Neal v. Callplum Pty Ltd
[2007] QDC 78
•2 May 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Neal v Callplum Pty Ltd [2007] QDC 078
PARTIES:
CECILY THERSIA NEAL
Applicant
V
CALLPLUM PTY LTD
Respondent
FILE NO/S:
BD5609 of 2001
DIVISION:
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
2 May 2007
DELIVERED AT:
Brisbane
HEARING DATE:
30 November, 1 December 2006
JUDGE:
McGill DCJ
ORDER:
Judgment for the defendant with costs.
CATCHWORDS:
NEGLIGENCE – Personal Injuries – fruit shop in shopping centre – whether plaintiff slipped and fell on grape near shop – credibility – plaintiff failed on facts.- quantum assessed
COUNSEL:
M. J. Taylor for the plaintiff
A. F. Maher for the defendant
SOLICITORS:
Wallace Davies for the plaintiff
Queensland Law Group (Clayfield) for the defendant
The defendant operated a fruit shop in the Deception Bay shopping centre, located near the entrance to the supermarket in that shopping centre. On 17 February 2000 the plaintiff was at the shopping centre near the defendant’s fruit shop when she slipped and fell heavily, causing injury to her spine. The plaintiff alleges that she fell because she slipped on a grape, and that its presence on the floor was due to the negligence of the defendant. These propositions are disputed by the defendant, and there is also an issue in relation to quantum. The plaintiff had previously suffered an injury to the spine, but alleges that as a result of this fall there was a permanent aggravation of that injury; the defendant’s case is that the fall caused only a temporary flare up in symptoms, the effects of which fairly quickly abated.
Liability – the plaintiff’s account
The plaintiff said that that day she was at the shopping centre in the late morning, and went to the post office to pay the phone bill: p 11. She then walked towards the supermarket, which involved walking past the defendant’s shop.[1] She was heading towards the supermarket to buy cigarettes: p 12. As she walked past the defendant’s shop at about the point where there is a man standing in the photograph that became Exhibit 1 she fell.[2] The photograph was taken about a year after the fall, and the plaintiff said that the position of the display bins shown in that photograph had changed compared with the way they were at the time of the fall: p 13. They were then closer to the walkway of the supermarket, out to a black line shown on the photograph: p 14. This left a gap for walking between the bins and the trolleys lined up outside the supermarket; the plaintiff was vague about the width of the gap, but eventually gave an estimate of about two metres: p 15.
[1]See Exhibit 2, in which the defendant’s lease is hatched, the post office is marked, and the large area with the dotted line through it is the supermarket.
[2]She marked the position with a blue cross on Exhibit 1B: p 31.
The surface of the walkway was tiled, which she described as slippery, and she had on flat shoes with a non‑slip rubber sole: p 17. The area was fairly well lit: p 27. She said that her right foot slipped and went forward and she went down on her left knee and then back hard on her buttocks: p 17. She said that after the fall she found underneath her shoe a green grape with seeds in it: p 16. She was assisted to her feet by a woman and a young man who had been pushing trolleys, and then a man[3] had come out of the fruit shop with a chair for her to sit on: p 16.
[3]She said that someone called him Bob (p 18), but he was not known to her.
She said that he arranged for her to get a drink of water, and claimed that he said to her “what happens is people come along and their kids play with the grapes and they don’t realise that they drop them on the floor and it’s been a problem for a while.”: p 17. She said she could see grapes under the box which had been pushed in there to get them out of the way, and that this one had been missed: p 18. She said that the bin closest to where she fell contained green grapes, about one metre from where she fell, or a bit less: p 18, p 55. After her fall the man gave instructions to move the grapes to a different bin: p 18.
The plaintiff had been to the shopping centre frequently before this occasion, including to the supermarket, and at times had been to the fruit shop where she had made purchases: p 27. She did not report the incident to anyone at the shopping centre at the time, but did report it subsequently, on 21 March: p 28.[4] The plaintiff agreed that the two supermarkets at the centre sold fruit as well as the fruit shop (pp 29-30) and that people leaving the adjacent supermarket with shopping bags would walk in the area where she was walking. At the time, the shopping centre was moderately quiet: p 32.
[4]At that stage she said the fall was on 17 February: p 28.
She said she sat there for about 20 or 30 minutes, because she was badly shaken, but after that time she drove home: p 19. She said she did not go straight to the doctor, she waited for a couple of days to see whether her back would settle down, but when it did not she went to see the doctor: p 19. The doctor’s report gave the date of this first visit as 23 March 2000: Exhibit 3. Under cross‑examination she said she was not sure how long it was before she saw him, but it was more like a few days. I shall return to the question of timing.
- the defendant’s account
The defendant’s version was somewhat different, although it was apparent that the defendant’s witness, Mr Dunne, was speaking about the same incident. He ran the fruit shop business, and said that it was the usual practice to put the grapes at the back of the shop, rather than in bins out the front,[5] where they tended to put things which were of less value in case they were lifted: p 73. He said he recalled the plaintiff’s fall; on that day the centre was not particularly busy, but he had noticed her walking with a slight lean forward and a shuffle,[6] he looked away and when he looked back she was lying on the ground, more or less face down: p 74. He went to her aid and was able to stand her up, someone brought a chair from the food court and she sat down.
[5]The plaintiff on the other hand said that the grapes were always in the bin next to where she fell: p 52.
[6]The plaintiff denied that she walked like this: p 29.
He said that she said she had a bad back and he sympathised with her, someone got a glass of water, and after sitting there for a while, she said she was right, got up and walked straight into the supermarket: p 74. His recollection is that she was wearing a pair of scuffs or loose‑fit sandals. He marked where he said the fall occurred, with a red cross on the large photograph Exhibit 1B: p 75. This was some distance away from where the plaintiff said the fall occurred, marked with a blue cross on the same photograph. It is not close to the bin at the side of the shop, but is rather in the general circulating area of the shopping centre, in front of the shop and towards the entrance to the supermarket.
He said that the practice in the shop was that the grapes or anything else which was spilt would be cleaned up immediately: p 76. He said he had very good young and energetic staff, and they kept everything clean and tidy. He said grapes fell to the floor very rarely, he had five people working at the shop that day (including himself), and he had never had anyone fall in his shop: p 85. In the area where the fall occurred, the common area of the centre, there were centre cleaners who were coming through there as well[7] and that the centre was always kept very clean. He said they had no particular problem with children picking grapes at that time. He did not see any residue of a grape on the sole of the plaintiff’s shoe when he assisted her. Accordingly, his account has the fall occurring somewhere quite different from where the plaintiff said it occurred, and has her falling forwards, not backwards. His account of the aftermath was also different.
[7]One of these is actually shown in one of the photographs.
There was also a difference between the parties as to the layout of the area around the entrance to the supermarket. The photograph Exhibit 1 shows a line of trolleys, and the plaintiff said that in order to go into the supermarket, one walked to the right of that line of trolleys: p 12. Mr Dunne, however, said that to go into the supermarket one had to walk to the left, and that the area where the trolleys were led to closed fire doors, which gave access to a fire escape only; under ordinary circumstances that passage was not used by members of the public: p 77. He said that the slightly odd‑shaped green objects apparently behind the banana stand in Exhibit 1B were display bins from the supermarket which held empty boxes made available to the public: p 88. Behind them there was a door which led into the passageway, but it was not ordinarily available to the public.
Mr Dunne’s description seems to me to be more in accordance with the appearance of the entrance to the shopping centre shown in photographs, particularly Exhibit 1B. I notice there that there are two shoppers shown to the left of the photograph, one walking away from the supermarket and one walking towards it, but the line of travel of both of them passes to the left of the line of trolleys. That also appears to me to be more consistent with the appearance of the plan Exhibit 2. Although there are aspects of that plan which do not appear to be consistent with the appearance of the shop shown in the photographs, in particular the area shown in Exhibit 8D, the plan does seem to be consistent with the basic shape of the defendant’s shop as shown in Exhibit 1, and appears to show a short length of corridor leading from behind the defendant’s shop to an area on Bay Avenue, which is distinct from the area which appears in the photographs to be occupied by the supermarket. Overall, I prefer Mr Dunne’s evidence as to the layout of the shopping centre, and the area between the defendant’s shop and the supermarket.
- resolution
There were no other witnesses to the incident who gave evidence, and indeed no other witnesses in relation to liability. Ultimately, it is necessary to resolve the inconsistency between the two accounts on the basis of which witness was more credible.
On the whole, I prefer the evidence of Mr Dunne to the evidence of the plaintiff. Although the plaintiff was quite firm and determined, indeed dogmatic, about the various essential aspects of her evidence, which suggests that she does genuinely believe that they are correct, her evidence did not carry conviction in the way that the evidence of Mr Dunne did. Although I have always been wary about placing too much reliance on the effect of the demeanour of a witness, insofar as it provides a guide in this case I think it assists the defendant. Mr Dunne gave his evidence in a very straightforward and natural and convincing way. In all the circumstances, I prefer the evidence of the defendant.
There are other difficulties with the plaintiff’s credibility. There was an inconsistency between her evidence as to the date of the fall, and the figure given in Exhibit 3, the report from the GP, who said the plaintiff first attended his practice after the fall on 23 March 2000, giving a date for the fall of 12 March 2000. The latter date may well be wrong, and may have been based on a vague estimate of how long ago the fall occurred. The former date is likely to be correct; it may be significant that this was two days after the plaintiff had reported the fall at the shopping centre, when apparently she said it was on 17 February: p 28.
It is somewhat surprising that the plaintiff would wait from 17 February to 23 March to see a doctor for the first time if her symptoms got as much worse as she claimed as quickly as she claimed. The dates in Exhibit 3 suggest that possibly she gave a shorter estimate when she saw the GP. When she was giving evidence to me, she initially suggested she went to see him a couple of days later: p 19. When she saw Dr Sampson in 2001 she said it was that night or the following day: Exhibit 5. When she saw Dr Morgan, she apparently said she saw her GP the following day: Exhibit 7. This inconsistency is disconcerting. I can understand the plaintiff having difficulty after a time in remembering just how long it was between when she fell and when she first saw the GP, but she seems to have been willing at times, including when giving evidence before me, to give a time period for this gap which must have been quite wrong.
There is also the consideration that both Dr Morgan and Dr New regarded her presentation as inconsistent, and even Dr Sampson referred to aspects of the examination being inconsistent. Dr Morgan reported that she was inconsistent or overstating on a number of tests: Exhibit 6, p 36. There are also some other inconsistencies between the histories taken by the various doctors and the evidence of the plaintiff, though I would not place too much reliance on this in itself, because in my experience histories in doctors’ reports are notoriously unreliable. For example, Dr Sampson in Exhibit 5 referred to a fall on 7 February 2000, but I think that it is more likely that the plaintiff told him that the fall was on 17 February 2000. I think of greater significance is the inconsistency between the plaintiff’s evidence[8] (and what she told Dr Sampson), that she drove herself home after the fall, and the statement to Dr Morgan that she was driven to her home by a friend: Exhibit 7. There is also the inconsistency between what she told Dr Sampson of the extent of her voluntary work (Exhibit 5) and what she told me: p 11, p 49. There was also some inconsistency with the evidence of her former husband.[9] Overall there seemed to me to be more inconsistencies in this case than are usually met with in a matter of this nature, and a number of reasons for being wary about the evidence of the plaintiff.
[8]Plaintiff p 19 line 24.
[9]See para [23], notes 10 and 12.
Accordingly I have concluded that I cannot place any particular reliance on the plaintiff’s evidence about anything, unless there is some other evidence to support it or it appears objectively probable. In these circumstances, there is no sufficient evidence that she did fall on a grape. Mr Dunne gave no evidence of seeing a grape or remains of a grape, indeed his account does not provide any particular mechanism for the fall, although he did suggest that at some stage some of the tiles on the floor in the shopping centre were not as even as they could have been: p 90. On the other side of the walkway there was a place where there were tables and chairs for people to eat things, and obviously all sorts of things could have been on the floor other than grapes. Indeed, even if it was a grape, it might not have been one of the defendant’s grapes; the plaintiff’s case really depends upon her standing in close proximity to a bin displaying grapes, where there was therefore a particular risk of encountering a loose grape.
The plaintiff’s case does not depend upon her falling in an area specifically occupied by the defendant, but simply on the basis that the defendant owed a duty of care to keep the floor area near to his display bins of grapes free from dropped grapes on which someone might fall and suffer an injury. For present purposes, I would be prepared to accept that proposition as a general proposition, but am not prepared to find that the facts which would make it applicable did occur in the present case. Specifically, I do not find the facts alleged in paragraphs 3(c) and (d) proved, nor do I find as alleged in paragraphs 3A or 5 of the Amended Statement of Claim.
Apart from this, it is by no means clear that there was any negligence on the part of the defendant in relation to the system in operation here. It is obviously possible for grapes to find their way onto the floor other than by being put there by anybody on behalf of the defendant, and the defendant’s duty in the circumstances was to take reasonable care to prevent injury being suffered by persons in the vicinity as a result of the action of others. This is not like a supermarket, however, where ordinarily there are not staff moving around serving customers; at a fruit shop customers often are served, so one would expect that staff would be moving around in the area of the shop in the course of their ordinary work, and in that way would be able to check on the state of the floor of the shop. Mr Dunne said, for example, that he was always going to the banana bin to straighten up the bananas: p 87. In addition, so far as the common areas were concerned, there were cleaners who would operate around the centre, and that provided a further opportunity for any grapes which had been dropped in the common areas to be identified and cleaned up. That that was occurring was something which it was reasonable for the defendant to take into account.
With regard to the allegation of negligence, the factual basis for particular (a) is not made out. There is no evidence from which I could conclude that the floor area would have been made more safe by putting matting on it rather than by leaving it with the tiled surface provided by the shopping centre exposed. I am not persuaded that the plaintiff has shown that there was a failure to provide a safe system for keeping floor areas near the defendant’s display free from spilled fruit. I am not persuaded that there was any need to provide a warning. I find that the defendant took steps to prevent juveniles and others from picking fruit, by keeping the fruit in bins towards the back of the shop, and by having the grapes prepacked in plastic bags, at least most of the time. There was no negligence in failing to take further steps. I am not persuaded that the plaintiff’s injury could have been avoided by any additional reasonable step on the part of the defendant.
In all the circumstances, I am not persuaded that the plaintiff has shown that there was any negligence on the part of the defendant which caused or contributed to her fall. In the circumstances therefore the plaintiff’s action fails. There was a plea of contributory negligence, but on the view that I take of the facts it is unnecessary for that issue to be determined. There is no point in my attempting a precautionary finding in relation to contributory negligence; I certainly could not form any useful apportionment. Nevertheless, it is appropriate that I assess damages on a precautionary basis.
Quantum
The plaintiff was in pain from the time she fell: p 16. The plaintiff at the time had been taking Panamax for the pain in her back: p 19. She took that apparently only when needed, prior to this fall: p 20. She said that the pain had not abated since this fall, and it was still not better: p 20. She takes more substantial medication, and also gets injections into her buttocks. The main problem is pain from the lower back down into the buttocks and down the left leg: p 21. She has been told she is not a suitable candidate for surgery: p 21.
After the accident she was to some extent cared for by her former husband, with whom she is still on good terms: p 21.[10] She said that he would get breakfast for her and would get her up and dressed for the day, and helped her shower, before he went to work for the day, though if he could he would either visit home or ring during the day to check that she was all right. He did the washing, ironing, cooking, cleaning, and everything: p 22. His estimate of the time spent was about four hours a day: p 60.[11] She said he helped her in this way for over 12 months: p 24.[12] After he finished the plaintiff’s son and his girlfriend were looking after her for a while but that was unsatisfactory, and she then had a live‑in carer arranged through Centrelink, who did everything that her former husband used to do: p 24.
[10]They had recently begun to share accommodation for reasons of economy: p 57. She gave the period that her ex‑husband had been sharing a house with her prior to this fall as probably a couple of weeks (p 21), whereas he said that it was a matter of months: p 57.
[11]Under cross‑examination he conceded it may have been less: p 67.
[12]He gave an estimate of over a couple of years: p 61.
The plaintiff’s current medication is Dolobid Slow Release 200 and Panamax for her back pain, and for her bipolar disorder Epilim and Rivotril: p 25. Some time ago the plaintiff nursed her own sister who was terminally ill, and subsequently did similar work on a paid basis through Domicare, and then worked in a nursing home on a permanent part‑time basis as a carer, to 1992: p 26. She has not worked since. She is currently receiving a disability pension; she would love to be able to go back to work, but does not feel there is any prospect of doing so at the moment.
Her work finished after a fall, when she slipped in the kitchen of the nursing home, fell on her left knee, jarred her back and then fell back: p 10. She was off work for a time, went back to work for eight weeks, but then had to give up work again and has not worked since. She did a little voluntary work for about eight weeks at the Royal Brisbane Hospital, but could not cope with that. She said that by 2000 she was, however, improving to the point where she was considering going out and trying to get some other work again; she was living on her own, she was driving, shopping, washing, cooking, cleaning and doing everything on her own: p 11.
The plaintiff has had other falls since the fall in 2000. She had eight additional falls in a two-month period during 2004, at home, when her knee went from underneath her and she said she landed on her knee: p 46. She did not see a doctor in relation to any of these falls. They made her back ache more, but she responded by increasing her medication. Her former husband said that there were also falls in the house when she was trying to get from the bed to the toilet, but he could not recall when that occurred: p 64. Presumably it occurred while he was there, which puts it at early 2003 at the latest. She had not had any falls in 2005, or 2006, she said because she now has a carer and a walking frame.
She also admitted that she had had a fall in about May 2001, which had also set her back a bit: p 47. She was in her kitchen when she went down on her left knee again and had to pull herself up on the cupboards: p 48. She said it took her about two months to recover from the effect of that fall: p 54. One of the curious features of the plaintiff’s evidence is that all of the falls that she spoke about, including the fall in 2000, involved her going down onto her left knee. It was also the mechanism of the fall in 1992 (p 10), in 2001 (p 48) and the eight falls in 2004 (p 46), as well as the fall in the shopping centre: p 17. It strikes me as a little curious that the plaintiff would have all of these falls in essentially the same way.
Medical evidence
The plaintiff’s psychiatric state was referred to in a letter from a psychiatrist, Dr New, to the plaintiff’s general practitioner dated 16 October 2000: Exhibit 4. This was put in evidence by consent; Dr New did not give oral evidence. Dr New had seen her at the pain clinic at the Royal Brisbane Hospital on 13 October 2000, that is, after the relevant fall, describing extraordinary debilitating pain from her back down both legs. His report said “unfortunately there were inconsistencies in this presentation …” She had said she was unable to flex her knees to be able to sit but she was able to flex her knees at other times during the interview. He described her as a difficult historian, he passed on rather than made a diagnosis of bipolar affective disorder, and noted that she was taking two anti‑depressants and two mood stabilisers but appeared to be making little use of other avenues to improve her situation. His letter noted some concerns about her future.
Her general practitioner provided a report dated 20 November 2000 (Exhibit 3) but did not give oral evidence. He said he had known the plaintiff since 1994, and referred to her attending the practice on 23 March 2000 complaining of having fallen on 12 March 2000. That is inconsistent with the plaintiff’s account to me of the date of the fall, and her evidence that she saw the doctor a few days later. He prescribed Panadeine Forte and an anti‑inflammatory and referred her for a CT scan of the lower spine. This revealed a broad‑based herniation with degenerative disease at the L4‑5 level, and more degenerative changes at the L5‑S1 level. No fractures were seen, although the degeneration had progressed in the previous four years. He referred her to the Redcliffe Hospital for a lamino‑disectomy.
In April 2000 she reported a presentation to the Redcliffe emergency centre with severe back pain, and she was placed on slow‑release morphine until referred to Dr Sugars, who did not recommend surgery and offered a referral to the Royal Brisbane Pain Clinic. The doctor had tried a range of different analgesics, some of which she could not tolerate. She was not admitted to the pain clinic, and is recorded as being quite upset with Dr New. In conclusion, Dr Stevenson noted that there was spinal injury dating back to 1992 which had been definitely aggravated by the fall in 2000. She had previously significantly improved on her original injury, but had deteriorated to the point where she required morphine which she did not have to have before. She was also taking medication for secondary depression. He described the bipolar disorder as being well‑controlled on Lithium for some time. He expressed some surprise that she was thought not suitable for surgery.
The plaintiff was seen by an orthopaedic surgeon, Dr Sampson on 24 July 2001 for the purposes of a report to the plaintiff’s solicitors: Exhibit 5. The history records a slipping “such that her legs became widely abducted”, and she said that that night or the next day she saw her general practitioner. Since then she had been treated with physiotherapy, sclerotherapy, and analgesics, including morphine tablets for a time, though she was then taking Tramal. She was complaining of lumbar backache and occasional leg pain, both worse with bending. She claimed that before this accident she had been doing a fair amount of voluntary work, about six hours each week. She had been able to care for herself and drive long distances, but since this fall she needs a cleaner for one and a half hours each week, a nurse for two hours a week and relied on a lot of support from her family, though she could cook and wash at home. On examination range was restricted symmetrically, straight leg raising was inconsistent, and there was no neurological abnormality in the lower limbs. There was non‑specific tenderness in the lumbar spine.
Dr Sampson reviewed a series of x‑ray and MRI and CT examinations of the spine, and concluded that they showed a progression of a degenerative condition in the spine, including the development of a spondylolisthesis which was secondary to the degeneration rather than associated with the fall. Dr Sampson at that stage believed that there had been some exacerbation of the underlying degenerative condition of the lumbar spine, which he assessed at 5% effective loss of use of the spine, though the majority of her symptoms related to the underlying degenerative condition, which was expected to degenerate further. He did not recommend surgery.
The plaintiff was seen by Dr Sampson again on 7 November 2006 for the purposes of a further report to the plaintiff’s solicitors: Exhibit 6. Since 2001 the plaintiff’s condition appeared to have deteriorated significantly. There was significant analgesic intake, and she could walk slowly for only about 10 minutes. She appeared to be in poor physical condition, with limited bending and flexing and other spinal movements, but neurological examination was inconsistent, as was straight leg raising. Dr Sampson considered that the deterioration was due to the natural history of the underlying degenerative condition. He did not alter his assessment of 5% loss of use of the spine, which he said was the equivalent of 3.5% whole body impairment, using the AMA guides. Dr Sampson had also seen her three or four times in connection with her earlier injury in 1992: p 94. Taking into account the previous injury and naturally occurring degeneration, that is all the matters contributing to impairment, he put her whole body impairment in accordance with the AMA guides at 7%: p 95.
In oral evidence, Dr Sampson conceded that he was not told of a fall in May 2001 when he saw her soon afterwards, and that that was a relevant consideration in assessing her condition at that time: p 97. But if the effect of the fall in May 2001 had apparently disappeared after a couple of months, it did not affect the opinion given in July 2001: p 103. He had also not been told of falls between the two examinations in 2001 and 2006: p 98. He did not think that degeneration alone would have required the extent of care that she had had since the relevant fall, if that fall had not occurred: p 99. On the basis of her account, the fall in 2000 was a significant fall: p 101. Dr Sampson was of the opinion that the effect of the fall in 2000 was to cause an exacerbation of the symptoms, that is to say her condition was made worse, but the worsening was only temporary, in the sense that ultimately a point was reached where she would have been as bad as she was anyway even if that fall had not occurred: p 102. Indeed, he thought that she would by now have been in the same condition anyway, even if the fall had not occurred, and that the effect of the fall had probably lasted only three or four years: p 102. Dr Sampson said that he did not think that the falls that occurred between 2001 and 2006 affected his opinion in any way: p 103.
The plaintiff was seen by Dr Morgan, an orthopaedic surgeon, on 22 June 2005 for the purposes of a report to the defendant’s solicitors: Exhibit 7. The account of the fall which she gave was essentially the same as that given to me, except that she told Dr Morgan that she was driven from the scene to her home by a friend, and consulted her GP the following day. On examination she had very limited movement of the spine, and inconsistent straight leg raising, with some muscle wasting in the left leg. A number of tests demonstrated inconsistency or overreaction. Dr Morgan was of the opinion that the plaintiff had degeneration in the lumbar spine which was of long standing and which had been only temporarily exacerbated by the fall in 2000. He put the length of the exacerbation at a month or less, but in oral evidence conceded that it could have been longer than this, giving figures of up to six months: p 38. Her current problems were the natural progression of the degenerative disease. He assessed her current whole person impairment at 5%, no part of which was attributable to the fall in 2000. He thought in the longer term the plaintiff’s degenerative condition would stabilise: p 38. Prior to the relevant fall, her degeneration of the spine was already relatively severe: p 43. Problems at the L4‑5 level of the spine are consistent with pain down the left leg (p 43) and pain in the buttocks: p 44.
There is therefore a good deal in common in the medical witnesses: both thought that the plaintiff had significant degeneration in the spine prior to this fall, and that the effect of this fall was to exacerbate that condition, but that the effects of the exacerbation have probably now concluded, so that the problems the plaintiff has now are almost certainly those she would have had by now anyway, even if this fall had not occurred. The main difference between the doctors was that Dr Sampson put the period of exacerbation as being probably of the order of three or four years, whereas Dr Morgan put the period of exacerbation as much shorter than that, probably three or four months, or even shorter. Dr Sampson has the advantage of having seen the plaintiff on a number of occasions, and significantly on a number of occasions prior to the relevant injury, and was therefore I think in a better position to express an opinion as to the likely outcome of the plaintiff’s condition had this particular fall not occurred. In respect of this matter of difference therefore I prefer the evidence of Dr Sampson. Accordingly, I find the effect of this fall was that for a period of about four years the plaintiff suffered an exacerbation, initially a significant exacerbation, of the degenerative condition of her spine, but ultimately the effects of the exacerbation tapered off.
General damages
The plaintiff was born on 8 December 1951, and so is now 55. At the time of the accident she was 49. I accept that prior to the fall in 2000 her back symptoms were not causing any great amount of trouble given what she was in fact doing at that time, though it is I think likely that had she been attempting anything more vigorous or strenuous the symptoms would have been worse. At that time she was not working, and she was leading a fairly quiet lifestyle, with no vigorous recreational activities. She gave her recreations to Dr Sampson as reading and doing crochet work. I do not accept that she was doing as much voluntary work as she claimed to Dr Sampson. It seems to me that essentially at that time she was coping by making few demands on her back.
After the accident I accept that she suffered a good deal of pain in the back, and that has continued, but the symptoms for which she is to be compensated tapered off over a period of four years. On that basis, I assess general damages at $18,000, all of which is attributable to the past. I would allow interest on the full amount at 4% per annum, but only for two years; there was no explanation for the length of time it has taken for this matter to come to trial, and there is no obvious reason why it should not have come to trial some time ago.
Gratuitous care
I do not think the plaintiff gave an estimate of the amount of time that her ex‑husband spent caring for her each day during the applicable period. He gave an estimate of four hours per day, but in cross‑examination conceded that that estimate may have been too high, and that when cooking, for example, it would not have taken him much more time to cook for her as well than it took just to cook for himself. However, I do not think that that is a matter of any great significance. In circumstances where the defendant’s action has created the need for the plaintiff to have cooking done for her, which she could otherwise have done herself, the plaintiff is entitled to recover the “cost” of that assistance, even when provided gratuitously: Van Gervan v Fenton (1992) 175 CLR 327 at 338.
In all the circumstances, and bearing in mind the evidence that the ex‑husband was doing quite a lot for the plaintiff, in my opinion it would be reasonable to allow this claim in respect of the care provided by the ex‑husband. This was the only claim advanced on behalf of the plaintiff, and only two hours per day were claimed for him, which in all the circumstances I think was quite reasonable. It was submitted on behalf of the defendant that there were numerous other things that had happened to the plaintiff which were factors contributing to the care required, and that little if any of the care was actually made necessary specifically because of this fall. I do not accept that; the evidence of both the plaintiff and her former husband, which was on this essentially consistent, was that the plaintiff was significantly worse after this fall than she had been in the period leading up to it, and that that continued during the time when he was assisting her. That period was significantly shorter than the acceleration period suggested by Dr Sampson, which I accept, and in those circumstances in my opinion the plaintiff has adequately proved an entitlement to compensation for two hours a day for the two years that he was assisting her (I prefer his evidence in relation to the period). The rate for past gratuitous care was agreed at $16 per hour[13] and at this rate two hours a day for two years comes to $23,360. Accordingly, I would allow that amount for past gratuitous care. I would also allow interest on that amount at 4% per annum, but again only for two years.
[13]There was also an agreed rate of $19 per hour for future gratuitous care, but ultimately no claim was advanced in relation to future care.
Economic loss
With regard to past economic loss, there was an argument as to whether the plaintiff was entitled to recover any amount. In circumstances where the plaintiff has failed on liability anyway, it is unnecessary for me to resolve that argument, but I should make a precautionary assessment of the amount I would have allowed had the plaintiff recovered and had I determined the plaintiff was entitled to pursue a claim for economic loss. In the circumstances, the claim can only be in respect of past loss of earning capacity, since the period of exacerbation has now expired.
The plaintiff was not working at the time of this fall, and had not worked for about eight years beforehand. The plaintiff did say that she had been considering attempting to rejoin the workforce at the time of this accident, but nothing specific had been done to obtain suitable employment. An attempt to do a small amount of light voluntary work proved unsuccessful. Although the plaintiff had been feeling better than she had been in the past in the period leading up to the fall, it is by no means clear that but for this fall she would have returned to the workforce on any substantial basis. I do not accept that she would have been returning to the workforce doing anything strenuous, because she had problems with her back anyway, and it is likely that any strenuous work would have stirred up those problems even if this fall had not occurred. The plaintiff had little in the way of qualifications, and I think it likely that she may well have experienced difficulty in obtaining suitable employment, particularly employment which did not prove to be too physically demanding for her, even if she had been seriously attempting to obtain such employment. In the circumstances, therefore, all that the plaintiff has lost is some chance of some employment in the period between when this fall occurred and when she would have been prevented from working anyway as a consequence of the continuing deterioration in her back.
The plaintiff sought an amount of $5,000 on a global basis. That is the equivalent of only 20 weeks full‑time work at $250 net per week, a modest allowance, which is the equivalent of only a 10% chance of being otherwise in full‑time employment over the period of four years, or a 20% chance of being in full‑time employment for half of that time, or a 40% chance of being in part‑time employment (and earning half as much) for only half of that period. Although I think there was no real prospect of her being otherwise in full‑time employment over the whole of that period, it is certainly possible that she would have been in part‑time employment for part of the period, though an allowance based on a 40% probability of part‑time employment for half the period still seems too generous. $4,000 would be roughly the equivalent of a probability of one in three of her having part‑time employment for half the period, which on the whole I think is more realistic. Accordingly, I would allow past economic loss in a global figure of $4,000, based upon loss of a chance.
Special damages were agreed at a sum of $500: p 6. Accordingly, were I assessing quantum, it would be assessed as follows:
(a)
general damages
$18,000
(b)
interest on general damages
$1,440
(c)
past gratuitous care
$23,360
(d)
interest on past gratuitous care
$1,869
(e)
past economic loss
$4,000
(f)
interest on past economic loss
$400
(g)
special damages
$500
(h)
interest at 5% for two years
$50
TOTAL
$49,619
In the circumstances, however, there will be judgment for the defendant with costs.
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