woolworths Ltd v Strong [2010] NSWCA 282
Category:	Principal judgment
Parties:	Plaintiff: Nicole Louise Murko First Defendant: Greenfields Narellan Holdings trading as Narellan Town Centre Second Defendant: Hysense Group Pty Ltd Third Defendant: Wendy’s Supa Sundaes Pty Ltd Fourth Defendant: Katmal Pty Ltd (ACN 110 465 140)
Representation:	Counsel: Plaintiff: Mr A Lidden SC / Mr M Daley First and Second Defendants: Mr J Sleight Solicitors: Plaintiff: Brydens Law Office First and Second Defendants: Curwoods Lawyers Fourth Defendant: HWL Ebsworth Lawyers
File Number(s):	2013/330365
Publication restriction:	None

Judgment

Introduction

1. The plaintiff brings proceedings for damages for personal injuries she sustained on 2 November 2010 as a result of stepping “on a spillage of a slippery substance” in the Narellan Shopping Mall (amended statement of claim, paragraph 13).

2. The relevant particulars of negligence set out in the amended statement of claim (renumbered by me, for convenience) are as follows:

1. Exposing the plaintiff to a risk of injury which could have been voided by reasonable care on its part (particular (c));

2. Failing to provide a safe floor that was free of slippery substances (particular (d));

3. Failing to clean, or to clean adequately, the said floor (particular (e));

4. Permitting a slippery substance to remain on the floor particular (f));

5. Failing to devise, institute and maintain a proper and safe system of spot checks of floors (particular (h));

6. Failing to provide a safe means or system of cleaning the floor and draining the same thereby avoiding leaving slippery substances on the floor (particular (i));

7. Failing, by its servants or agents, to observe that a quantity of slippery substance was on the floor (particular (n));

8. Failing to more frequently and adequately inspect and clean the area around food retail outlets such as the take-away ice cream shop where this accident occurred, given the known propensity for those purchasing food and drink products to spill them in common walkway areas (particular (s);

9. Failing to inspect the relevant area with no greater than 15 minute cycles by trained cleaners (particular (t));

3. The remaining matters particularised related to the claim against the third and fourth defendants (who are no longer parties), or to failure to put down matting or erect a warning sign (issues not pursued at trial).

4. I note Mr Lidden SC’s announcement, during closing submissions, that, in lieu of tendering expert evidence, there was an agreement between the parties that the coefficient of friction of the floor rendered the floor slippery if wet.

The issues

5. Counsel for the first and second defendants identified the issues as follows:

1. Did each of the first and second defendants (“the defendants”) owe the plaintiff a duty of care?

2. What was the content of the duty?

3. If the content of the duty required the implementation of a system for cleaning the floor of the Narellan Shopping Mall did the defendants’ cleaning system fail to discharge the duty?

4. What was the source of the “slippery substance”?

5. How long had “slippery substance” been on the floor?

6. If the defendants are found to have breached their duty of care did that breach cause the fall? In other words, but for the breach would the fall would not have occurred?

7. Did the plaintiff suffer anything more than de minimis injury from the fall?

8. If so, did the defendants’ breach cause the plaintiff’s injury, disability, loss and damage?

9. Was the plaintiff guilty of contributory negligence?

10. What are the plaintiff’s entitlements to:

1. Non-economic loss;

2. Past and future out of pocket expenses;

3. Past and future economic loss;

4. Past and future superannuation; and/or

5. Past and future domestic care and assistance.

The circumstances of the plaintiff’s accident

6. The plaintiff, who was 38 weeks pregnant and booked in for a caesarean operation on the following day (3 November 2010), visited the shopping mall with her family on 2 November 2010. She intended to go to the bank in the shopping mall. To do so, she had to walk through a foodcourt-style area (although it was not the main food court of the shopping mall) containing about half a dozen cafes and take away outlets. It was lunch time, and the shopping mall was full of shoppers. Due to her advanced stage of pregnancy, she could not see her feet.

7. At 1.49 p.m., the plaintiff walked past the counter of a take away ice-cream shop known as “Wendy’s”, one of the take-away food sellers and cafes in one section of the mall. While walking fairly close to the Wendy’s counter, her feet suddenly went from underneath her, and she landed fairly heavily on her right side:

“Q. Listen to my question. What happened to your feet?

A. My feet slid from underneath me.

Q. In which direction did you fall?

A. On my right‑hand side.

Q. Which bits of your body hit the ground first?

A. My right‑hand side, top of my leg, and maybe knee and hip.

Q. While you were there on the ground, did you notice anything about your clothing?

A. Yes. My knee and my right‑hand side, top - on my thigh was wet.

Q. What sort of clothing were you wearing at the time?

A. Three‑quarter pants, baggy pants.

Q. Before you slipped and fell, had you noticed anything on the floor?

A. No.

Q. After you slipped and fell, did you notice pain anywhere in your body?

A. Yes.

Q. Whereabouts?

A. On my back on the right‑hand side, my hip, and my groin on the right‑hand side.” (T 14)

8. The fall, which is captured on CCTV footage (Exhibit 1), was witnessed by a Wendy’s employee, later named by the plaintiff as “Kate Burns” (see the plaintiff’s letter to the defendants’ insurance company dated April 2011, which is Exhibit A). The plaintiff’s mother and daughter came to where the plaintiff was standing after she got up from the fall. A security officer from the centre, Mr Habib, came over to assist, accompanied by a female employee:

“Q. After a time did any of your family arrive?

A. Yes.

Q. About how long did it take them to get there?

A. After I fell I called my daughter. Within a couple of minutes they were there.

Q. During that time did anyone do anything about cleaning up the floor?

A. No.

Q. In respect to the Wendys staff did you say anything to them about what had happened to you?

A. One of the Wendys staff members seen it happen.

Q. How do you know that?

A. Because she, she said “I seen it happen”.

Q. Did you see her making any phone calls or radio calls or anything of the sort?

A. Yes, she made a call and a security man came over and took - wrote down my details.” (T 15)

9. The plaintiff went on to say:

“Q. What was the next thing that happened as to the arrival of people?

A. Another lady came over. The man left, another lady that seen it happen came over; another staff member from Wendys I think came over and then my daughter first, then my mother came over.

Q. How long did it take until your mother arrived, that is how long from the time of your fall until the arrival of your mother?

A. Approximately two minutes.

Q. During that time while the security guard was there did you see him make any - was it a male security guard?

A. A man yes.” (T 15)

10. The security officer called on his radio for someone to come and mop up the spill and put up a sign:

“A. Yes, he called the cleaner.

Q. How long did it take the cleaner to arrive, from the time of your accident to the time that person arrived?

A. About four and a half minutes.

Q. That’s a pretty accurate estimate, why are you able to say it’s that period?

A. Well, well because mum came - mum and Taylor had already turned up and then when he did turn up my mum was yelling at him saying “How come you’re still standing there and you haven’t started cleaning”.

Q. So did the cleaner then do something?

A. Yes he started to clean the floor.

Q. What equipment if any did he have with him?

A. A mop and bucket.

Q. Did you notice the area that he cleaned?

A. Yes.

Q. How big was it?

A. At least a metre and a bit by a metre and a bit. It was quite a large area.” (T 16)

11. According to the plaintiff’s account in Exhibit A, the lady who accompanied the security officer said she would report it, but that there were video cameras, so the incident would be recorded “as she had seen the whole fall” (Exhibit A). An objection was taken to the plaintiff giving evidence to this effect, but not to its repetition in this letter to the insurers, which records this conversation. Whether that was the case or not is irrelevant; the CCTV footage tendered, while taken from an unfortunate angle and somewhat indistinct, is corroborative evidence of what occurred.

12. An incident report was filled out by the security guard in the plaintiff’s presence, but not given to her to check or sign:

“Q. While you were there you said that someone arrived to take your details, was any incident report form filled out?

A. Yes.

Q. Did you sign it?

A. No.

Q. What happened when the form was filled out, just tell me about it?

A. It was about this big by about that wide.

Q. You’re indicating about 30 centimetres high?

A. Yeah by about that wide.” (T 16)

13. The security officer took the plaintiff’s details and offered to obtain an ambulance (T 16-17). The plaintiff refused because although she was in pain, she was more concerned to go home to check that she was not bleeding and that her baby was still moving (T 17).

14. There is a considerable amount of independent evidence available to record the circumstances of this fall as well as the activities of the cleaners. As well as the CCTV for the mall for the period 1.15 pm to approximately 2.00 pm was produced on subpoena (produced on subpoena; an extract is set out in Exhibit 1), there were contemporaneous records by the security officer, a person named Ms Maria Correia and the cleaner. A call for the notes made by the security officer (who, according to Exhibit C, was a Mr Habib) was answered “not produced” (T 17). However, the reports of Ms Maria Correia of 16 November 2010 (Exhibit C) and Mr David Sharp of 6 June 2011 (Exhibit B), which had been sought on subpoena, were produced. Exhibit C not only sets out Ms Correia’s conversations with relevant people, but summarises the main points of Mr Habib’s report. I shall set these out in detail.

The defendants’ reports of the plaintiff’s accident

15. A “Customer Incident Report Form”, on the letterhead of “Greenfields Development Corporation Ltd & D Vitocco Constructions t/as Narellan Town Centre”, a computer-generated document (Exhibit C), was completed by the first defendant’s employee, Maria Correia, on 16 November 2010.

16. A Rusu objection (National Australia Bank v Rusu (1999) 47 NSWLR 309) was taken by the first and second defendants in relation to production of all its own documents, which had been provided under subpoena, of which this is the first. My reasons for admitting these documents into evidence are set out in more detail below.

17. The first and second defendants did not call any oral evidence. In those circumstances, the relevant portions of Maria Correia’s report should be set out in full. The plaintiff’s details are provided and, in the section marked “restrictions”, the word “pregnant” is typed. The incident is then described as follows:

“2. THE INCIDENT

Location

Centre Court near Wendys

Date and Time of incident

2.11.10, approx 1.45pm

Day of the week

Tuesday

Reported by

Wendy’s Staff member called Centre Management and Kathryn contacted security via two way radio, ‘Security Habib’ answered to the call.

3. THE INJURY

Injured person’s version of events

Secutrity [sic] Habib has advised and noted in his report that when he attended the incident area, Mrs Murco [sic] was crying and said that she was in pain. She told Habib that she had slipped. Habib did a site inspection and found that there was a small water spill on the floor.

Habib noticed that she was pregnant and offered to contact an ambulance or take her to the medical centre but both offers were refused.

She informed Habib that she had pain coming from her inner thighs. Habib offered again to get her medical assistance by someone authorised but the offer was again declined. She advised that she was scheduled to have her baby the following day and if the pain got any worse then she would have it checked out.

Habib took her details and advised that a report would be done. At this stage, Mrs Murcos [sic] mother showed up and assisted her back to her car. Security Habib went with them to make sure that she got there safe with no problems.

..

9. FOLLOW UP CALL TO CUSTOMER

Date & Time

16th November 2010 at approximately 9:30am

By whom

Maria Correia

File notes on conversation

Nicole advised that she still has pains between her thighs which goes down to her knees and through her legs.

She described it as a shooting pain. She said that she was glad to have been booked in to have a caesarean the next day because labour could have been difficult due to the pains she was experiencing.

She queried what happens now several times as she was still in pain, She suspected that it could have been muscle damage. I had informed her that a report had been done by security and I would also be completing one myself to send through. I suggested an additional follow up call to see how she was, she said that would be good and we scheduled in next Tuesday the 23rd November.”

18. No documents were tendered by either side in relation to the “follow up call” to see how the plaintiff was. However, it is not in dispute that Chubb Insurance authorised, and paid for, physiotherapy for the plaintiff for the period from March 28 2011 up to January 2012.

19. A report was prepared by the cleaner, Mr David Sharp, on a date described as “06/06/11” (Exhibit B). He described the incident as follows:

“As I patrolled stage one that includes Wendy’s area, was all clear of any spillages & litter. Continued patrol around entries than into corridore [sic] than toilets. I came out of the toilet’s corridore [sic] and saw that a lady had sliped [sic] & fell [sic] on milky type fluid. Caution sign was placed and floor was cleaned & mop dried [sic].”

20. The plaintiff’s account of the accident was also recorded in her letter of April 2011 to Marissa Brenton, the Claims Officer of Chubb Insurance (Exhibit A), as part of the plaintiff’s request for physiotherapy. In it, the plaintiff records that while “on my way to the bank I slipped over on some water or something outside Wendy’s. There was no sign to say there was a spill or anything like that”. She said that first a man and then a lady came to see if she was all right, and that a security guard and then the plaintiff’s mother and daughter came to the scene. She noted that the mall representatives who came “called on their radio for someone to come and mop up the spill and put up a sign”. This letter also notes that the security guard asked for her details and offered to call an ambulance.

21. Given the similarity of these versions of events, and the confirmation of the CCTV footage, many of the uncertainties of slip and fall accidents, such as the precise location, the mechanics of the fall, and the presence of shopping centre employees recording the events, should not be disputed issues of substance in these proceedings. The defendants called no evidence to contradict the plaintiff’s account of her fall. The defendants did, however, challenge the admissibility of their own records, and I set out below my reasons for allowing them into evidence.

Objections to the tender of reports of the accident by the first and second defendants

22. The defendants take a Rusu objection (National Australia Bank v Rusu (1999) 47 NSWLR 309) to the tender of their own documents, produced from Packet 2 of documents forwarded to the subpoena registry in response to a subpoena. Regrettably, this packet is missing, and the documents tendered are the plaintiff’s solicitors’ copies.

23. Mr Sleight submitted that the warnings of Bryson J in Rusu at [28] mean that the production of documents obtained under subpoena, even from his own client, could not, without more, demonstrate them to be authentic, and that the maker of the document had to be called. That means that the plaintiff has to find and subpoena Mr Habib and Ms Correia, neither of whom, Mr Sleight submitted, should be regarded as employees of either of the defendants merely because their names appeared on the documents produced under subpoena.

24. The defendants were under an obligation to produce the documents sought under subpoena, namely the reports of the persons who attended for the purpose of noting down the plaintiff’s details and the reports that they prepared. Does that mean that, by production of the documents, they waive objections to authenticity? Is authenticity in fact a prerequisite for admissibility of a document (ACCC v Air New Zealand Ltd (No 2) [2012] FCA 1355 at [92]-[93])? If Rusu is applied (and I accept, for the purpose of argument, the submission that these documents are not business records as they were prepared in anticipation of litigation), can the court dispense with the requirement that these witnesses be called if there is something more than mere tender of the documents to show their authenticity (ASIC v Rich (2005) 216 ALR 320 at [119])?

22. First, unlike the bank records in Rusu, these documents are complete in themselves and the information within them confirms their authenticity. The name of the form and of the shopping centre are set out at the top of Exhibit C. Exhibit D is headed “Customer Incident Report for: Hysense Cleaning Pty Ltd” and the section “Our version of events” is signed and dated by David Sharp. The form’s questions contain handwritten answers stating that the incident is the accident of Nicole Murko, the location and date of the accident, that the CCTV was retained, and that the site was inspected by Ash Halam. While Mr Sleight submitted that certain notations (“dust related cleaning to be attended” and “no risk at time of inspection”) were not clear in meaning, that uncertainty in wording should not prevent these documents from being tendered. (I note Mr Sleight’s Rusu objection to Exhibit D was made and then but then withdrawn, as he intended to call Mr Sharp (T 116). However, he did not call Mr Sharp, and I have assumed he has reinvoked his right to this ruling.)

23. One of the objections to Exhibit C is that this document records the finding by Mr Habib that there was “a small water spill on the floor” and that “A cleaner was contacted by Habib to clean the spill”. It also stated that Mr Habib “has advised and noted in his report” the above matters, and that he “took her details and advised a report would be done”. This report was not produced in answer to a call (T 16) and Mr Sleight objected to the summarising of its contents by another person. I reject that objection, as it is clear from Ms Correia’s report that she is summarising from a document before her, and not from some unknown hearsay account.

24. Mr Sleight’s also objected on the basis that Exhibit C was “not signed by anyone, it could be the first draft, it could be the last draft” (T 146). Additionally, it did not “look like” a business record. Given the circumstances of its preparation, I am prepared to accept it was prepared in circumstances of anticipation of possible litigation. However, it was not signed because it was a computer record, and the absence of a signature is irrelevant.

25. I am satisfied that, on the face of these documents, they are authentic, and I additionally rely upon all of the factors listed by J Forrest J in Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59 at [32] to permit the tender of such documents in circumstances where a Rusu-style objection is made.

26. My rulings are based on an approach of caution. Rusu is a controversial decisions, and one which has received almost no appellate consideration. The only appellate decision to refer to Rusu since the enactment of the Civil Procedure Act 2005 (NSW) is Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 where Basten JA (at [30]) notes the three requirements of “authenticity, identity and admissibility”, citing Rusu without comment. With the passage of time, and the enactment of ss 56-62 Civil Procedure Act 2005 (NSW), the correctness of Bryson J’s approach in Rusu has been questioned, as Schmidt J noted in Attorney-General (NSW) v Markisic [2014] NSWSC 1596 at [106]-[108]:

“[106] It should also be noted, however, that the correctness of Bryson J’s approach in Rusu has since been questioned. In the Matter of Maiden Civil Pty Ltd [2012] NSWSC 1618, Brereton J considered the decision and the cases which later considered it, concluding at [23]:

“As in other cases in which a Rusu objection has recently been taken before me, so in this, Needham J’s judgment in Marra Developments has been in the back of my mind, and I have used this opportunity to consult it more fully in the light of Rusu. In my view, the position shortly stated is, first, that the mere production of a document cannot authenticate it; secondly, Marra establishes, although Rusu might contradict, that production on subpoena from an identified source might suffice to show that it is produced from the custody of the entity whose business it is, which would facilitate an inference that it was a business record; and thirdly, Rusu should not to be taken to limit the way in which authenticity of a document can be proven. For my part, I would respectfully doubt whether production on subpoena by the entity whose business the document is alleged to be a record of would always be insufficient to found the requisite inference; however, Rusu has been endorsed, subject to the minor qualification of the words, “save in limited circumstances” in the Court of Appeal and by Austin J in this Division, and on that basis, I should follow it.”

[107] In this case those observations apply to those of the disputed documents obtained either from court files on Ms Kavanagh’s request and those obtained from Crown Solicitor’s files.

[108] In Australian Competition and Consumer Commission v Air New Zealand [2012] FCA 1355; (2012) 207 FCR 448, Perram J also considered the authorities which had questioned Rusu and declined to follow it, taking the view that its approval in Daw v Toyworld (NSW) Pty Ltd was obiter (see at [92]–[104]). His Honour there discussed the distinction between admissibility of evidence, a question of law and authenticity of documents, a question of fact. He considered that a document the authenticity of which was in issue could be relevant and admissible under ss 55 and 56 of the Evidence Act, with its authenticity being a question of fact in issue which had to be determined on all of the evidence in the proceedings. His Honour gave examples of such cases, including forgery prosecutions and contests over whether a signature on a Will was genuine.”

30. The point in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 was that no objection was taken at the trial to the authenticity of the document, as J Forrest J, in Matthews v SPI Electricity Pty Ltd (Ruling No 35), notes. Perhaps that is why LexisNexis has a warning sign besides its report of Rusu, with the note “cautionary treatment indicated”.

31. Thanks to the widespread use of electronically stored information, authenticity of documents has largely ceased to be a problem on the fifteen years which have passed since Rusu. Additionally, the strictures on documents produced on subpoena in commercial litigation need to be read in light of the availability of discovery of the parties’ documents, a process not available in personal injury proceedings.

32. I also note, in passing, that the general unavailability of discovery in personal injury proceedings, which requires the parties to obtain documents from each other and from third parties on subpoena, creates real injustice, of which the above is but one example. It also creates problems for courts; the subpoena packet containing these documents could not be located, and if the plaintiff’s solicitors had not made copies when they inspected, these documents would not have been available at all.

33. In my view, it is time that obligations of all parties to produce documents in personal injury litigation was reconsidered in the light of modern litigation practices, including the desirability of both parties producing to each other, early in the litigation, documents of obvious relevance such as these.

Findings of fact

34. Noting the considerable amount of evidence as to the circumstances of the plaintiff’s fall, what findings of fact are necessary in order to determine the issues identified by the defendants?

Duty of care

35. The first two questions on the defendants’ list of issues poses the question whether a duty of care was owed at all and if so, what the content of that duty of care would be.

36. The amended statement of claim pleads that the first defendant was the occupier of, and had the care, control and management of, the shopping mall and that the second defendant conducted the business of commercial cleaning at those premises pursuant to a contract with the first defendant which included provisions, inter alia, for the common areas of the premises to be kept clean and safe. Both the first and second defendants admit these allegations (paragraphs 2 of their respective defences filed on 31 March and 1 April 2014). Do the defendants owe different duties of care? In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]-[8], the Court of Appeal noted:

“[7] It was common ground that McDonald’s owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic’s duty was relevantly identical with McDonald’s, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned.

[8] Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows:

[159] The scope of the occupier’s duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, “the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case”: Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q’land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35].”

37. In Jackson v McDonald's Australia Ltd, as was the case here, duty of care was admitted in the pleadings and not the subject of submissions. The Court of Appeal was critical of the approach taken at first instance in relation to identifying the duty of care and emphasised the need for the risk of harm to be precisely identified. In Jackson v McDonald's Australia Ltd, a description of the risk of harm as being that the plaintiff might slip was rejected as insufficient (at [17]); the primary judge is required to identify accurately the actual risk of injury the plaintiff faces, as it is only through correct identification of the risk that the court can determine what a reasonable response to that risk would be: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [7]. No submission was made in these proceedings that the duties of care owed by the respective defendants were any different to those of the defendants in Jackson v McDonald's Australia Ltd, and in those circumstances I propose to regard those duties as “identical” (Jackson v McDonald's Australia Ltd at [7]).

38. The correct approach to the content of the assumption that an entrant uses reasonable care for his or her safety is explained by Gleeson JA in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159], that foreseeability of risk of injury is not determinative of breach of duty of care (Francis v Lewis [2003] NSWCA 152 at [40]), that the occupier’s obligation is not to make the premises as safe as reasonable care and skill can make them (in that it is not an insurer of entrants) and that what constitutes the exercise of reasonable care will depend upon the circumstances of each case: Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32].

39. The defendants submit (similarly to the defendant’s submissions in Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 at [31]) firstly, that that the contents of the duty of care owed by the defendants, and in particular by the second defendant, cannot be determined by reference to the contractual obligations between the parties, in that failure to discharge those obligations by leaving the area unpatrolled for a period of time in excess of the 15 minute period required by that contract cannot constitute a breach of duty of care “on the present evidence” (written submissions, paragraph 20). Mr Sleight relies upon Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208 to submit that the contractual arrangements “may” justify an inference that the contractual requirements represent the appropriate precautions, but submits that a “significant departure” from this contractual situation would be required before a finding of negligence could be made. This brings me to the question of what the plaintiff must establish in order to demonstrate a breach of those “identical” duties by the defendants.

40. In Woolworths Ltd v Strong [2010] NSWCA 282 at [60], the Court of Appeal considered that Woolworths’ negligent failure to implement a system of periodic inspection would be a necessary condition of the appellant’s harm. There was no evidence of cleaning for the whole period of time from the opening of the store up until the accident. The issue before the High Court was whether the Court of Appeal was right to conclude that it was not open on the evidence to apply that reasoning in this case, principally because the contaminant on the floor in that case, namely a hot chip, was most likely to have been deposited at lunch time.

41. The High Court in Strong v Woolworths Ltd t/as Big W defined the issue in those proceedings as follows (at [32]-[33]):

“[32] The appellant was required to prove on the balance of probabilities that Woolworths’ negligence was a necessary condition of her harm. Woolworths’ negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.

[33] The sidewalk sales area was not inspected in the four and a half hours between the time when the area was set up for the day’s trading and the time of the appellant’s fall. There was no dispute that, had the area been inspected, the chip would have been detected and removed. The Court of Appeal observed that the chip was not lying at the very edge of the corridor, given that Ms Hurst was walking next to the appellant on her right, and noted the evidence that it was visible after the appellant’s fall.”

42. Mr Sleight submits that for the plaintiff to establish liability (s 5B(1)(c)), she must first establish what frequency rotation a reasonable person in the position of the first and second defendants would take as a precaution. In Woolworths Ltd v Strong, where the contract stipulated 15 minutes (see [7]), reasonable care nevertheless required inspection and removal of the slipping hazards at a greater interval, namely “not greater than 20 minutes”. Clearly, in those circumstances, even though the contract required cleaning every 15 minutes with “an exceptionally high standard of cleaning with special attention paid to the food court/public seating areas” (Client Terms and Conditions, paragraph f), the contractual terms are not determinative either of the content of duty of care or breach of that duty.

Factual findings necessary in relation to breach of duty and causation

43. Before considering issues of breach of duty, it is first necessary to establish two issues:

1. What the plaintiff slipped on; and,

2. What cleaning system was put in place by the defendants.

What did the plaintiff slip on, and where was it?

44. The questions of what the plaintiff slipped on, and its visibility, need to take into account that the plaintiff’s very heavily pregnant state meant that she could not see her feet and thus the floor. The plaintiff herself was unaware of what she had slipped on. In her April 2011 letter to Marissa Brenton, the claims officer for Chubb Insurance, she describes it as “some water or something outside Wendys”. She went on to note, “there was no sign to say that there was a spill or anything like that”. The statement of claim identifies only “a spillage of a slippery substance”. The CCTV footage shows the plaintiff falling, but does not identify the substance. The defendants’ own records are more helpful. As noted above, security staff member, Mr Habib, advised Mrs Correia that he had seen what he called “a small water spill on the floor”. As also noted above, the cleaner said that when he came out of the toilet corridor, he “saw that a lady had sliped [sic] and fell [sic] on milky type fluid”. The plaintiff’s daughter gave similar evidence of observing a milky type fluid on the floor similarly to that of a milkshake. However, how did it get there, and how long had it been there?

The defendants’ “ice cream boy” argument

45. Mr Sleight, relying on his own observations of the CCTV, put to the court that the contaminant in question was a ball of ice cream dropped by a young boy six seconds prior to the plaintiff’s fall, in circumstances where no cleaning system could have played any part in the plaintiff’s accident.

46. The CCTV does not actually show a small boy dropping ice cream. It is surmise. A woman and small boy are seen at Wendy’s some six minutes earlier (Exhibit 2, pp 4-5), and the small boy walks away with the woman, holding an ice cream ball in a cone in his hand. When the boy comes back into view on the CCTV, walking behind his mother (Exhibit 2 pp 6-7), six seconds before the plaintiff’s accident, he passes relatively close by the place of the fall. He appears to slow down before speeding up to follow his mother.

47. Nothing can be seen to drop, or even to be missing, but Mr Sleight postulates that the ball of ice cream must have fallen, and the plaintiff slipped on it. No cleaning system could effectively deal with a ball of ice cream dropping six seconds before the next person’s fall, and there is thus no breach of duty of care or liability for the harm caused by the plaintiff.

48. The difficulties with this submission are as follows:

1. The path of the boy carrying the ice cream and the path of the plaintiff do not intersect. Mr Lidden SC has helpfully tendered a diagram showing the respective paths of the little boy and the plaintiff. The little boy is not within sufficient distance of the plaintiff so as to have dropped his ice cream from his ice cream cone in her path.

2. A ball of ice cream is inconsistent with the description of the spillage by all persons present. While descriptions as to the milky nature of the substance vary from water to a milky substance, there is no description resembling the fall of even a partially melted ball of ice cream (for the ice cream to have been capable of remaining on the cone until six seconds before the plaintiff’s fall, it must still have retained some of its ball-like shape). The plaintiff’s daughter was certain she had not seen any shape resembling a ball of ice cream or indeed ice cream. Mr Sleight’s submission that the ball of ice cream might have been kicked away in the plaintiff’s fall is inconsistent with the description by the cleaner and by that of the security guard of the spillage (as noted by Ms Correia), as well as implausible.

3. There is nothing visible on the CCTV to suggest that the child did in fact drop the ice cream. Mr Sleight and Mr Lidden SC both warned each other (and myself) against making assumptions as to such imponderables as the likelihood of the child not consuming the ice cream in the six minutes, or of how much ice cream ball tension is necessary for it to remain on the cone, or the most likely response of a small child who has dropped his ice cream. All this does is to heighten the implausibility of the scenario.

49. I am satisfied, having regard to the consistency of the description given by all of those persons present, that the slippery substance was a reasonably large pool of liquid, not a ball of ice cream, which slippery substance had been there for sufficiently long to spread or liquefy to the form described by those who saw it. There was no ball of ice cream and the boy seen carrying the ice cream away six minutes earlier played no part in these events on his return. I am comforted in this finding by the fact that Mr Sharp, the cleaner, was available to be called and was not called (Jones v Dunkel (1959) 101 CLR 298).

The cleaning system

50. This brings me to the question of the cleaning system. As Ms Correia’s report (Exhibit C) demonstrates, CCTV was retained. The CCTV available to the court commences at approximately 1:15pm and concludes at approximately 2:00pm. The plaintiff was not cross-examined about her claim that the cleaners were called to the site of the accident by the security guard. This means that their presence to mop up the contaminant was not as a result of the cleaning system, but as a result of a direct request (contrary to Exhibit D).

51. The CCTV shows the cleaners walking along a corridor in the shopping centre which was at right angles to the path where the plaintiff fell for the periods 1:31:23 to 1:31:38, and returning along the same path at 1:32:29. The cleaner is seen to use a device to pick up an item at 1:32.29 (Exhibit 4, p 8). While it is difficult to tell from the CCTV, the cleaner appears to be looking at the floor ahead and not to turn his head to look down the aisle where the accident occurs. He does not go down that aisle at all.

52. In Woolworths Ltd v Strong, it was not in question that, on the day of the plaintiff’s fall, Woolworths did not have any system in place for the periodic inspection and cleaning of the sales area (at [3]). The system was described (at [6]-[9]) as being that the area was cleaned “every 20 minutes” intervals, but for the area in question, there was no system of inspection in place for the entire 4.5 hour period from the time of opening of the store.

53. What is the evidence of cleaning in the Narellan shopping centre on the day that these events occurred? Between 1:15 pm, when the footage commences, to the walk-by of the cleaner at 1:31 to 1:32 pm, no cleaning activities are shown. Mr Sleight concedes that this amounts to leaving the area unpatrolled for some 17 minutes (written submissions, p 20).

54. However, Mr Lidden SC submits that the period is far longer, in that it was open to the defendants to lead evidence of the cleaning activities in this area, whether by CCTV or by oral evidence from the cleaner, Mr Sharp, as to when the corridor in which the plaintiff slipped had last been clean. No such evidence is available and Mr Lidden SC invites me to accept his submission that, as was the case in Strong v Woolworths, there is no evidence of cleaning on the morning of these events at all. In this regard, Mr Lidden SC appears to be referring to evidence of the kind discussed, for example, in Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203 at [45], where the defendant did not put into evidence daily floor inspection logs, or call any evidence as to what the system of cleaning actually was on the day in question.

55. Any such evidence would have been relevant to the issue of causation. In explaining the relationship of evidence to causation for the purposes of s 5D, the High Court in Strong v Woolworths Ltd outlined this issue at [20]:

“Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. This is pertinent to the appellant's attack on the court of Appeal's reasons, which is directed to para 48 of the judgment:

Now, apart from the 'exceptional case' that s 5D(2) recognises, s 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words 'comprises the following elements' in the chapeau to s 5D(1). 'Material contribution', and notions of increase in risk, have no role to play in s 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within s 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether s 5D(1) is satisfied in any particular case." (emphasis in original)"

56. The court explained the onus of proof as to causation at [32]:

“The appellant was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.”

57. Mr Lidden SC submits that the plaintiff has proved, on the balance of probabilities, that there was no or no sufficient system of periodic inspection in that the sole evidence of cleaning was the cleaner seen walking forward and back along the adjoining aisle, particularly at 1.32 pm.

58. Mr Sleight submits it is more likely than not that the cleaner, when doing so, would have seen a contaminant of the size and nature described by the plaintiff’s daughter and cleaned it up (written submissions, p 30) at 1:32pm if it was there. This would mean that the contaminant was not on the floor at 1.32 pm and thus not discoverable before the plaintiff’s accident at 1.49 pm. However, Mr Lidden SC submits, and I agree, that there is no evidence from the CCTV that the cleaner was inspecting, or even looking at, the site of the spilled material. He certainly did not go into the aisle in front of Wendy’s. It is unclear, from the CCTV, just how far down the aisle the cleaner could have seen. I also accept Mr Lidden SC’s submissions as to the inference I should draw in relation to the defendants’ failure to call the cleaner, Mr Sharp.

59. Finally, Mr Sleight submits that the 50 or so people who are seen in the CCTV to walk along the corridor where the plaintiff slipped do not appear to have any difficulty, in that none of them slipped on the contaminant. Most of those persons, however, are walking in the middle of the corridor, whereas the site of the contaminant is closer to the Wendy’s takeaway shop. One lady does stop a pram in an area very close to the site, but the stability of a four-wheel pram is not the same as that of a 38-week pregnant woman. The significance of the plaintiff’s pregnancy is that, like the plaintiff in Strong v Woolworths Ltd (who was walking through Woolworths on crutches because one leg had been amputated above the knee), her mobility and ability to see the floor were considerably less than that of other users of the walkway.

60. When determining breach of duty and causation issues, careful attention must always be paid to the facts of the case. The plaintiff in these proceedings was particularly vulnerable to slip hazards because of her mobility problems. She was not in a position to perceive a liquid substance spilled on the floor. According, when considering these issues, some regard should be had to the particular vulnerability of a woman in her advanced stage of pregnancy. The facts in relation to causation also closely resemble those of Strong v Woolworths Ltd in this regard.

Conclusions concerning liability

61. The plaintiff’s accident occurred in a busy shopping mall at lunch time, in an area requiring special vigilance because of the number of shops selling food. Slipping accidents in supermarkets or shopping centres represent a well-known risk, requiring regular inspections of particular places of danger at regular and short intervals: Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 256.

62. Determination of the appropriate frequency of any cleaning and inspection system in relation to this part of the shopping mall requires careful analysis of the relevant provisions of s 5B Civil Liability Act 2002 (NSW), which provides:

“(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.”

63. I am satisfied, in relation to s 5B(1), that the risk was foreseeable and not insignificant. This brings me to the question of what precautions a reasonable person in the defendants’ position would have taken. This is determined by considering the matters set out in s 5B(2) and having regard to, inter alia, apparent departures from the system referred to in the contract (see Strong v Woolworths Ltd at [8]).

64. Taking all of the above into account, I am satisfied that in a food court type area such as the premises where the accident occurred, in an aisle thronged with lunch time shoppers and where the sale of liquid items was occurring, a reasonable person would have instituted a system of cleaning and inspection not only with a minimum frequency of every 15 minutes, but which would have included walking along areas of the kind likely to require “special attention” in accordance with the terms set out in the contract (Exhibit F). The contract stipulates food court shops as requiring special attention because shops selling food such as take-away ice cream, milkshakes and other liquid refreshments are prone to be handing over goods likely to drip from their containers. The aisle in question represented a higher risk than that considered in Strong v Woolworths Ltd for this reason.

65. The likelihood of harm (s 5B(2)) is significant and the probability that harm would occur without such a system is significant. The burden of taking such precautions was very low; the terms of the contract were clear and it was in the interests of both defendants that they should be complied with. The sale of iced liquid and/or water based take-away products come with attendant risks, of which both defendants would have been well aware.

66. Mr Sleight submits that it is necessary for me to make a finding that there was a significant departure from the standards necessary to keep such an area free of spillage (including any reference to contractual obligations), and submits that this is the “20 minute” test identified in Strong v Woolworths. I do not accept that Strong v Woolworths should be read as determining that 20 minutes would be sufficient. Each case must turn on its own facts; the reference to 20 minutes in Strong v Woolworths needs to be seen in the context of the relevant area being outside the store, and not inside a food consumption area in an aisle selling liquid take-away products, in circumstances where there was a need for “special attention” (Exhibit F) cleaning in the food areas. (I also note the reference in Strong v Woolworths to there being “no explanation” as to the difference between 15 minutes in the contract and the 20 minute system (at [8]); the court dealt with the facts on the basis of the 20 minute system, but did not conclude that 15 minutes was surplus to requirements.)

67. I am satisfied that the spillage occurred more than 15 minutes prior to the plaintiff’s accident, in circumstances where a reasonable system required an inspection every 15 minutes, with “special attention” (Exhibit F) to the food court and public seating areas, and where, on the CCTV evidence, I am satisfied that no inspection took place from at least 1.15 p.m. and indeed for an unknown but considerably longer period prior to that. The speedy response of both defendants to the fall indicates that both defendants had servants or agents in the vicinity who could, and should, have been on the lookout both for spillages of this sort and for failures to comply with the cleaning system.

68. The plaintiff has therefore established causation and, as a result, her case in negligence against both defendants.

Contributory negligence

69. In the course of closing submissions, the defendants abandoned their claim of contributory negligence.

Quantum

70. The relevant issues for consideration are:

1. The plaintiff’s relevant pre-accident history;

2. The plaintiff’s injuries, treatment and the medical evidence;

3. The damages sought and medical causation issues.

71. The plaintiff’s pre-accident history is one of continuous employment and excellent health. Born in 1971, she completed her secondary studies (Year 12) in 1989 and commenced a secretarial course in 1990. She worked continuously, first as a data entry processor and then in the accounts department of one company and then as a receptionist in a second company, She worked as a receptionist and head cashier at another firm shortly before the birth of her first daughter, Taylor, being made a part time employee after her daughter’s birth. Her second daughter, Chelsea, was born in 2000, but she continued part time employment at Campbell's Cash & Carry until 2003, when she commenced the first of her two jobs as a finance broker at Capital Corp in 2003.

72. In 2004 the plaintiff and her husband (who had married in 1994) were divorced. She worked part time at United Financial Services (for 28 to 30 hours per week) for 18 months and then set up her own company, Harrington Park Financial Services, as a finance broker providing car loans. She worked full time in this company up until the birth of her third child, Ellie-May, who was born on 3 November 2010, the day after the plaintiff’s accident. She had married the child’s father, Andrew Murko, on 6 March 2010, and his younger son Mitchell was living with the family at the time of the accident.

73. The plaintiff’s cross-examination commenced with challenges to her accreditation as a finance broker (T 53-56). This was a mistake on the part of the defendants. As the plaintiff had obtained her licence while married to her first husband, her licence was in her married name at the time. The plaintiff herself realised this error and pointed it out to Mr Sleight (T 55-56). I was impressed by the way the plaintiff frankly and fairly answered the somewhat confronting questions on her alleged lack of qualifications. Her demeanour in the witness box generally was that of an intelligent, observant and honest witness who was doing her best to answer the questions. At times she appears to anticipate the question but, given the circumstances in which the cross-examination commenced with an egregious error by Mr Sleight in relation to the plaintiff’s qualifications, I consider this to be understandable.

74. The plaintiff described her work methods in the business she was running at the time of the accident. Essentially, she had based her business technics on what she had learned while working for Capital Corp and United Financial Services. She drove to the car dealers, indulged in what she called “chit chats” with them and generally put her business forward as a desirable one to broker loans for persons buying motor vehicles. The tax returns for the company business indicate the degree of success the plaintiff had. Prior to the accident, she had employed another worker for 20 hours a week. Her intention was to continue working in this business (since she could work from home using her computer and telephone), as an important part of maintaining her business was ongoing contacts with her regular customers.

75. The plaintiff’s health before the accident was excellent. Apart from an operation in 1992 to remove an abscess, her sole illness of significance was a pelvic sling operation in 2009 to correct problems which had resulted from the birth of her two daughters. Importantly, as Dr Teoh notes in his report of 10 April 2014 (Exhibit K, page 2), there is no past history of psychiatric illness, no family history of childhood trauma or abuse, or any other indicia of pre-existing problems. The plaintiff’s history of treatment since the accident is set out in the letters from Dr Burhan to the plaintiff’s general practitioner as well as in the reports of Mr Glancey (Exhibit K).

76. I note in this regard that the expert psychiatrist report from Dr Lewin, for the defendants, was withdrawn from tender shortly after the hearing commenced, which meant that the plaintiff (who had not re-served it) could not tender this document. I have the benefit of some extracts from his report in the report of Mr Glancey of 20 April 2015 (Exhibit K), to which no objection has been taken by the defendants. Those extracts do not appear to include any information from Dr Lewin about the plaintiff’s pre-accident history but it appears to be generally accepted, given Mr Glancey’s comments about the similar views he and Dr Lewin hold, that the plaintiff has no prior psychiatric history of any kind.

77. All of the medical reports thus point to the plaintiff enjoying excellent health prior to the accident. This is relevant when considering the significant change in the plaintiff’s work life, personal life and health following her fall on 2 November 2010.

The plaintiff’s medical treatment and business activities following the accident

78. The plaintiff’s medical history following the accident needs to be seen in the context of her intended admission for a caesarean operation the day after the accident (3 November 2010). She was released from hospital the following day. She told the court (see also Exhibit A) that she asked to be allowed to go home early because of back pain.

79. The plaintiff was then at home breastfeeding her baby, and told the court she was reluctant to take pain medication for that reason. Additionally, she was recovering from significant surgery; for example, she had been told not to drive for six weeks. While the plaintiff agreed that she could have asked her husband to drive her to the doctor if she wanted medical assistance, I accept her evidence that she thought her back pain would get better with time, and that this was why, when she did see her doctor about other matters in November 2010, she did not mention back pain. She did, however, consult her general practitioner about other problems over this period, as is set out in more detail below.

80. The plaintiff did not seek medical advice about her back and leg pains until 2 March 2011, when she saw her general practitioner. She commenced physiotherapy on 28 March 2011 with a physiotherapist, Rachael Wiltshire.

81. Between, or shortly after, her first two physiotherapy, the plaintiff then wrote to Chubb Insurance Company of Australia Ltd (“Chubb Insurance”) in early April 2012, outlining her physical condition as follows:

“My daughter was safely delivered via c-section on 3/11/2010. With the pain I was lucky that I had a scheduled c-section booked as I wouldn’t have been able to push a baby out naturally. I still had back and groin pain however I just put up with it thinking that it would eventually go away. Unfortunately it has and over time it has gotten a lot worse. So on 2/3/11 I went to see the doctor who said I should go and have some physio done and if it don’t improve I should have a scan done. I then waited about another two weeks before making an appointment to see physio. I have had two treatments now and I am in a lot of pan. Physio feels that I will need a lot more treatments.

I am currently breast feeding and wish to breast feed for 12 months like I did with my other 2 children and because of this I can not use strong pain relief or anti inflammatory medicines.

I attach all my receipts and bills for you to look at and also a copy of my Medicare card and drivers licence. If you need to discuss this with me please feel free to contact me on [mobile telephone number].” (Exhibit A).

82. The “two treatments” by the physiotherapist referred to in this letter were the first of a series of treatments all paid for by the defendants. The first of these appears to have taken place on 28 March 2011 (Exhibit A).

83. What were the plaintiff’s complaints? The physiotherapist, Rachael Wiltshire, noted the plaintiff suffered injury to her “blt groin and right glut then LBP” (Exhibit A).

84. The plaintiff was certainly assiduous in her attendances at the physiotherapist. She underwent further physiotherapy treatment on 29 March, 7 April, 11 April, 14 April, 18 April, 2 May, 9 May, 12 May, 20 May, 23 May, 26 May, 30 May, 2 June, 16 June, 20 June, 30 June, 11 July, 1 August, 17 August, 22 August, 29 August, 5 September, 12 September, 19 September, 13 October, 19 October, 26 October, 2 November, 9 November, 17 November, 7 December, 22 December and 29 December 2011.

85. A notation appears shortly before the 18 April 2011 entry that the payment for these visits are “to go through third party/public liability”. She concluded the treatment on 4 January 2012. Ms Wiltshire kept Marissa Brenton of Chubb Insurance informed as to progress.

86. On 9 May 2011, Ms Wiltshire provided a follow up report to Dr Sor as follows:

“Outcome:

Nicole’s symptoms are consistent with her mechanism of injury and unfortunately being a joint ligamentous injury the timing of the fall whilst heavily pregnant means the ligaments were softer and more likely to overstretch. Care of her baby also burdens the lumbopelvic area.

Nicole will need quite considerable supervised Physiotherapy – more so small group classes to improve mobility and strength – both of which are poor following 6 months of persistent pain.

Due to Nicole’s pain levels I am treating her 2x/week for 6-8 weeks and then lengthen to 1x/week or fortnight and progressing as able with core stability. I foresee Nicole will take some time to resolve.”

87. The plaintiff underwent a CT of her lumbar spine on 11 May 2011. The results were essentially normal. She was not taking prescription pain medication over this period, but, as Dr Deveridge points out in his report of 24 November 2011, she was breastfeeding, and could only take simple medication such as Panadol osteo, “which does not really help” (Exhibit K).

88. The plaintiff’s first specialist appointment is the medico-legal appointment with Dr Deveridge, who recommended conservative treatment such as physiotherapy, which the plaintiff continued with until early 2012.

89. The plaintiff consulted Dr Abi-Hanna on 6 February 2012 but did not mention back pain. She had returned to work in early 2011, and was struggling both with competitors undercutting her and with having to reorganise her work in order to cope with back pain. There were increasing tensions at home during 2012 and the plaintiff and her husband separated in December 2012. The plaintiff moved to the South Coast to be closer to her mother. The family home, which was subject to a large mortgage, was first rented out and then sold.

90. The plaintiff suffered a nervous breakdown in July 2013 and shut down her business at about the same time. She commenced psychological counselling with Ms Lyn Page on 17 August 2013 and then consulted Dr Burhan, a psychiatrist, on 5 June 2014. She is still receiving treatment from Dr Burhan. Further details of the plaintiff’s treatment are set out in the section of this judgment detailing the medical evidence.

91. Although unemployed, the plaintiff attended the Australian Professional College to complete courses in finance and mortgage broking. She had difficulty attending the lectures and obtained a certificate from her psychologist. Her business, Harrington Park Financial Services, is currently unregistered for GST. Her company is still “running”, but no work is being received. Further details of the plaintiff’s loss of income are set out in the section of this judgment on economic loss.

The plaintiff’s claim for damages

92. On behalf of the plaintiff, Mr Lidden SC provided a schedule of damages comprising 33% non-economic loss ($189,000), past economic loss of $149,300, future economic loss of $470,347, past superannuation at 11% net (corrected in submissions to 8% net) and future superannuation at 13.52% net (corrected to 10%, by reason of the plaintiff’s structure of profits in her business income tax), as well as past care of $63,335 and future care at 8 hours per week at $43 per week (corrected in submissions to provide for an alternative grant at $27.96 per hour if the future care is gratuitous, there being no evidence in relation to future paid care).

93. There is no forensic accountant’s report in relation to economic loss. However, the plaintiff’s business and personal income tax returns had been provided and an agreed schedule has been prepared by the parties in relation to the method of calculation of economic loss.

The defendants’ failure to provide a schedule of damages

94. Although required by the Practice Note to do so, the defendants did not provide any schedule of damages. Mr Sleight has provided written submissions stating (at paragraphs 89 and 91) that no claim is made out on the evidence for past and future economic loss, that the plaintiff fails to meet the threshold for past and future domestic assistance (paragraph 69) and, while past out of pocket expenses have been mathematically agreed, has invited me to disregard all of them. He has not addressed in relation to future out of pocket expenses, but it is my understanding that he considers no allowance should be made.

95. It is not uncommon for there to be a wide discrepancy between the damages sought by the plaintiff and defendant. In Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203, Letherbarrow SC DCJ noted (at [47]) that the defendant’s schedule of damages was approximately 5% of the amount sought by the plaintiff. In the present case, the defendants effectively submit (although not providing a schedule to this effect) that the plaintiff should be awarded nothing.

96. The practice of parties in personal injury proceedings of making submissions to the court of this extreme nature is unhelpful to the court. The result of this practice is that both parties adopt an extreme position rather than assisting the court to arrive at a reasonable and sensible range of appropriate damages for the injuries and disabilities in question. An accurate estimate of appropriate damages, set out in the schedule of damages required by the District Court Practice Note handed out by the Judicial Registrar when matters are set down for hearing, should be expected in all personal injury proceedings commenced in this court.

97. When parties appeal from the quantum of damages, the absence of such information at first instance is as unhelpful to the appellate court as it is to the trial judge. Parties who make no submissions (beyond negative statements) are then able to run what amounts to an entirely different case to that conducted at the trial in relation to the assessment of damages. That is not a practice which is conducive to the efficient disposal of factual issues at the trial.

The plaintiff’s injuries, treatment and medical evidence

98. The factual situation in these proceedings is unique, in that the plaintiff attended hospital the following day for a caesarean to be performed. It is first relevant to note by reason of her advanced stage of pregnancy, she was suffering from a condition called ligamentous laxity. Dr Deveridge explains this condition in his report of 10 June 2014 (Exhibit K):

“As previously reported she received treatment with physiotherapy – the therapist makes a relevant comment that she would have had ligamentous laxity around the injury site due to the late stages of pregnancy, rending her more susceptible to injury.”

99. Dr Deveridge’s report have clearly been read by the defendants’ expert, Dr Schutz (see his reference from his report of 21 August 2014) and neither this diagnosis, nor its relationship to the injury, are challenged, or even discussed. This is a significant gap in the evidence of the defendants.

100. The defendants challenge the circumstances in which the plaintiff failed to seek medical help about her back pain at all between her first consultation of Dr Sor nine days after the baby was born (12 November 2010) until 2 March 2011 is viewed by Dr Anthony Smith in his report of 12 June 2014 (Exhibit 3, page 3) as being implausible. Dr Smith considers that if her lower back and back pain were significant, it would have come to medical attention “long before” she first mentioned it to Dr Sor on 2 March 2011. She consulted Dr Lam on 16 January 2011 but did not refer to back or leg pain.

101. The defendants submit that the plaintiff’s failure to complain of symptoms of pain to her general practitioner when she had the opportunity to do so must substantially undermine the plaintiff’s case, particularly as there is no pathology that supports the symptoms from which she is suffering (which is discussed in more detail below).

102. As noted above, the explanation the plaintiff gives is that she thought her back would get better. She was aware of the changes to her muscles in the very late stages of pregnancy, as she had had the same condition in her previous two pregnancies, and she hoped that the pain would pass with time.

103. A long gap between an injury and complaint to a medical practitioner is always significant, for the reasons explained by the New South Wales Court of Appeal in Nominal Defendant v Kostic [2007] NSWCA 14 and Whalan v Kogarah Municipal Council [2007] NSWCA 5. In the present circumstances, however, the circumstances in which the plaintiff had undergone a caesarean operation and was nursing a baby are, in my view, of considerable significance. The plaintiff had not simply had a baby; she had undergone a surgical procedure of a significant nature. Her mother came to live with her for four weeks after the birth to help her. She was not able to perform most tasks (including driving) until January 2011. It was reasonable for her to hope that the situation would improve with time. In particular, it would have been unwise for her to take medication while she was breastfeeding, for the reasons explained by Dr Deveridge.

104. The plaintiff said she saw Dr Sor on 2 March 2011 because she had not improved, and she then commenced physiotherapy with Rachael Wiltshire on 28 March 2011. Ms Wiltshire’s notes (Exhibit A) set out in detail the plaintiff’s description of back pain over the whole of the period from 28 March 2011 to 4 January 2012. Dr Sor’s covering letter of 2 March 2011 confirms that the plaintiff was taking Panadol Back and Neck Long Lasting by this stage. Ms Wiltshire’s notes contain references to the plaintiff suffering pain, such as when she leaned into the baby’s pram to pick up groceries (20 May 2011), noting that the plaintiff started crying when describing her worry about “not getting better” (13 October 2011).

105. The plaintiff tried strapping, strength classes, stretching exercises and other methods but on 26 October 2011, the sharp pain was unchanged. She was having problems sleeping (7 December 2011) and began to suffer from headaches (29 December 2011 and 4 January 2012).

106. It was put to the plaintiff in cross-examination that her sole motive for visiting the physiotherapist was that she had consulted her solicitors for the purpose of commencing proceedings. Attached to the documents produced by Ms Wiltshire is a letter from the solicitors for the plaintiff and an authority signed by the plaintiff. This letter is dated 23 March 2013, not 2011, and this submission arises from an error as to the date when the plaintiff signed the relevant authority. The plaintiff clearly did consult solicitors later in 2011, as she was sent to Dr Deveridge at that time, but she commenced physiotherapy beforehand.

107. As is set out below, the reports paint a picture of the plaintiff being increasingly unable to cope, at first physically and then psychologically, with pain. The question is what to make of these reports in circumstances where the plaintiff’s prior excellent medical and work history and her credibility as a witness (which Mr Sleight attacked only faint-heartedly) make the significant changes to her life difficult to attribute to other causes.

The plaintiff’s medico legal reports

Dr R Deveridge

108. Dr Deveridge has provided four reports dated 24 November 2011, 10 June 2014, 2 April and 12 May 2015.

109. Dr Deveridge states in his report of 24 November 2011:

“Your client has moderate ongoing disability with persistent low back pain, stiffness and non-verifiable radicular complaints referred to the right lower limb. Although the CT scan has excluded a significant disc protrusion, her back pain is mechanical in nature, and may well represent an annular disc tear. On the balance of probabilities, residual back and right leg disability is attributable to the fall on 2.11.2010.

During the advanced stages of pregnancy, there is significant ligamentous laxity in the spine, which may well have predisposed to a mechanical derangement. No significant pre-existing or pre-disposing conditions were identified.

She is considered unfit for repetitive bending, heavy lifting, carrying, twisting, pushing, dragging and prolonged periods of fixed spinal posture. She has reasonably had to increase her contracted workers hours to fulltime on the basis of this injury. This will be necessary until such time as there is significant improvement or recovery from her injury. She is also receiving gratuitous domestic assistance, as detailed above. This would amount to about 6 hours weekly of domestic care. She receives some minor personal assistance (she can’t cut her toenails or shave her legs).

Treatment will remain along conservative lines. She could require intermittent analgesic and/or anti-inflammatory medication. Physiotherapy ($70 per session) can be provided on a regular basis for up to two years following injury of this type. Thereafter it is unlikely to alter the course of the disability. Hydrotherapy ($60 per session) would also be appropriate at this stage. No surgically treatable injury has been identified.

Her condition is at a plateau, but there is still scope for further improvement over the next 12 months or so. The lack of improvement to date, does suggest that further recovery is going to be very slow, gradual and possibly incomplete. Her condition will stabilise in another 12 months time. The prognosis generally is uncertain, but guarded at this stage.”

110. Dr Deveridge notes that she was having difficulty driving, as her job required her to frequently get into and out of her car at sales outlets, and that the worker who had previously been required for 20 hours a week now worked 40 hours, which had halved her income.

111. Dr Deveridge next saw the plaintiff on 29 May 2014. His conclusions were as follows:

“Your client's condition has not materially altered since I last examined her. She has moderate residual disability with chronic low back pain, stiffness and non-verifiable radicular complaints referred to the right lower limb. She clearly suffers from mechanical low back pain, which is consistent with the mechanism of injury described. She has some mild trochanteric bursitis at the right hip. On the balance of probabilities, residual back and right leg disability is attributable to the fall on 2.11.2010. No significant pre-existent or pre-disposing conditions were identified.

She is going to be permanently unfit for repetitive bending, heavy lifting, carrying, twisting, pushing, and dragging. She should avoid prolonged periods of sitting or standing. She has been reasonably unable to function in her pre-accident capacity as a finance broker. Driving is limited to short and infrequent local trips for essential purposes only. She is not expected to return to gainful employment for which she would be otherwise suited by way of education and experience.

She is receiving gratuitous domestic home care assistance as detailed above. This would amount to at least 6 hours weekly on a long-term basis. It may need to be quantified by an occupational therapist from a home care service.

Treatment will remain along conservative lines. She will require ongoing medication indefinitely. Physiotherapy $80 per session has reasonably been ceased, and will not alter the course of her disability at this stage. A few sessions of formal hydrotherapy ($70 each), and provision of an annual pass to a heated swimming centre for unsupervised water based exercises, would be appropriate. She needs to improve core strength and to lose weight, although this is impractical with her limited exercise tolerance. No surgically treatable injury has been identified.

Her condition is now chronic and stabilised. She has reached maximal medical improvement. The prognosis remains guarded.

There is considerable stress reaction, depression and anxiety surrounding her physical injury. This is outside of my area of expertise and should be addressed by relevant specialists.

Her occupational pursuits, activities of daily living and her ability to enjoy life generally, have all been substantially reduced by the subject accident.”

112. He notes that she had been receiving treatment from a psychologist and is due to see a psychiatrist, as well as being placed on a number of medications. In particulars, he notes that she has had to cut down her work and has continued to reduce her work with substantial loss of income; she now only arrange referrals of past customers for loans on occasion.

113. In his report of 2 April 2015, Dr Deveridge notes the plaintiff now required “strong Opiate type analgesia to control her pain”. He noted that she provided “similar complaints to the previous occasion” in that her back pain was “always there but varies in severity”. She could sit for a maximum of 30 minutes but with increasing pain, and stand up for an hour providing that she moved around. There were restrictions in her daily activities, she was still considerably overweight (at 115 kgs) and was still having problems driving a car; although given a lift to the doctor’s surgery for the appointment, she had still had to stop and stretch on the way. His conclusion was that on each of the three occasions he had examined her, her complaints were “consistent, reasonably and I have no reason to doubt them”. They were now complicated by a psychiatric overlay, for which prognosis had been reported as “poor”. He had the following to say about the plaintiff’s domestic home care assistance:

“She requires domestic home care assistance as detailed above. I consider that this would amount to at least six hours weekly on a long-term basis. One of the independent assessors (Dr. E. Schutz) has indicated that she did demonstrate her ability to mow the lawn for six to eight months after the accident. She states that this was the case, but she was taking Endone in order to do that task, and she was in more pain afterwards. I consider that she has reasonably ceased home and yard maintenance on the basis of her chronic pain.

Treatment will involve ongoing medication indefinitely. She will need to see her general practitioner every month or two for repeat prescriptions. Physiotherapy ($85 per session) and/or hydrotherapy ($75 per session) are not likely to alter the course of her disability some 4 1/2 years after the fall. However a reasonable course of therapy, say 9 sessions over three to four weeks, could be supportive in nature. It may help her to get back to an unsupervised exercise programme, and to lose some weight. She does not require invasive treatment (guided injections or operations).

Future out of pocket expenses

182. The plaintiff claims a cushion of $30,000 for future medical expenses. Mr Lidden submitted that this was a long term condition (T 213). I note Dr Burhan’s concern that the precise nature of the plaintiff’s back pain needs to be identified, and that she has continued to consult him in relation to her psychiatric issues until shortly before these proceedings.

183. The defendant’s submission is that the plaintiff should not be awarded any future medical costs, because “no one can find any pathological or frank injury that's caused this” (T 203). Mr Sleight went on to say that “no one here can actually find a frank injury caused by this accident, and it's said to be unattributable to any frank injury”. Any claim for psychiatric injury should be disregarded as unrelated to the accident.

184. I am satisfied that the plaintiff will require significant psychiatric counselling in order to resolve her ongoing symptoms. I have very little information about the cost, but some allowance must be made. Additionally, the plaintiff may require other treatment for her back pain such as hydrotherapy, to which several of the reports referred.

185. As to medication, all of the plaintiff’s expert reports comment on the undesirability of the plaintiff continuing to take strong medication of this kind, and I am reluctant to make any significant allowance for such expenses.

186. While I consider the sum of $30,000 to be high, the absence of careful analysis of this head of damage by the defendants makes it difficult for me to determine what reductions, if any, should be made. Accordingly I propose to award the sum of $30,000 proposed by the plaintiff.

Past and future economic loss

187. The plaintiff at all relevant times up until ceasing work operated her own business. The parties agreed upon a method of approach to economic loss in relation to the mathematically agreed calculations set out below:

Date	Company	Individual	Net Amount Per Week
30 June 2007	Taxable: $77,809 Net: $57,664	$1109
30 June 2008	HPFS Gross Income: 189,975 Wages: 81,654 Contractor: 71,700 Taxable Income: 1145 (L)	Gross: $76,555 Taxable: $15,279 Net: $51,488	$990
30 June 2009	HPFS Gross Income: 138,430 Wages: 62,709 Contractor: 86,790 Taxable income: 41,824	Gross: $59,327 Taxable: $53,920 Net: $42,935	$826
30 June 2010	Gross Income: 142,184 Wages/All other expenses: 73,129 Contractor: 38,172 Taxable income: Nil	Gross: $44,835 Taxable: $40,292 Net: $33,750	$649
2 November 2010	DOA
30 June 2011	Gross Income: 119,414 Wages/All other expenses: 54,013 (loan to shareholder 5,100) Contract: 50,900 Taxable Income: 1080 L	Gross: $25,290 Taxable: $28,701 Net: $15,310	$352
30 June 2012	Personal Income 12, 109-916.35 HPFS Gross Income: 124,875 Wages/All other expenses: 49,673 Contractor: 58,701 Taxable Income: 1,116 (L)	Gross: $16,172 Taxable: $12,109 Net: $11,193	$215
18 March 2013	Move from Camden
30 June 2013	HPFS Gross Income: 115,614 Contractor: 48,567 Wages/All other expenses: 24,748 Taxable Income: 24,175	Gross: $4279
30 June 2013	Personal Income from pension: 5104 Dividends Franked amount: 10,000 Taxable income: 16,466-0=16,466

Past economic loss

188. The plaintiff told the physiotherapist and Mr Glancey that she intended to take 6 months off work following the birth of her child. The plaintiff’s proposal of $350 net per week takes this up to 1 July 2013, in part because of the impact of competition on her business, but thereafter seeks $1000 net per week to date.

189. Taking into account the plaintiff’s longer periods of part-time employment following the birth of her other children, and the increased strain on the household of having her other children and her husband’s child to look after, as well as allowing for the plaintiff to have some form of capacity for employment during this period, I consider that the allowance of $350 per week for the whole 239 weeks should be made, which would result in a calculation of $350 x 239, which is $83, 650.

Past superannuation

190. Past superannuation, noted in the schedule at 11%, was agreed in submissions to be claimable at 8%. 8% of $83,650 is $6,692.

Future economic loss and superannuation

191. The plaintiff brings a significant claim for future economic loss. Essentially she claims that the impact of her disabilities on her future employment should be assessed at $750 per week (less 15% for vicissitudes) together with superannuation (at the revised figure of 10%) for the rest of her working life to the age of 67, a total of $470,347.

192. Mr Sleight, in addition to his submissions as to the plaintiff’s lack of entitlement to any damages, puts to me that the plaintiff is likely to make a complete recovery from her psychiatric condition, and that I should infer as much, despite there being no actual medical evidence to this effect.

193. The submissions on this issue give rise to a problem frequently encountered in personal injury proceedings. In State of New South Wales v Moss (2000) 54 NSWLR 536 at [87], Heydon JA noted:

“[87] … The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.”

194. While the plaintiff has ceased to operate her business, she does have a residual working capacity. She has held positions of responsibility and has a good working record. Given her ability to set up a business for herself, she would also be able to work for herself if necessary, which would enable her to tailor her working hours and duties around the physical limitations arising from her ongoing back pain problems. How should these factors be taken into account?

195. Both parties have provided calculations which are at the extreme end of the spectrum. While I have the agreed calculations as to the plaintiff’s earning capacity in her business, this is not the only kind of work the plaintiff can do. With her past work history and training she could perform a wide range of business activities, subject to her ongoing psychiatric and back pain issues.

196. Notwithstanding the difficulties I have in assessing damages for future economic loss, I am required to make an assessment that both identifies and takes account of the different possible outcomes for the plaintiff in pursuing the opportunity to operate her own business, and to adjust the award of damages to reflect that assessment: Verryt v Schoupp (2015) 70 MVR 484 at [76] – [78]. In the present case, that is made much easier because the plaintiff actually was conducting such a business, whereas in Verryt v Schoupp the proposal was a future plan.

197. The words “must” and “fair”, in the extract of Heydon JA’s judgment in State of New South Wales v Moss set out above, were italicised in the discussion of these principles in Verryt v Schoupp, and stressed as being of paramount importance.

198. In those circumstances, doing the best I can (to paraphrase the words of the test in New South Wales v Moss), I consider that the figure of $350 net per week more accurately reflects the plaintiff’s future economic loss, and that use of this figure as a base, allowing for vicissitudes of 15%, represents a more rational assessment of the degree to which the plaintiff’s disabilities impact upon her employability. The plaintiff would also be entitled to future superannuation at 10% on this sum.

199. The future economic loss sum is thus 737.8 x 350 x 0.85 which is $219,495.50, which for convenience I round up to $219,500.

200. Future loss of superannuation at 10% would be $21,950.

The claim for domestic assistance

201. The plaintiff’s claim for past care is on the basis of 10 hours per week at $26.50 an hour which would allow for “perhaps teenagers doing something – and not many of them do” (T 214). Mr Murko’s evidence was that because of his long hours at work, he would have been doing no housework at the home at all including work outside in the garden.

202. With one exception (discussed in more detail below), this was the extent of the plaintiff’s submissions in relation to past care. The defendants’ submissions (written submissions, paragraphs 69-72) were similarly brief. This brings me to make some general observations as to the difficulties submissions of this kind make for the court. These observations are not critical of counsel in any way; such submissions are generally made in this fashion and, but for the approach taken to these issues by the New South Wales Court of Appeal (most recently in Sampco Pty Ltd v Wurth), would not be made at all.

203. Claims for domestic assistance are often substantial in size. The traditional method of proving a requirement for assistance has been a brief statement (generally provided by an orthopaedic surgeon or a psychiatrist), supplemented by estimates by the plaintiff and on occasion members of the plaintiff’s family as to those household tasks which are performed and the amount of time they take.

204. The adequacy of these methods has been the subject of criticism by the New South Wales Court of Appeal. In Gordon v Truong [2014] NSWCA 97, the Court of Appeal noted at [25] that awarding damages for this head of loss is “anomalous” in that it requires “an assessment of how the plaintiff will cater for his [her] accident-caused disabilities in the future, a matter which is usually irrelevant” and, by inference, in the past. Simpson JA notes at [30]-[31], in relation to future economic loss:

“[31] On the facts of that case, the court held it was not appropriate simply to “pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future“: at [24]. In my view, the same conclusion should follow in the present case and the trial judge was correct to refuse to make such an award.

[32] If a different view were taken, a calculation of an award starting immediately and continuing throughout the life expectancy of the plaintiff could not be countenanced consistently with principles identified in Miller. The only approach available is to pluck a figure (to be described as a buffer) out of the air. If that course were to be taken (which I do not favour) the figure should not exceed $40,000. That figure takes into account the likelihood of the plaintiff not obtaining commercial assistance immediately and the likelihood that his other health problems will at some point overwhelm the limited needs assessed as resulting from the accident.”

205. Macfarlan JA agreed, noting the restrictions in relation to Miller v Galderisi [2009] NSWCA 353 to the facts of individual cases. Basten JA dissented, although noting that Miller v Galderisi was a case “decided on its own facts” (at [128]). His findings at [135] were as follows:

“[135] There is no reason to depart from the finding of the primary judge that the plaintiff required domestic assistance between 2 to 4 hours per week. It was not established that that assistance will be provided gratuitously in the future. Section 141B has no application unless that is established. The plaintiff is entitled to an award of damages for domestic assistance at commercial rates for 3 hours per week for the remainder of his life. His life expectancy is 30 years. The commercial rate of assistance is $35 per hour. Applying the appropriate multiplier, the plaintiff claims to be entitled, in addition to the damages awarded, to an award of $86,310 under this head of damages. I would therefore allow the cross-appeal and direct the parties to undertake the necessary calculations to give effect to these conclusions.”

206. However, in Sampco Pty Ltd v Wurth, the Court of Appeal took a more stringent view as to how evidence of both past and future domestic assistance should be provided, and I have relied heavily upon that decision.

Past domestic assistance

207. The plaintiff did not have time off from her injury in the generally accepted sense, in that she went to hospital the next day for a caesarean operation to be performed. She was unable to drive, and thus, in my view, to work, for six weeks, following which there appears to be a gradual return to work, allowing for such incidental factors as the Christmas and January holiday period. I have noted elsewhere the plaintiff’s references, in the course of her physiotherapy and to Mr Glancey, to have six months off after the birth of her child. Given that there are two independent notes to this effect by persons taking her medical history, I am of the view that I should accept that this was her intention.

208. The plaintiff was receiving physiotherapy for her back throughout the whole of 2011. She refers on occasions when she had felt pain, such as when she leaned into a pram to pick up groceries (20 May) and to ill-health of herself and the baby (e.g. 20 June and 1 August) but not to being unable to perform tasks she had previously been able to perform. Although Dr Sor does not record the plaintiff consulting him on a regular basis about pain issues, reports from Rachael Wiltshire, the physiotherapist, were sent to Dr Sor on 9 May and 8 August 2011, which is suggestive of monitoring of an ongoing problem.

209. Counsel for the defendants pointed to the absence of pain medication over this period of time, although she was taking other drugs such as Ventolin. However, the plaintiff was breastfeeding over this period and her explanation of her reluctance to take painkillers apart from over the counter remedies (the taking of which I note are to be confirmed by the physiotherapist’s notes) is an acceptable one.

210. The plaintiff saw Dr Abi-Hanna on 6 February 2012 about a fall on stairs. She does not refer to her back pain, which Mr Sleight submitted was of significance. However, the plaintiff had seen the physiotherapist only a month previously, on 4 January 2012, and reading between the lines of the notes taken by Ms Wiltshire, her condition remained much the same. The use of words such as “worse” or “stiff throughout” are not suggestive of being injury free.

211. The plaintiff’s medical condition during 2012 is, however, more difficult to determine. She had consulted solicitors and obtained the first of her medico legal reports. The plaintiff was clearly struggling during this period of time. Her expectation that her husband would assist with the housework, her disputes with his son as to his refusal to do the housework, and conflict with her daughters over these issues, is apparent, and appears to have played a role in the plaintiff’s separation from her husband in December 2012. The plaintiff and her husband rented out the matrimonial home, which was subject to a large mortgage, and she moved to Mount Warrigal on the South Coast in order, she said, to be closer to her mother. It is during this period that her health and well-being significantly declined.

212. The plaintiff’s mother was present at the scene of the accident and if her assistance were relied upon in relation to homecare, could have been a witness in the plaintiff’s camp. While Mr Sleight made no Jones v Dunkel application in relation to calling her, I should note that, if he had, may have been a submission of some force.

213. The breakdown of the marriage meant that, for practical purposes, both the plaintiff and her husband had to leave the matrimonial home. It was first rented out and then sold, presumably for the purpose of effecting a settlement of the property issues between the parties for the purposes of the Family Law Act 1975 (Cth). No documents have been tendered in this regard.

214. Varying views have been expressed by medical practitioners as to the plaintiff’s entitlement to domestic assistance. Dr Teoh, who provided a medico legal report on 10 April 2014, stated:

“She does not require domestic assistance, although she has required the assistance of her daughter.”

215. However, Dr Deveridge in his report of 2 April 2015 at page 3 opines:

“She requires domestic home care and assistance as detailed above. I consider that this would amount to at least 6 hours a week on a long term basis.”

216. In Sampco Pty Ltd v Wurth at [83], Basten JA noted, in relation to hourly calculation of this sort:

“[83] The judge was entitled to put little, if any, weight upon hourly calculations provided by medical practitioners. No medical practitioner was qualified as expert in assessing the number of hours required for gardening, home maintenance or any other activity which might go into the purported assessment. It is difficult to imagine that the practitioners called in the present case could have been so qualified. No objection was taken to the evidence which was, on its face, inadmissible: however, the mere fact that it was admitted without objection did not require the trial judge to give it any weight at all. The real value of medical evidence in this area is in an assessment of the true extent of any physical or mental disability suffered by the plaintiff. That is because the key question is not what assistance the plaintiff has been provided by others, but the “reasonable need for the services to be provided“.”

217. Evidence called in these proceedings, from the plaintiff’s daughter and her former husband as well as the plaintiff, shares the same kind of generality as that complained of by Basten JA in Sampco Pty Ltd v Wurth at [84]. Mr Murko’s evidence was that:

“I had to come home and do housework. I was probably hard on the girls but I needed them to help me cause [sic] I was doing 50 hours a week [at his paid place of employment]. Yeah, so it was better that we separated cause all we did was argue in front of the kids and‑‑” (T 179)

218. Prior to that, his marriage had been “heaven from my last marriage cause I didn't have to do anything” (T 177).

219. The plaintiff’s daughter’s evidence was similar imprecise:

“Q. I want to ask you some questions about domestic chores, housework, do you understand?

A. (No verbal reply)

Q. When this accident happened of course you were only 12 or 13?

A. Yes.

Q. Did you do anything much by way of domestic chores at home at that time?

A. Clean my room.

Q. After your mother was hurt did anything happen with the amount of domestic chores you had to do at home?

A. Yes.

Q. Tell me what happened?

A. We had to basically do a lot more than what we had to clean the bathrooms, go shopping with mum so she could carry, so we could carry the groceries, we'd help do the lawns. Yeah, bathroom, mopping, vacuuming, dusting.

Q. Anything to do with clothes?

A. We had to wash our own clothes, we were washed our clothes and me and my sister did my mum's.

Q. Did you have a clothesline at the first house that you were living in at Harrington Park?

A. Yes, we did.

Q. Who put the clothes on the line after the washing after your mother hurt herself?

A. Me and my sister.” (T 152)

She said that since having the accident, her mother was “angry all the time” and “depressed” (T 154). In cross-examination, she revealed that there were family disputes and that she had taken on a part time job in order to have more responsibility and earn her own income (T 158). She stated at T 159:

“Q. What you just go to work and leave your mum to do everything would you?

A. Yeah, I would do what my mum's asked me to do but I do a lot more now, ‘cause she can't do it, or she can do it but she's in a lot of pain afterwards.

Q. Well thank you, she can do it but you - even if your mother didn't have this injury, as you got older you'd do more of your own‑‑

A. I couldn’t‑‑

Q. ‑‑domestic tasks, couldn’t you?

A. I couldn't tell you that, no.

Q. Well don't you think it's likely that as you become an adult living in the house, you wouldn't leave everything up to your mum would you?

A. I don't know.” (T 159)

220. While I have carefully noted the plaintiff’s evidence in relation to her ongoing disabilities during this period of time, the fact remains that she was still able to drive a car and go to work, and that she was still mowing the lawns when she saw Dr Deveridge. Her real problems in performing housework seem to date from what she calls her nervous breakdown in July 2013, following which time she was too depressed to get out of bed, some times for a week or two at a time, rather than simply because of back pain.

221. Noting the criticisms made by Basten JA, and in particular his summary of the requirement of a trial judge to set out matters of the kind identified at [92], I am of the view that the plaintiff in these proceedings cannot establish the requisite six hours of assistance per week for past domestic assistance. This is because:

1. Her evidence of need is limited to “heavier” domestic duties without precise identification of what these were and how long they took (Sampco Pty Ltd v Wurth at [92](a)).

2. As is noted above, the medical reports providing assistance include opinions falling outside the expertise of the medical practitioners (Sampco Pty Ltd v Wurth at [92](b)). Additionally, not only were the defendants’ medico legal experts of the view that the plaintiff did not suffer from an injury requiring assistance but Dr Teoh, the plaintiff’s medico legal expert, was of the view she did not require such assistance.

3. It is important to distinguish between the plaintiff’s back injury and her psychiatric problems. Having regard to Dr Teoh’s considered view, it is difficult to see how the plaintiff’s psychiatric problems can give rise to an injury preventing her from doing housework, particularly prior to July 2013 (Sampco Pty Ltd v Wurth at [92](c)).

4. It is necessary to distinguish between services provided to the plaintiff and general activities of the family, particularly in regard to the likelihood that the plaintiff would not have been expected to do all the housework for some quite long period of time following the birth of her youngest child.

222. Taking all of the above into account, and applying the principles in Sampco Pty Ltd v Wurth, the plaintiff has failed to make good her claim for past domestic assistance.

Future domestic assistance

223. As was the case in Sampco Pty Ltd v Wurth, the plaintiff’s claim for future domestic assistance depends upon satisfying the requirements of which Basten JA calls at [94] “intensity and longevity” as set out in s 15(3) Civil Liability Act 2002 (NSW). In other words, they depend upon the same kind of precise evidence as is required for past assistance.

224. In the present case, the plaintiff is in a considerably better position than the plaintiff in Sampco Pty Ltd v Wurth. There can be no doubt that the plaintiff has abandoned and given up her business, but is unable to perform her duties at home, and has arranged for her estranged husband to return to the home to help her.

225. The first issue is whether future domestic assistance is available at a lower rate of hours per week at commercial rates: Miller v Galderisi. The second is whether the plaintiff is able to pass the threshold for future care on a non-commercial basis.

226. Mr Lidden SC elided the two by claiming for eight hours per week future care at $43 per week totalling $326,937. He conceded, however, that this would be the amount to be awarded only if that future care were paid. If the future care is gratuitous, it should be costed at a figure of $27.96 per hour, a sum which I was left to do.

227. Part of the problem is what to make of the fact that the plaintiff is currently being assisted by her former husband who has returned home to live (with the knowledge and permission of Centrelink). This is something of a grey area in relation to future home assistance. Clearly, Mr Murko is unlikely to wish to remain living with his former wife on any long-term basis and, equally clearly, the assistance he provides in his capacity as her former husband is not the same as that of a person who is tied to the plaintiff by obligations of family or even kinship.

228. Mr Murko’s evidence is that he has a busy working week, and I accept this, in that he is employed full time, often working 50 hours per week. Nevertheless, the amount of assistance he is likely to provide in the future, in the form of the hours of work, or even how long he will remain living with her, is unknown.

229. As is noted above, the plaintiff’s daughter’s evidence is similarly limited. She and the plaintiff both say there are days when the plaintiff cannot get out of bed, and that she requires assistance with a range of tasks, but without the precision required. In Sampco Pty Ltd v Wurth, Basten JA notes, in relation to such evidence, at [99]:

“[99] There is a question as to whether the trial judge was correct to deal with the matter on the basis of likelihood, if by that it was intended to refer to probability. The judge referred to the decision of this court in Miller v Galderisi at [15]. That paragraph merely referred to the absence of evidence that the gratuitous assistance then being provided would cease at some time in the future. The court also said:

The evidence accepted by the primary judge [as] the additional domestic assistance required as a result of the accident, assessed at four hours per week, was, since the accident and at the time of trial, being provided by the respondent’s wife with limited assistance from his son. Whether that assistance would continue to be provided by them on a gratuitous basis was a factor which the primary judge was entitled to take into account. If that circumstance were to change in the future, domestic assistance would, foreseeably, be required from a commercial provider. However, that expense was neither immediate nor inevitable. No doubt the likelihood of the contingency would increase with time, but other factors would have a contrary tendency.”

230. In addition to these problems, there are the problems identified by Basten JA at [100]:

“[100] The other variables included the plaintiff’s life expectancy, his pre-accident medical conditions, the disabilities resulting from the pre-existing conditions, the need for assistance resulting from age alone and the circumstances of the primary carer, his wife. The court then addressed the question as to how these factors might be assessed by reference to the principles derived from Malec, noting that “the exercise is better described as a form of speculation guided by knowledge of the plaintiff’s past and expectations, derived from general experience, as to the future.”

231. Unlike Sampco Pty Ltd v Wurth, the present case is run on the basis that there will be likely to be a change in circumstances where gratuitous assistance will cease and commercial assistance will be required. However, when this occurs and what is involved involves speculation as to future events in what Basten JA calls “foreseeable but unpredictable circumstances” (at [102]).

232. Ultimately, however, the plaintiff’s evidence on this issue is as unsatisfactory as that of Mrs Wurth (as set out at [104] and [105] of Basten JA’s decision). There is no doubt that the decision of Sampco Pty Ltd v Wurth raises the bar significantly in relation to requiring expert, detailed and precise evidence as to claims for past and future care. I understand an application for leave to appeal to the High Court will be made, but I am bound by stare decisis principles to require the kind of precise evidence Basten JA identifies as necessary to be given, as to both the tasks involved and the hours, which should preferably supported by a report from a qualified person rather than brief statements in medico legal reports for which the reasoning is not exposed. The claim for future care accordingly has not been made out.

233. Mr Sleight draws my attention to Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95 at [81] in relation to the vicissitudes of the normal ageing process. In view of my rejection of the plaintiff’s claim for future care it is not necessary for me to deal with this issue, but I note the applicability of such principles in future care claims generally will result in significantly reduced claims, even where (unlike the facts in that case) there is no other cause of injury to take into account.

Final remarks

234. I will enter judgment for the plaintiff. The parties have leave to bring in Short Minutes of Order reflecting the mathematically agreed calculation of damages. Liberty to apply is also granted in relation to costs.

Orders

1. Judgment for the plaintiff against the first and second defendants.

2. Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum.

3. First and second defendants to pay plaintiff’s costs.

4. Liberty to apply in relation to costs.

5. Exhibits retained for 28 days.

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Decision last updated: 27 July 2015