Newport v Li

[2022] NSWDC 8

District Court

New South Wales

Medium Neutral Citation:

Newport v Li & Anor [2022] NSWDC 8

Hearing dates:

9, 10, 11, 12, 16 and 19 August 2021

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [148] for orders.

Catchwords:

TORTS – negligence – inadvertent injurious contact between pedestrians in public area of produce market – whether first defendant vicariously liable for negligent actions of second defendant – second defendant failed to keep a proper lookout whilst carrying a box of shallots whilst his vision ahead was obscured by the elevated height of foliage he was carrying – plaintiff struck by the box and fell suffering sub-trochanteric fracture of right hip and other injuries – whether that contact was due to materialisation of an obvious or an inherent risk – whether plaintiff contributorily negligent; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5F, s 5G, s 5H, s 5I, s 15, s 16

Evidence Act 1995 (NSW), s 60

Cases Cited:

ANZ Banking Corporation Ltd v Haq [2016] NSWCA 93

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Hallmark Constructions Pty Ltd v Brett Harford, Copeland Building Services Pty Ltd v Hallmark Constructions Pty Ltd; Hallmark Constructions Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Miller v Galderisi [2009] NSWCA 353

Monie v Commonwealth of Australia [2007] NSWCA 230

Nicholson v Nicholson (1994) 35 NSWLR 308

Paul v Cooke [2013] NSWCA 311

Prince Alfred College Incorporated v ADC [2016] HCA 37

Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Category:

Principal judgment

Parties:

Sunantha Newport (Plaintiff)
Zhuo Hua Li (First defendant)
Guoxi Li (Second defendant)

Representation:

Counsel:
Mr K Andrews (Plaintiff)
Mr J Lee (First defendant)
Mr I Griscti (Second defendant – pro bono representation)

Solicitors:
Slater & Gordon (Plaintiff)
Clyde & Co (First defendant)
LLL Lawyers (Second defendant)

File Number(s):

2019/201663

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Facts not in dispute	[2] – [8]
Disputed facts	[9] – [13]
Evidence overview	[14] – [16]
Plaintiff’s claim	[17] – [21]
Defence of first defendant	[22] – [23]
Defence of second defendant	[24]
Issues for determination	[25]
Issue 1 – Credibility and reliability of testimony	[26] – [66]
Issue 2 – Factual findings on accident circumstances	[67] – [71]
Issue 3 – Whether second defendant employed by first defendant	[72] – [83]
Issue 4 – Relevant risk of harm	[84]
Issue 5 – Respective duties of care	[85] – [87]
Issue 6 – Obvious or inherent risk	[88] – [99]
Issue 7 – Whether the defendants were negligent	[100] – [109]
Issue 8 – Causation	[110] – [112]
Issue 9 – Assessment of damages	[113] – [144]
Injuries and initial treatment	[114] – [115]
Medical and allied reviews	[116] – [117]
Disabilities	[118] – [121]
Mitigation	[122]
Non-economic loss	[123] – [126]
Past domestic assistance	[127] – [129]
Future domestic assistance	[130] – [137]
Future treatment expenses	[138] – [142]
Past out-of-pocket expenses	[143]
Summary of damages assessment	[144]
Disposition	[145]
Costs	[146] – [147]
Orders	[148]

Nature of case

1. The plaintiff, Mrs Sunantha Newport, claims damages for personal injuries she sustained on Saturday, 20 October 2018, whilst standing in a public market area near a produce stall looking to buy vegetables from a retail vendor at the Sydney Markets in Homebush, NSW. The proceedings are governed by the Civil Liability Act 2002 NSW, (“CL Act”). The hearing took place remotely by an audio-visual connection.

Facts not in dispute

2. On the day in question, the first defendant, Mr Zhuo Hua Li, and the second defendant, Mr Guoxi Li, at varying times were both within D Shed at the Sydney Markets and were each engaged in activities associated with selling vegetable produce from market gardens.

3. The first defendant, a market gardener, was the licensee and occupier of Stand 81 within D Shed at the markets. The second defendant’s father was the licensee and occupier of the adjacent Stand 82. On the day in question both stands were used by the defendants to display their vegetable produce for sale to customers at the market.

4. At about 10.30am on the morning in question, the plaintiff was a customer visiting the Sydney Markets. At that time she was near Stand 81 looking at the produce on display at that stand. In these proceedings a question has emerged as to whether it was the first or the second defendants’ vegetables that were on display at Stand 81 at that time, and who was offering those vegetables for sale to members of the public.

5. Immediately before her injury, the plaintiff was looking at the produce on display in the general area. At the same time, the second defendant was approaching the plaintiff from behind whilst he was carrying a styrene box packed and filled with upright bunches of spring onions or shallots in the approximate dimensions and configuration shown in the following cropped extract from a photograph forming part of Exhibit “A”:

[Extract from Exhibit “A”, p 23]

6. As the second defendant approached the area where the plaintiff was standing, he, or more likely, the styrene box he was carrying, made inadvertent but nevertheless forceful physical contact with her from behind. This occurred without warning to the plaintiff. The force of that contact was sufficient to unbalance the plaintiff, which caused her to fall forward. In those events she was flung to the ground, landing some considerable distance from where she was struck. When she fell, her head, her right side, her right hip and leg struck the ground.

7. As a result, the plaintiff suffered significant disabling physical injuries which ultimately required surgical treatment for an open reduction and internal fixation of a right sub-trochanteric fracture of her right hip, which was already affected by pre-existing osteoporosis.

8. A fleeting glimpse of the contact between the second defendant and the plaintiff was captured on CCTV footage, but those images were taken from some considerable distance from where the incident occurred.

Disputed facts

9. The plaintiff claims that at the time of the contact, the second defendant was employed by the first defendant at Stand 81. She claims that the second defendant injured her whilst he was in the course of that employment, such that the first defendant should be held to be vicariously liable for the second defendant’s actions. In that regard, the plaintiff claims that the second defendant, in the course of that alleged employment, was engaged in the activity of re-stocking the first defendant’s vegetable produce stand when the collision and injury occurred.

10. The respective defendants each deny that the second defendant was employed by the first defendant. The second defendant denies that the activity in which he was engaged involved re-stocking the first defendant’s produce stand. They each deny that any vicarious liability arises as alleged on behalf of the plaintiff.

11. The plaintiff claims that she was standing still at the time she was struck from behind. The second defendant claims the plaintiff was moving at that time, and that she had turned into his path just before the second defendant collided with her. The plaintiff rejected the second defendant’s account.

12. The plaintiff claims that in the lead-up to the collision the second defendant’s line of sight of the path ahead of him had been obstructed by the tops of the bunches of shallots that were packed thickly in an upright position such that the top foliage of those bunches was in front of his face and obscured his vision. The second defendant denies that his view of the pathway ahead was obscured in the manner alleged, or at all.

13. Both defendants gave their evidence with the assistance of a Cantonese interpreter. The first defendant relied on the interpreter’s assistance to a greater extent than the second defendant. In the circumstances where, as was explored in their evidence, some doubts arose as to the true extent of their abilities to communicate in the English language.

Evidence overview

14. The parties tendered a joint Court Book which contained statements, prints of photographs, medical reports, medical records, financial statements, and a flash drive containing a copy of the CCTV recording of the collision. Those materials will be referred to where it becomes necessary to do so: Exhibit “A”, pp 1 – 422.

15. In the plaintiff’s case, oral evidence was received from the plaintiff, her husband Mr Colin Newport, her son, Mr Kevin Newport, and his friend Ms Elisha Ek. The plaintiff also called Mr Luigi Peluzzo, an employee from the retail team of Sydney Markets who came to the plaintiff’s aid.

16. The parties also referred to various documents that set out the general terms and conditions for occupying produce stands at the Markets.

Plaintiff’s claim

17. The plaintiff claims that the incident in which she was injured was caused by a want of reasonable care, or negligence, on the part of each defendant. The particulars of negligence relied upon by the plaintiff as against each defendant are as follows:

1. Failure to keep a proper lookout;

2. Failure to ensure that the second defendant's vision was not obstructed while carrying the box of spring onions;

3. Failure to transport the box of spring onions outside of business hours;

4. Failure to provide an additional person to assist with the transportation of the spring onions;

5. Colliding with the plaintiff;

6. Res ipsa loquitur.

18. The recitation in the pleading of the maxim res ipsa loquitur is not a particularly informative allegation of negligence in this case.

19. Essentially, as against the first defendant, those particulars can be conveniently condensed into an allegation that he should have stocked his produce stand at an earlier point in time, and failing that, he should have ensured that the second defendant was appropriately guided or assisted whilst carrying produce when his view of the way ahead in the public area of the Markets was obstructed. Those matters assumed the first defendant either employed the second defendant, or had a relevant degree of control over his actions at the time.

20. Essentially, as against the second defendant, in his alleged capacity as the first defendant’s employee or agent, the particulars of negligence can be conveniently condensed into an allegation that he did not take reasonable care when he was carrying the box of produce and that the collision with the plaintiff occurred because he had been moving about whilst he was unable to see the plaintiff ahead of him.

21. The plaintiff sought to make a circumstantial case that the first defendant was vicariously liable for the negligent actions of the second defendant. The first defendant argued that the evidence did not support such a claim.

Defence of first defendant

22. The first defendant claims he was not present at the time when the plaintiff was injured. He claimed he had finished his day’s work some time beforehand; that his stand, which was licensed to be used only by him, was unoccupied by him at the time of the plaintiff’s injury; and that at the time of the incident he was some distance away from the accident scene, playing cards with some friends. He denied that he owed a duty of care to the plaintiff. He also denied he employed the second defendant. In the alternative, he alleged that the plaintiff was contributorily negligent according to the following particulars:

1. Failure to heed the presence of the second defendant;

2. Failure to avoid colliding with the second defendant;

3. Failed to keep a proper lookout;

4. Failed to take heed of her surroundings;

5. Failed to take reasonable care for her own safety.

23. In his amended defence filed on 4 March 2021, the first defendant also pleaded a defence pursuant to s 5F, s 5G, s 5H and s 5I of the CL Act, claiming that the plaintiff was injured in circumstances of obvious risk, or alternatively, involved inherent risk, apparently due to her presence in a crowded public market place.

Defence of second defendant

24. The second defendant also denied that he was employed by the first defendant at the relevant time. He claimed that he was holding a box of “vegetables including some scallions and/or shallots” and was walking towards the plaintiff at the time of the collision. He denied the plaintiff’s allegations of negligence as against him. In the alternative, he relies upon the following particulars of alleged contributory negligence, claiming that the plaintiff:

1. Failed to keep a proper lookout;

2. Failed to take heed of her surroundings;

3. Failed to take reasonable care for her own safety;

4. Collided with the second defendant.

Issues for determination

25. A review of the pleadings, the evidence and the submissions identifies the relevant issues requiring determination to be as follows:

1. Credibility and reliability of testimony of the respective witnesses. My findings on those matters appear between paragraphs [26] to [66] of these reasons;

2. Factual findings on the circumstances of the plaintiff’s injury. My findings on those matters appear between paragraphs [67] to [71] of these reasons;

3. Whether the first defendant employed the second defendant; whether the second defendant was acting in the course of that employment; and whether the first defendant should be held to be vicariously liable for the actions of the second defendant in the circumstances of the plaintiff’s injury. My findings on those matters appear between paragraphs [72] to [83] of these reasons;

4. Identification of the relevant risk of harm within the meaning of s 5B of the CL Act. My findings on those matters appear at paragraph [84] of these reasons;

5. Identification of the respective duties of care owed to the plaintiff in the circumstances. My findings on those matters appear between paragraphs [85] to [87] of these reasons;

6. Whether, in respect of the claim against the first defendant, the sheltering provisions of s 5F, s 5G, s 5H and s 5I of the CL Act, as pleaded, are engaged. My findings on those matters appear between paragraphs [88] to [99] of these reasons;

7. Whether, within the meaning of s 5B and s 5C of the CL Act, there was a relevant breach of a duty of care owed to the plaintiff. My findings on those matters appear between paragraphs [100] to [109] of these reasons;

8. Whether, within the meaning of s 5D of the CL Act, the plaintiff’s injuries were relevantly caused by the negligence of the defendants, either individually or in combination. My findings on those matters appear between paragraphs [110] to [112] of these reasons;

9. The assessment of the plaintiff’s entitlement to damages. My findings on those matters appear between paragraphs [113] to [144] of these reasons.

Issue 1 – Credibility and reliability of testimony

26. The disputed facts stand to be determined according to the extent to which relevant aspects of the evidence of the respective witnesses should be accepted. In this case, where the defendants gave their evidence with the aid of a Cantonese interpreter, the opportunity to assess the precise verbal content and the spontaneity of answers to material questions was absent. In such circumstances, demeanour cannot play any meaningful part in a reasoned assessment of the credibility and the reliability of the evidence given by the witnesses who were called to give evidence.

Plaintiff

27. The plaintiff was born in Bangkok, in Thailand, on 6 May 1952. She is now aged 69 years. She moved to Australia in 1989. She was 66 years old at the time of the accident.

28. Between 1986 and 2009, the plaintiff’s past medical history included gall bladder surgery, appendectomy, hysterectomy, hyperthyroidism, frozen shoulder syndrome, vertigo, and a tendency to fall: Exhibit “A”. p 314. The plaintiff’s prior health history had no bearing on the occurrence of her injuries.

29. The plaintiff gave her evidence in a straightforward manner. Her evidentiary statement was concise and factual: Exhibit “A”, pp 4 – 7. No doubts arose as to the credibility or the reliability of her testimony.

Mr Colin Newport – plaintiff’s husband

30. Mr Colin Newport, the plaintiff’s husband, gave oral evidence (T61 – T68) in addition to his written statement: Exhibit “A”, pp 9 – 12. He said he had seen the second defendant walking about two or three metres in front, carrying the box of shallots before colliding with the plaintiff. He took photographs of the scene and persons in the vicinity at the scene, including a photograph of the second defendant.

31. Mr Newport stated that when he saw the second defendant carrying the box of shallots, he saw that the leafy section of the shallots was obstructing the second defendant’s line of sight. He said that at the time, the second defendant held the base of the box at about navel height.

32. A question arose as to whether the photographs Mr Newport said he took on the day in question were taken on that day or a week later, as asserted by the second defendant. Mr Newport said he took the photographs at the scene on the same day as the accident, within a few minutes of the accident. The defence arguments on that question involved the interpretation of subtle differences in the colours shown in copies of photographic images, as reproduced as prints in the Court Book, which was an inherently unreliable undertaking.

33. Mr Newport said that on his subsequent visit to the Markets on 27 October 2018 he had attempted to engage the second defendant in conversation but in his responses, the second defendant conveyed the impression he did not understand what was being said to him when spoken to in English (T68.32), a matter to which I shall return at a later point in these reasons.

34. Mr Newport gave his evidence in a forthright and considered manner. I had no reason to doubt the truthfulness or the reliability of his evidence.

Mr Luigi Peluzzo

35. Mr Luigi Peluzzo was employed as an assistant retail team leader on duty at the Sydney Markets at the time of the plaintiff’s injury. He gave oral evidence: T70 – T80. He attended at the accident scene and he assisted in ensuring that the plaintiff received appropriate first aid pending the arrival of an ambulance.

36. Mr Peluzzo explained the numbering system for the retail display stands within Shed D comprised numbers on steel plates fixed to the ground. He described the area of the stalls as being about 2.5 square metres.

37. After the plaintiff’s injury, Mr Peluzzo spoke to the holder of Stand 81, the first defendant, but the conversation was said to have been limited due to claimed language difficulties on the part of the first defendant. He described speaking to the second defendant and said that the effect of the conversation was “he confirmed that he worked on the stand”, which I infer to be Stand 81: T72.8; T72.45; T78.20; T78.49 – T79.5; T80.1 – T80.15.

38. Mr Peluzzo’s note of that conversation was later transcribed and recorded in the incident report he completed, stating of the second defendant : “He was walking with a box and was restacking the stand”: T73.3.

39. Mr Peluzzo said that whenever he saw the first defendant at his stand in the markets (being Stand 81), to his observation he always had one or two other workers with him. He described how persons could walk within the stands, from one space into another, without impediment: T75.42.

40. I found no reason to doubt the reliability and truthfulness of Mr Peluzzo’s evidence.

Plaintiff’s son

41. Mr Kevin Newport, the plaintiff’s son, is an intellectual property research officer at a University. He gave oral evidence (T85 – T88) in addition to his written statement: Exhibit “A”, pp 14 – 15.

42. He said he re-attended at the accident scene a week later, on 27 October 2018. He said that at that time he had observed the second defendant to convey the impression that he had “no English” when the plaintiff’s husband had tried to engage him in conversation. As a result, he said he arranged for his partner at the time, to try and speak with the second defendant.

43. Mr Kevin Newport described how, since the plaintiff’s injury, he has been carrying out domestic duties in, around, and for the home, whereas beforehand, his mother attended to those tasks. He said that since the accident he has also taken to driving her on errands, to appointments, and for shopping. He said he would be continuing to do so for the next year, or two, or three: T87.7.

44. I found no reason to doubt the truthfulness or the reliability of the evidence of the plaintiff’s son.

Plaintiff’s son’s ex-partner – Ms Elisha Ek

45. Ms Elisha Ek is the former partner of the plaintiff’s son. She prepared a statement dated 21 May 2020 (Exhibit “A”, pp 17 – 18) and in addition, she gave oral evidence: T81 – T84.

46. She attended the scene a week later, on Saturday 27 October 2018. She spoke to the second defendant on that day under the pretext of ordering vegetables from him. Her evidence in that regard was as follows:

“Q. Thank you. When you went to speak to that man I want you as best you can to tell us what you said to him and what he said to you.

A. Sure.

Q. So can you start by what did you say to him firstly?

A. I said that "How much are these vegetables?" and I pointed out the vegetables, they were green vegetables and he gave me the price and then I asked how much would it be if I bought in bulk and we - he said it would be this much in its quantity but I asked him if he could reduce it if I bought in a larger quantity because I had a party and yeah, he basically just gave me prices back and forth but he was asking me like how much did I want but I had to - I said that I will confirm the numbers of my party attendance for me to tell him how much vegetables I needed so yeah, and we basically were negotiating a price for the vegetables.

Q. Please continue.

A. Yeah. So he said that - well, when I have the date confirmed and the people, like the number of people then to come back and buy the vegetables then but I kind of wanted to have a - some guidance on the indicative prices so yeah, he said, okay, and I had to push him for like, you know, a discounted price and yeah, he gave me - he got a piece of paper and a pen and he wrote it down for me and yeah, basically I asked his name and I wrote down his name and his phone number and I said to him that I will be in touch to confirm my party catering order for the vegetables. He spoke in English and it was a heavy Asian accent but I was able to understand him clearly.

Q. Did you speak to him about how payment had to be made, whether it was made in cash or credit card or anything else?

A. To the best of my knowledge, I cannot remember that specific detail, yeah, I'll be honest, but I am aware that those sort of markets usually take cash, usually pay cash.

Q. Could you go to paragraph 18 of your statement?

A. Yes.

Q. You say you were at the stall for about ten minutes?

A. Yeah.

Q. And you observed the man transacting produce?

A. Yes.

Q. Was that with you or with other people as well?

A. With other people, so he was serving people before I like had that conversation with him and he was speaking with customers and also his like colleagues at the stall as well.

Q. In relation to the colleagues at the stall, how many people were at the stall with him?

A. Roughly from memory probably about four or five. It was a bit hard to tell if they belonged to like other stalls but around about then. I remember that there was a lady because they were having conversations in their language when they were trying to give me like a price.”

[T81.39 – T82.40]

47. The effect of the evidence of Ms Ek was that she was able to verbally communicate with the second defendant, in English, without apparent difficulty, and she had also observed him entering into transactions with other customers, also without apparent difficulty: T82.33; T84.10. That evidence was not contradicted.

48. I found no reason to doubt the truthfulness or the reliability of Ms Ek’s evidence.

First defendant

49. The first defendant originated from a provincial village in China. He is 56 years old. He arrived in Australia in 1987, 34 years ago. His preferred languages were Guoyu and Cantonese. He was cross-examined extensively on topics that included his claimed lack of facility in the English language, his understanding of the second defendant’s visa status, communications with his former solicitors and his present solicitor, and his relationship with the second defendant.

50. Significant time was taken up in cross-examination of the first defendant on the fact that at some point, his former solicitor had also represented the second defendant. In my view, nothing of significance turns on that matter.

51. In Australia, the first defendant has successfully worked in continuous self-employment as a market gardener. In that time he has acquired two farms and a rental property. Plainly, he is commercially and financially astute. He is licensed to drive motor vehicles. He has two sons who have been educated here in Australia.

52. The first defendant claimed he did not speak or understand the English language and insisted on giving his evidence through the Cantonese interpreter. In light of the historical matters recorded in the preceding paragraph, including his commercial facility and success in this society, I find his evidence in which he claimed a lack of ability to communicate in the English language to be improbable, and unlikely to be correct.

53. As the first defendant’s evidence was given through an interpreter, in light of the observation made at paragraph [26] above, his evidence stands to be evaluated at face value as no other elements of opportunity to assess the verbatim content of his evidence are available in this case.

Second defendant

54. The second defendant has known the first defendant since their time together in the same village in China when he was 11 years of age. He is now 24 years old. He arrived in Australia 7 years ago. On arrival in Australia he used the first defendant’s address when opening a bank account: T174. He was cross-examined extensively on those matters.

55. Whilst here on a student visa the second defendant had several part-time jobs, including for a cleaning company. After his arrival he undertook a 20 week English language course and proceeded to complete Years 10, 11 and 12 of high school and obtained his HSC. These studies involved the subject of English: T176 – T177.

56. Since then the second defendant has completed other courses including Community Cookery Certificate III. He had also enrolled in, but did not successfully complete, a Diploma course in Hospitality and Marketing: T177. He has worked in kitchens in restaurants.

57. An issue also arose as to the second defendant’s proficiency in the English language. He has lived in Australia since the age of 17 years. He went to school in Sydney at Fairfield College. He has been studying leadership management with an organisation he identified as Strathfield College in Epping.

58. The second defendant was asked questions on matters within the Court Book by accessing it electronically from his devices: T171 – T172. He occasionally asked for questions to be translated through the Cantonese interpreter: T173.23, T190.42, T191.40, T193.22, T193.33, T200.6, T200.9, T200.31, T203.34, T204.28, T204.32, T205.42. In light of Ms Ek’s evidence, I found his claim of limited ability to understand questions asked of him in English to be unconvincing.

59. The second defendant described the circumstances of the plaintiff’s injury as follows:

“Q. Can you describe what you were doing just prior to the incident occurring?

A. WITNESS: Yes.

Q. If you could tell the Court, please?

A. WITNESS: Yes, on that day, I am carrying a box of - a box of shallots and I walk from the car park to the stand 82 because I, I have to cross the road and when I walking on the way - like, on the middle of the road and I saw the lady. She walking from my right-hand side to my left-hand side and I walked close to her and she - like, walking to right my hand side and she, she has turned left and we hit together, then she falling down, and after that - after that I put my the box of shallots on the floor and then I check her and ask her, “Are you all right?” Then she said, “Call the ambulance,” and I, I saw many people walk close my area and they ask me what happened and I said, “Accident happened,” and--

Q. Okay--

A. WITNESS: --they said the market have the first aid and they can call the security come.

Q. I just want to ask you about one issue that you’ve mentioned there. I think you described that you were carrying a box of shallots. That's right?

A. WITNESS: Yes. Yes.

Q. Can you describe how you were carrying that box?

A. WITNESS: I used my two hands to carrying, like, little bit in front of my - in front of my and my right-hand side.

Q. Where in relation to your body was the actual box?

A. WITNESS: You mean, the box is touch my body or what?

Q. Yes, in terms of what part of your body?

A. WITNESS: Right-hand side and in front of my body, yes, is, is touching my body.

Q. Are you able to say roughly what part of your body? Was it high, low, medium part of your body?

A. WITNESS: Medium, medium.

Q. The shallots, are you able to tell the Court how high they were in relation to your face?

A. WITNESS: Yes. The shallots height is up to my mouth, to my nose, between that.”

[T169.4 – T169.45]

60. The second defendant said that after the plaintiff’s injury he checked that the plaintiff had received first aid (T170.19), he then went and stood at Stand 82: T170.32. He claimed that on the day of the plaintiff’s injury he was working at Stand 82 and only at that Stand (T168.42 – T168.50), selling vegetables. On the day of the incident he claimed to have been working at the Markets for himself: T174.36. He denied he was working for the first defendant on the day in question or at all: T191.47 – T192.1; T203.35.

61. The second defendant claimed that immediately before the incident in which he struck the plaintiff, he was carrying the box of shallots with two hands and in a manner whereby the height of the shallots was to a point between his mouth and his nose, and that his vision was not obscured: T169.45; T191.20. His account of the collision was somewhat vague and uncertain: T200.16.

62. On the matter of the second defendant’s conversation with Ms Ek on 27 October 2018, the effect of his evidence was that he was able to communicate with her in English without apparent difficulty: T192.18 – T92.39. That evidence tended to confirm the correctness of the evidence of Ms Ek on that point.

63. The second defendant was cross-examined extensively (T175 – T205) on the following topics:

1. his work history;

2. his bank accounts and credit cards;

3. his financial transactions;

4. his living arrangements and renting history;

5. his social media communications with the first defendant’s son;

6. the accident circumstances.

64. Not all of those matters proved to be relevant, however, in view of the language issue, the plaintiff was given some latitude to explore them, as questions of employment and vicarious liability were important issues in the case.

65. In addition to his repeated denials of being the first defendant’s employee, significantly, he denied telling Mr Peluzzo he was a worker on Stand 81: T189.50. He said he could not recall telling Mr Peluzzo he had been restocking the stand, being Stand 81 at the time of the incident: T189.14. He denied that the box of shallots he was carrying was obscuring his vision at the time of the collision with the plaintiff: T191.20.

66. I found the second defendant to be an unsatisfactory witness. He hesitated significantly in giving answers to critical questions. Despite his protestations (T204.33), I am not persuaded that he needed the assistance of the Cantonese interpreter on the occasions he sought that assistance.

Issue 2 – Factual findings on accident circumstances

67. In the paragraphs that now follow I identify my findings on the matters referred to at sub-paragraph (2) of paragraph [25] above concerning the factual circumstances of the accident.

68. I accept the plaintiff’s evidence that immediately before the impact she had been walking slowly in the public area of the Markets and had almost stopped in order to look at a nearby display of produce. At that time, the box being carried by the second defendant struck her on the left side of her body causing her to fall to the ground with a heavy impact, some distance from where she had been standing.

69. I accept the plaintiff’s evidence that she had only caught a glimpse of the second defendant approaching her vicinity just before the impact. I accept her evidence and that of her husband to the effect that at the time the foliage at the top of the box being carried by the second defendant reached up to the level of his eyes. I find that this would have had the effect of at least partially obscuring his vision of the way in front of him, with the result that he did not see the plaintiff before she was struck by the box he was carrying.

70. The second defendant was carrying the box of shallots from the car park in order to restock his own display of vegetables for sale. The second defendant said he was restocking his display at Stand 82, and not the first defendant’s Stand 81. I accept his evidence in that regard.

71. I accept the evidence of the plaintiff’s husband that on the day in question the second defendant was seen to occupy space within Stand 81, and had also done so when Ms Ek saw him there when she attended the market on the following Saturday.

Issue 3 – Whether second defendant employed by first defendant

72. Those findings raise questions as to whether, at the time of the plaintiff’s injury, as claimed by the plaintiff, the second defendant was the first defendant’s employee, and whether the first defendant should be held to be vicariously liable for the acts or omissions of the second defendant in respect of the plaintiff’s injury.

Employment

73. The plaintiff’s solicitor issued a series of subpoenas which resulted in a further tender bundle of documents: Exhibit “B”, pp 1 – 96. Nothing within that material, or within Exhibit “A”, supports the contention advanced on behalf of the plaintiff, that the first defendant employed the second defendant to work on Stand 81 for him on 20 October 2018, or at any other relevant time.

74. In my view, the evidence does not provide a sufficient basis upon which to make a positive finding or an inference that the first defendant employed the second defendant on the day in question. The summarised account given by Mr Peluzzo suggesting a relationship of employment was not in a form that could be reasonably utilised by the plaintiff as an admission of such a relationship.

75. There are no records which suggest a relevant relationship of employer and employee. The fact that the second defendant was later seen to be occupying the first defendant’s stand does not support a finding that he used it lawfully with the consent of the first defendant, rather than being an unauthorised user or a trespasser, so as to give rise to an inference of a relationship of employment. The inference of employment as sought by the plaintiff is speculative and unsupported by reliable evidence: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1.

Vicarious liability

76. The plaintiff’s submission to the effect that the first defendant was vicariously liable for the actions of the second defendant is based on circumstantial evidence that comprises the following sequential factual elements:

1. The first and second defendants were well known to each other;

2. The first defendant was the only person entitled to lawfully occupy Stand 81, along with any employees he might have;

3. The second defendant was said to be re-stocking Stand 81 at the time he collided with the plaintiff, a matter that was denied by both defendants;

4. The first defendant is said to have been present at Stand 81 together with the second defendant moments after the plaintiff’s injury, as was contended on the basis of what is observable in the photograph appearing at page 22 of Exhibit “A”;

5. A week after the plaintiff’s injury, the second defendant was also seen at Stand 81 and was said to have negotiated vegetable produce prices for an apparent or pretended offer of sale to Ms Ek.

77. The plaintiff cannot point to any direct admissions made by either of the defendants that could reliably base an inference of employment to provide the basis for a finding of vicarious liability. Evidence of an essential element, namely the first defendant’s control over the actions of the second defendant, is absent: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1.

78. The plaintiff maintained the argument that at the relevant time, a relationship of employment existed between the first defendant, as the employer of the second defendant, so as to give rise to a vicarious liability of the first defendant for the actions of the second defendant.

79. In mounting that argument, the plaintiff maintained that the second defendant’s actions were sufficiently connected to the first defendant’s operations that he must be taken to have been acting with the authority of the first defendant at the time of the plaintiff’s injury: Prince Alfred College Incorporated v ADC [2016] HCA 37, at [40]. In my view, the evidence does not support such a conclusion in this instance.

80. The plaintiff developed that argument by citing the “general rule” referred to in Hallmark Constructions Pty Ltd v Brett Harford, Copeland Building Services Pty Ltd v Hallmark Constructions Pty Ltd; Hallmark Constructions Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41, at [87], where the true questions were identified as being whether control has been established so as properly conclude a relationship of employment, including for a particular purpose (here allegedly re-stocking Stand 81), and whether there was express authority for the activity that was undertaken by the putative employee. In my assessment, the evidence is speculative and falls short of establishing either of those propositions.

81. The plaintiff further argued that the combination of circumstances in which the second defendant was seen to be working at the first defendant’s Stand 81 a few moments after the collision, the second defendant’s alleged statement to Mr Peluzzo that he was a worker at Stand 81 and was engaged in re-stocking that stand; and that a week later, he was at Stand 81 quoting prices for future sales and, in combination, established the requisite relationship, presumably by an argued admission.

82. In my view, in the absence of direct admissions, as is the case here, that argument cannot gain acceptance. The second defendant’s unauthorised use of the first defendant’s unused Stand 81, either on 20 October 2018 or 27 October 2018, does not establish a liability in the first defendant, notwithstanding Mr Peluzzo’s account of his conversation with the second defendant in which he stated he was re-stocking Stand 81. The scenes depicted in the reprints of photographs of the Stands, do not assist the plaintiff’s arguments in this regard.

83. On the foregoing analysis, the plaintiff cannot succeed in her claim that the second defendant was working for the first defendant so as to base the finding that the first defendant is vicariously liable for the actions of the second defendant.

Issue 4 – Relevant risk of harm

84. There seems to be no dispute that the relevant risk of harm to persons in the position of the plaintiff in the circumstances of the collision was that if the second defendant did not keep a proper lookout whilst carrying a box of shallots this might result in inadvertent contact with such persons, potentially causing them to fall, and suffer bodily injury.

Issue 5 – Respective duties of care

85. The plaintiff argued that each of the defendants owed a duty of care in the circumstances.

Duty owed by first defendant

86. The first defendant denied that he owed any duty of care to the plaintiff. If the first defendant had been found to have been the employer of the second defendant, any duty owed by the first defendant would have required the exercise of reasonable care in assigning work tasks to the second defendant and providing adequate training, and supervision to him in connection with the performance of his assigned work tasks. However, in view of the finding that the second defendant was not employed by the first defendant, it is unnecessary to further explore this question.

Duty owed by second defendant

87. It is plain from the circumstances that immediately preceded the plaintiff’s injury, that the second defendant owed the plaintiff and other persons who were on foot in the public area of the Markets, a duty to take reasonable care when walking within that area whilst carrying produce so as to avoid colliding with such persons.

Issue 6 – Obvious or inherent risk

88. The respective defences of obvious and inherent risk raised pursuant to s 5F, s 5G, s 5H and s 5I of the CL Act require evaluation. The second defendant claims those provisions give rise to a defence of volenti non fit injuria or voluntary assumption of risk.

89. Section 5F of the CL Act provides:

5F Meaning of “obvious risk”

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

90. Section 5G of the CL Act provides:

5G Injured persons presumed to be aware of obvious risks

(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

91. Section 5H of the CL Act provides:

5H No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if—

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

92. Section 5I of the CL Act provides:

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

93. It is convenient to first examine the claimed defence of inherent risk raised pursuant to s 5I of the CL Act.

94. In my view the described activity of the plaintiff, namely walking and then standing in a static position in a public market place to view produce on display, does not engage the defence provided by s 5I of the CL Act. The forceful contact between the second defendant and the plaintiff did not occur as a result of the materialisation of an inherent risk of injury due to the collision of pedestrians. The risk of such contact in this instance could plainly have been avoided by the second defendant taking the precaution of exercising reasonable care and skill: s 5I(2) of the CL Act; Paul v Cooke [2013] NSWCA 311, at [60]-[66].

95. It cannot reasonably be said that the second defendant did not owe a duty of care to persons such as the plaintiff as he moved about the public area of the Markets whilst carrying a box of produce in circumstances where his vision of the path ahead was relevantly obscured by the height of the goods he was carrying at that time: s 5F(1) of the CL Act.

96. In the described circumstances, when viewed prospectively, if the second defendant was intending to take such a course, he ought to have warned persons such as the plaintiff to keep clear as he proceeded whilst his view of the path ahead was obscured by the goods he was carrying: s 5F(1) of the CL Act.

97. I am satisfied that at the time the plaintiff was viewing the vegetables on display, and beforehand, she was unaware there was a risk that the second defendant was likely to strike her with the box of produce he was carrying in the manner described: s 5G(2) of the CL Act.

98. The second defendant’s defence of volens must be rejected because the voluntary assumption of risk involves consenting to the particular thing being done which would involve the risk, and that is not the case here: Monie v Commonwealth of Australia [2007] NSWCA 230, at [75]-[76].

99. Accordingly, the claimed defences of obvious and inherent risk must therefore be rejected.

Issue 7 – Whether the defendants were negligent

100. To establish negligence on the part of a defendant, the plaintiff must first satisfy the three pre-conditions required by s 5B(1) of the CL Act, and then satisfy and deal with the requirements of s 5B(2) of the CL Act.

Statutory provisions

101. Section 5B of the CL Act provides as follows:

5B General principles

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

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

(b) the risk was not insignificant, and

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

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

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

(b) the likely seriousness of the harm,

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

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

102. Section 5C of the CL Act provides as follows:

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

No negligence on the part of the first defendant

103. In light of the finding that there was no relationship of employment of the second defendant by the first defendant, and no vicarious liability, no basis arises for a negligence finding against the first defendant.

Claim of negligence against the second defendant

104. When the second defendant carried the box of shallots into the crowded public area of the Markets towards the vicinity of the plaintiff in the manner that I have found to have been the case, on a prospective analysis, he ought to have known there was a risk of injury to persons such as the plaintiff in the vicinity, if he did not maintain a proper lookout so as to avoid colliding with such pedestrians: s 5B(1)(a) of the CL Act.

105. That risk of a collision was not insignificant in the context of him transporting a box of goods in a crowded vegetable market where his vision or line of sight ahead was being obscured by the height of the shallot leaves in the box he was carrying: s 5B(1)(b) of the CL Act.

106. In my opinion, a reasonable person in the position of the second defendant whilst carrying such a box would have taken the precaution of keeping a proper lookout as to the way ahead, in order to avoid a collision with other market users in the vicinity: s 5B(1)(c) of the CL Act.

107. I am therefore persuaded that the second defendant failed in each of those aspects of his duty of care when he collided with the plaintiff. Consequently, the plaintiff has satisfied the three mandatory preconditions required by s 5B(1) of the CL Act to form the foundation for a consideration of the remaining elements that now follow in respect of a negligence analysis.

108. I find that, if the second defendant had taken the reasonable precaution of keeping an avoidant proper lookout whilst carrying the box of shallots, he ought to have realised that a collision was likely if he did not take the described precautions: s 5B(2) of the CL Act. A consequential collision with another person was likely to cause serious injury: s 5B(2)(b) of the CL Act. The burden of taking the avoidant precaution of reasonable care by keeping a proper lookout to avoid colliding with other market users was negligible in the circumstances: s 5B(2)(c) of the CL Act. No questions of social utility arise: s 5B(2)(d) of the CL Act. No considerations arise concerning s 5BC of the CL Act.

Conclusion on negligence

109. For the foregoing reasons I am persuaded that the plaintiff has satisfactorily established that the second defendant was negligent in the circumstances of her injury.

Issue 8 – Causation

110. To obtain an award of damages the plaintiff must establish causation according to the requirements of s 5D of the CL Act. That section provides as follows:

5D General principles

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

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

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

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

111. I am satisfied that but for the negligence of the second defendant as found at paragraph [108] above, the plaintiff’s injury would not have occurred. Accordingly, the plaintiff has satisfied the requirements for proof of factual causation: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].

112. On the question of whether the scope of the second defendant’s liability should be extended to the harm comprising the plaintiff’s injury, it is only appropriate that be so: s 5D(1)(b) of the CL Act. This is because the second defendant was carrying out a commercial activity for his own financial gain in a public place. It is therefore appropriate that he be held liable for his careless conduct in that activity on this occasion.

Issue 9 – Assessment of damages

113. In the paragraphs that now follow I set out my review and findings as to the plaintiff’s injuries, the medical evidence, and the plaintiff’s disabilities, followed by my assessment of the heads of damage that the plaintiff is entitled to claim.

Injuries and initial treatment

114. Immediately following her fall the plaintiff experienced significant pain on her right side and hip. She needed first aid assistance. She had also hit her head on the pavement but did not lose consciousness. She also felt pain

115. An ambulance was called and she was taken to Concord Hospital where she underwent surgery for the insertion of an intramedullary rod in her right femur, with other screwed fixation implements. She later underwent rehabilitation treatment at St Joseph’s Hospital.

Medical and allied reviews

116. The chronology of the plaintiff’s pre and post-accident medical and allied assessments, as recorded in the medical evidence, is as follows:

Pre-accident

1. On 24 September 2002, the plaintiff saw Dr Paul Annelt, a sports physician at the request of her treating general practitioner. He diagnosed an acute episode of non-specific lower back pain against the background of a probable musculoskeletal strain, for which he recommended rest, anti-inflammatory medication and physiotherapy. He expected the plaintiff would return to normal in the ensuing 2 – 3 weeks: Exhibit “A”, p 307;

2. In December 2009, the plaintiff was admitted to Royal Prince Alfred Hospital following a fall at a Railway Station. X-rays revealed a burst fracture of L1, later described as a crush fracture, with 10 per cent retropulsion and canal stenosis estimated at 20 per cent. At that time the plaintiff was noted to have complained of right hip pain. She was fitted with a thoraco-lumbar brace and was treated with physiotherapy. She was discharged on 12 December 2009 into the care of her general practitioner: Exhibit “A”, pp 308 – 313;

3. On 5 April 2011, the plaintiff was seen at the Concord Hospital Medical Centre for management of hyperthyroidism and severe osteoporosis: Exhibit “A”, p 314;

Post-accident

1. On 20 October 2018, following the accident, the plaintiff was taken by ambulance to Concord Hospital with a history of having injured her head and her right hip in a fall. She underwent x-rays of her chest and her right femur, which revealed a mildly displaced sub-trochanteric fracture with 9mm of lateral displacement of the femoral shaft. Her fracture was treated surgically by the insertion of intramedullary hardware. She was discharged to St Joseph’s Hospital, on 24 October 2018: Exhibit “A”, pp 75 – 85;

2. On 24 October 2018, the plaintiff was admitted to St Joseph’s Hospital for rehabilitation therapy, whilst there, she was diagnosed with vasovagal syncope, deranged liver function test results, and musculoskeletal de-conditioning. She was discharged from that hospital 26 days later on 21 November 2018: Exhibit “A”, pp 86 – 88;

3. On 25 October 2018, the plaintiff underwent a physiotherapy assessment whilst in St Joseph’s Hospital, at which time it was determined that she would need continuing physiotherapy treatment post-discharge: Exhibit “A”, pp 315 – 317;

4. On 8 November 2018, the plaintiff underwent an occupational therapy assessment at St Joseph’s Hospital which resulted in her being provided with a range of assistive devices for various tasks: Exhibit “A”, pp 97 – 106;

5. On 19 November 2018, the plaintiff underwent an occupational therapy home risk assessment before she was discharged from St Joseph’s Hospital: Exhibit “A”, pp 107 – 111;

6. On 21 November 2018, the plaintiff was discharged from St Joseph’s Hospital: Exhibit “A”, pp 86 – 87;

7. On 27 November 2018, the plaintiff underwent an x-ray of her right hip joint which revealed correct placement of hardware without complication: Exhibit “A”, p 88;

8. On 30 November 2018, the plaintiff was assessed 6 weeks post-operatively by an orthopaedic registrar. She was found to have been progressing well, using a walker and a walking stick for mobility: Exhibit “A”, p 89;

9. On 2 December 2018, the plaintiff was reviewed by Dr De Neptune, an orthopaedic registrar for Dr Paul Della Torre at Concord Hospital. She was walking well with the aid of a walker and was progressing to a walking stick under the supervision of a physiotherapist. Ongoing physiotherapy, hydrotherapy and bicycle exercises were prescribed. On x-ray examination the fracture was noted to be healing well   : Exhibit “A”, pp 89 – 92;

10. On 10 January 2019, the plaintiff underwent an x-ray of her right femur which revealed that the intramedullary nail was in situ as expected. It was noted that healing was progressing: Exhibit “A”, p 91;

11. On 10 January 2019, the plaintiff was reviewed again by an orthopaedic registrar who noted she was progressing amazingly well, and was still using mobility aids: Exhibit “A”, p 90;

12. On 26 June 2019, the plaintiff commenced a physiotherapy programme or referral from St Joseph’s Hospital. The initial objective of that treatment was to assist her with bed mobility, sitting balance, independent standing, and some outdoor mobility. It was noted the plaintiff was fearful of falling, and had decreased balance with gait abnormality: Exhibit “A”, pp 93 – 94;

13. On 15 July 2019, the plaintiff completed her physiotherapy programme. As a result, she was able to drive again, she was able to walk on all surfaces, unaided, and was able to walk up and down 3 steps, unaided. The assessment was that her balance and her mobility had improved significantly: Exhibit “A”, pp 95 – 96;

14. On 2 December 2019, at the request of her solicitor, the plaintiff was examined by Dr Drew Dixon, a consultant orthopaedic surgeon whose report of that examination was dated 9 December 2019: Exhibit “A”, pp 36 – 47. An x-ray taken on that date showed a healed fracture: Exhibit “A”, p 92. He noted that despite treatment, the plaintiff had a residual limp on the right with pain in the lateral right hip region. He also noted the plaintiff’s complaints of difficulty standing on her toes and difficulty with prolonged walking for more than 15 minutes, with reduced sitting and standing tolerance, and residual weakness in the right leg, with an associated fear of falling. He noted unsightly hypertrophic pigmented surgical scarring to the right leg and painful movements and stiffness in the right hip;

15. On 13 February 2020, at the request of the solicitor for the first defendant, the plaintiff was examined by Dr Robin Chase, an occupational physician. This resulted in a report dated 21 February 2002. Dr Chase noted the plaintiff had right thigh wasting, with a restricted range of motion in the right hip compared to the left. Dr Chase made a diagnosis of mild right trochanteric bursitis, and noted there was a long-term increased risk of osteoarthritis in the right hip: Exhibit “A”, pp 327 – 334;

16. On 18 March 2021, at the request of the solicitor for the first defendant, the plaintiff was examined by Dr Roger Rowe, an orthopaedic surgeon. Dr Rowe noted the plaintiff’s “current status” or symptoms as being unable to cross her legs when seated, difficulty washing her right foot and cutting her toenails, difficulty putting on and removing the sock on her right foot, difficulty squatting, difficulty reaching into a low cupboard, difficulty remaining squatting such as when weeding the garden, poor balance with the right leg, aching in the right thigh in cold weather or in winter, and anxiety around trolleys being used in a supermarket. He also noted the plaintiff was fearful of falling when walking in the street. He noted the plaintiff’s residual restrictions were consistent with her history of injury, and considered the prognosis would remain as she is at present. He considered the plaintiff would not need future treatment nor would she need domestic assistance. He disagreed with Dr Dixon’s opinion that the plaintiff might need removal of her indwelling hardware as it remained securely in place. He disagreed with Dr Dixon’s suggestions for rehabilitation as she was functioning satisfactorily, he disagreed with Dr Dixon’s prognosis for probable development of arthritic change in the right hip, and he described the prospect of a need for a right hip replacement as highly unlikely: Exhibit “A”, pp 335 – 345;

1. On 17 March 2021, at the request of the solicitor for first defendant, the plaintiff was assessed at her home by Ms Di Owens, an occupational therapist. Her report on that assessment was dated 31 March 2021: Exhibit “A”, pp 346 – 396. Her analysis will be considered in connection with the plaintiff’s claim for damages for domestic assistance;

2. On 3 June 2021, the plaintiff was re-examined by Dr Dixon. He noted the plaintiff’s symptoms essentially remained the same as when he last examined her but there had been some slight improvement in her standing tolerance, now 20 minutes rather than 15 minutes. He noted the plaintiff still felt residual weakness and instability of the right leg, especially after walking for half an hour. He considered the plaintiff had a guarded prognosis for returning to heavy household chores, heavy grocery shopping, yard work and gardening: Exhibit “A”, pp 42 – 47;

3. On 9 June 2021, at the request of her solicitor, the plaintiff was assessed in her home by Ms Jacqueline Scott, an occupational therapist, whose report is dated 21 June 2021: Exhibit “A”, pp 48 – 74. That report will be analysed in connection with the plaintiff’s claim for domestic assistance;

4. On 22 July 2021, Dr Dixon and Dr Rowe met in a conclave and produced a joint report of that meeting: Exhibit “A”, pp 394 – 396. These experts agreed that the plaintiff had received reasonable and necessary treatment and that she needs some assistance with household chores, a situation which is unlikely to change. They agreed she had residual restriction in the movement of her right hip joint. They also agreed that it is unlikely there will be significant improvement or deterioration in the plaintiff’s condition. In addition, Dr Dixon considered the plaintiff had retro-patellar crepitus, whereas Dr Rowe found the right knee to be normal. Whilst they agreed no further rehabilitation should be needed, Dr Dixon considered she may need a cortisone injection if there was a flare-up in the plaintiff’s trochanteric bursitis. The experts also agreed that it was possible the internal fixation device may need removal if loosening occurred;

5. On 26 July 2021, an occupational therapy conclave proceeded between Ms Owens and Ms Scott: Exhibit “A”, pp 397 – 422. The products of that meeting will be examined in connection with the plaintiff’s claim for domestic assistance.

117. The results of those examinations, and the matters canvassed in the plaintiff’s evidence, will form the basis for findings on the plaintiff’s ongoing disabilities.

Disabilities

118. I have found the plaintiff to be a credible witness. I have accepted her evidence in its entirety. There is no substantial conflict in the opinions of the respective medical examiners as to diagnosis of the plaintiff’s accident-related disabilities. I therefore propose to treat the medical histories as recorded by the assessing practitioners as evidence outlining her post-injury disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW). I have drawn upon the content of the tendered medical reports to identify relevant aspects of the plaintiff’s history, and her disabilities, as there documented.

119. Although the plaintiff’s primary injury has healed well after her surgery, the preponderance of the medical evidence is that on the balance of probabilities she is at increased risk of developing osteoarthritis in her right hip as explained by Dr Dixon and Dr Chase: Exhibit “A”, p 40; p 328. Dr Rowe’s report seems to accept the prospect of development of arthritic changes in the right hip. She may need future surgery for either hardware removal if it becomes loose, or she may need hip replacement, or both.

120. The plaintiff has trochanteric bursitis in the right hip. She has retro-patellar crepitus in her right knee. She has an antalgic limping gait, she is left with post-surgical scarring with hypertrophic changes. She has pain, discomfort, stiffness and restriction of movement in her right hip and right knee. She has consequential concerns over her ability to maintain her balance. She has weakness and instability in her right knee. She has wasting of her right thigh. She has difficulty standing and walking for prolonged periods.

121. The plaintiff also has difficulty with some aspects of her personal care. These are unwelcome changes in her health status which she did not need, especially at her age. These problems restrict her everyday activities and adversely impact on her activities of daily living, including with regard to the heavier and more demanding aspects of housework, household management, shopping, and garden maintenance. Consequently, these latter problems indicate the plaintiff has needed and continues to need domestic assistance for tasks that she had performed beforehand without difficulty.

Mitigation

122. The defendant did not submit that the plaintiff had in any way failed to take reasonable steps to mitigate her damages. I now turn to the assessment of the plaintiff’s claim for damages.

Non-economic loss

123. The parties made widely disparate submissions on the appropriate percentage assessment of non-economic loss damages to be assessed pursuant to s 16 of the CL Act. The plaintiff submitted s 16 damages should be assessed at 35 per cent of a most extreme case. In contrast, the defendants, or more properly, the first defendant, as adopted by the second defendant, submitted that non-economic loss damages should be assessed in the range of 18 per cent to 22 per cent of a most extreme case.

124. In my view, the defence submission on non-economic loss, if accepted, would result in a manifestly inadequate assessment of damages.

125. Having regard to the plaintiff’s account of her disabilities, which I accept, her age, the medical evidence cited above, her underlying conditions of health, and the deleterious effect the injuries have had upon her, and as noted in the histories recorded in the medical and allied evidence, I consider the appropriate assessment of non-economic loss damages should be 32 per cent of a most extreme case.

126. I therefore assess the plaintiff’s damages for non-economic loss at 32 per cent of a most extreme case, which is the monetary equivalent of $208,500.

Past domestic assistance

127. The plaintiff made a claim for the value of past gratuitously provided domestic care and assistance in the sum of $11,077. In contrast, the defendants submitted that the evidence does not satisfy the minimum threshold requirements of 6 hours per week for 6 months according to s 15 of the CL Act for the making of an award of damages for past domestic assistance because, as at 5 months post-accident, the plaintiff was receiving domestic assistance for herself, at a rate of less than the statutory assessment requirement of 6 hours per week.

128. In that regard, the defence submission was as follows:

1. Given the apparent divergence between the evidence given by the Plaintiff and the apparent assumptions in the report of the Plaintiffs OT, Ms Scott’s, report dated 21 June 2021, it is only necessary to make one point in relation to that report, as it relates to past care.

2. That is, in relation to the first stage of care identified in the report, being between 20 October 2018 and 19 November 2018, was the period in which the Plaintiff was in hospital (both Concord Hospital and then St Joseph’s Hospital in Auburn). Accordingly, no allowance for care can be made for that period: Nicholson v Nicholson (1994) 35 NSWLR 308. The Plaintiff has taken the same position in her schedule of damages dated 5 August 2021.

3. That results in the 6 months period for the purposes of s 15 of the CL A commencing on 20 November 2018 and ceasing on 19 May 2019.

4. The Plaintiffs evidence in respect was that:

   (a)   she was discharged from St Joseph’s on 19 November 2018;

   (b)   thereafter, her husband took a month off, before returning to work fulltime;

   (c)   the Plaintiff returned to doing laundry, in part, 4 to 5 months post-accident, following which she only needed help having the washing hung out: T17.23-27;

   (d)   the Plaintiff returned to doing ironing and the folding by 5 months after the accident, albeit sitting down: T17.33; T17.50-T18.5;

   (e)   the hanging out of the washing took about 30 minutes each time, once or twice a week: T18.10-20;

   (f)   the Plaintiffs husband took over the weeding in the garden, which took 15-20 minutes, and took place every 10 days in summer and every 6 weeks in winter: T19.5-15;

   (g)   the Plaintiffs husband took over the lawn mowing, which took 30 to 45 minutes, and took place every 2 weeks in summer and every 2-3 months in winter: T19.17- 30;

   (h)   the Plaintiffs son took over the cleaning of the two bathrooms, which took a total of 15 minutes a week: T20.40-T21.15;

   (i)   the Plaintiff continues to shop, however her husband now accompanies her, when before the accident she mostly did it alone, and it now takes less than 2 hours, when before it took 3 hours a week: T22.10; T22.30-T23.5;

   (j)   the Plaintiffs son helps about 50 minutes a week in relation to cooking: T23.45- T24.10;

   (k)   the Plaintiffs husband and son have taken over mopping the balcony, which takes 5 minutes a week: T24.20-30;

   (l)   the Plaintiffs husband or son has to drive the Plaintiff to appointments, however there was no evidence as to the time or duration of these appointments: T23.20-25.

5. The First Defendant submits that the nature of the evidence given by the Plaintiff is not of sufficient precision to permit findings to be made as to when, as opposed for how long, services were being provided.

6. However, and alternatively, and even taking the Plaintiffs evidence at its highest, the total of the evidence at [119] above does not satisfy the 6 hours a week prescribed threshold.”

[First defendant’s written submissions par 116 – par 121]

129. I accept the first defendant’s submissions in respect of this head of damage as cited above. Accordingly, I make no monetary allowance for past gratuitously provided domestic assistance.

Future domestic assistance

130. The plaintiff made an initial claim for the value of future paid domestic assistance in the sum of $97,971. In contrast, with reliance on the matters discussed in Miller v Galderisi [2009] NSWCA 353, at [24], the position submitted by the defendants was that there should be no award for the value or cost of future paid domestic assistance.

131. In my view, whilst the future domestic assistance submission made on behalf of the plaintiff is excessive, the defence submission on this head of damage should not be accepted.

132. This is because first, the plaintiff has been left with an accident-related difficulty with a range of domestic tasks and requires assistance, whereas before the accident this was not the case. Secondly, it cannot be reasonably assumed that her husband, who works full time, will be able to continue to provide such assistance gratuitously. Thirdly, on the evidence, it is unlikely that the plaintiff’s son will be able to continue to provide his assistance for much longer, thus giving rise to a need to obtain external assistance in lieu.

133. Ultimately, the plaintiff’s claim involved a calculation of the value of 1.33 hours per week of commercial care at $49.32 per hour over her remaining statistical lifespan of an estimated 19 years (x 646.2), and similar projections for the value of 1 hour per week for lawn and garden maintenance at $75 per hour, plus $11 per week for the cost of delivering the larger or bulky items of grocery shopping. The total amount claimed for projection was $135.32 per week, yielding an undiscounted projected sum of $87,443.

134. The plaintiff’s calculation was based on the time estimates calculated by the occupational therapist, Ms Scott. The defendant’s submissions, in the amount of $14,971, were based on the much meaner and leaner estimates provided by Ms Owens, the occupational therapist engaged by the first defendant. I consider the latter estimate to be unreasonably low, arbitrary, and inadequate.

135. In my view, this head of damage is incapable of precise estimation along the submitted pseudo-mathematical lines advanced by the parties. Furthermore, a discount must be applied to account for potential adverse vicissitudes and the possible future effects of the plaintiff’s underlying conditions of health that have nothing to do with the subject injuries: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, at [139]; [153]. In addition, there is the prospect that the plaintiff’s household will become smaller in the not too distant future when her son leaves the home, which will most probably have a proportionate reducing effect on the time required for domestic assistance.

136. When the plaintiff’s son leaves home, which seems likely in the near future, this will most probably give rise to a need for the plaintiff to engage paid domestic assistance, particularly as her husband continues to work. In this case, the defendants cannot rely upon his continued gratuitous input: ANZ Banking Corporation Ltd v Haq [2016] NSWCA 93, at [50].

137. Having due regard to those matters I consider that the preferable approach to assessing this head of damage is to award a discounted global buffer amount. I therefore assess the plaintiff’s damages for future paid domestic assistance in the buffer amount of $35,000.

Future treatment expenses

138. The plaintiff made a claim for the likely cost of future out-of-pocket and treatment expenses in the buffer amount of $30,000.

139. That claim took into account a number of elements. These comprised Dr Dixon’s view that in the future, the plaintiff may require cortisone injections, removal of hardware and a total hip replacement. These will involve consultations with a general practitioner for referrals, pain medication, hospital expenses, physiotherapy and rehabilitation. The plaintiff’s estimate also includes the occupational therapist’s recommendation for a pain management programme involving a cost of the order of $9000.

140. In contrast, on behalf of the defendants, it was submitted in reliance on the opinion of Dr Rowe, that there should be no award for future treatment expenses. That submission also seems to be based on the proposition that the plaintiff is not presently receiving any treatment.

141. In view of the plaintiff’s age, her underlying osteoporosis and the possibility that the indwelling hardware may loosen and require removal, and the prospect of hip replacement surgery due to the possible development of osteoarthritis in the right hip, I consider that an appropriately discounted buffer amount should be included in the plaintiff’s damages to allow for those possibilities: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, at pp 642 – 643; Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, at [170].

142. Having due regard to those matters I consider that the preferable approach to assessing this head of damage is to award a discounted global buffer amount. I assess the plaintiff’s damages for future treatment in the buffer amount of $7500.

Past out-of-pocket expenses

143. I assess the plaintiff’s damages for past out-of-pocket expenses in the agreed amount of $1876.71.

Summary of damages assessment

144. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$208,000
(b) Past domestic assistance	$Nil
(c) Future domestic assistance	$35,000
(d) Future treatment expenses	$7,500
(e) Past out-of-pocket expenses	$1,876.71
Total	$252,376.71

Disposition

145. The plaintiff has not succeeded in her claim against the first defendant. She has succeeded against the second defendant and her damages against that defendant are assessed at $252,376.71.

Costs

146. As the first defendant has avoided any liability in these proceedings he is entitled to have his costs of defending the proceedings paid by the plaintiff since the plaintiff has failed to prove her case against him.

147. As the plaintiff has succeeded in obtaining a judgment in her favour against the second defendant, she should have an order that the second defendant pay her costs of the proceedings against that defendant on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

148. I make the following orders:

1. Verdict and judgment for the first defendant against the plaintiff;

2. The plaintiff is to pay the first defendant’s costs of defending the proceedings the plaintiff has brought against him on the ordinary basis;

3. Verdict and judgment for the plaintiff against the second defendant in the amount of $252,376.71;

4. The second defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

5. The exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 11 February 2022