Pietrobelli v Jewell Family Nominees Pty Ltd

[2022] NSWSC 660

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660

Hearing dates:

30 November 2020 to 4 December 2020 and 6 February 2021

Date of orders:

24 May 2022

Decision date:

24 May 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

For these reasons, I make the following orders:

(1)   Judgment for the plaintiff.

(2)   The plaintiff shall file and serve Short Minutes of Order reflecting this judgment within 14 days of the delivery of the judgment. If the parties are unable to agree on the Short Minutes of Order, they shall each file submissions, limited to five pages, on the issues in contention with my Associate by email within a further 14 days. If an oral hearing is sought, in addition to their written submissions, they may approach my Associate to schedule such a hearing.

(3)   Costs and interest are reserved.

Catchwords:

TORTS – negligence – personal injury – liability – pleading of slip – duty of care – breach of duty – causation – damages – pre-accident conditions – evidence of injuries sustained by the incident – surveillance evidence – non-economic loss – economic loss – out of pocket expenses – future treatment – care of another – direction for short minutes

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5

Amond v Al Batat (2009) 54 MVR 167

Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7

Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34

Benic v State of New South Wales [2010] NSWSC 1039

Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370

Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393 [2014] NSWCA 139

Bunnings Group Ltd v Giudice [2018] NSWCA 144

Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799

Carangelov State of New South Wales [2016] NSWCA 126

Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37

Council of the City of Greater Taree v Wells [2010] NSWCA 147

CSR Limited v Eddy; 226 CLR 1; [2005] HCA 64

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301

Dybka v McKenzie [2002] NSWCA 171

Fitzgerald v Penn (1954) 91 CLR 268

Francis v Lewis [2003] NSWCA 152

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Gordon v Truong; Truong v Gordon [2014] NSWCA 97

Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72

Hilas v Todburn Pty Limited (Trading as Hurstville Supercentre) [2007] NSWCA 315

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8)

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; [2005] HCA 15

Laresu Pty Ltd v Clark [2010] NSWCA 180

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985] HCA 37

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642–3; [1990] HCA 20

Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Marien v Gardiner [2013] NSWCA 396; 66 MVR 1

McKenna v Hunter & New England Local Health District [2013] NSWCA 476

McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536

Miller v Galderisi [2009] NSWCA 353

Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341

Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253

Piatti v ACN 000 246 542 Pty Ltd [2020] NSWCA 368

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

Roads and Traffic Authority of New South Wales v Dederer 234 CLR 330; [2007] HCA 42

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29

South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8

Stannus v Graham (1994) Aust Torts Rpts 82-293

Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478

Stojan (No 9) Pty Ltd v Kenway (2009) 210 LGERA 90; [2009] NSWCA 364

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

T and X Company Pty Ltd v Chivas [2014] NSWCA 235

United Church of Australia Property Trust (NSW) v Miller [2015] NSWCA 320

Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54

Verryt v Schaupp [2015] NSWCA 128

Waverley Council v Ferreira [2005] NSWCA 418

Waverley Council v Lodge [2001] NSWCA 439

Weber v Greater Hume Shire Council [2019] NSWCA 74

Wilkinson v Law Courts Ltd [2011] NSWCA 196

Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Texts Cited:

WD Duncan and Christensen, Commercial Leases in Australia (Thomas Reuters, 8th ed, 2017)

Category:

Principal judgment

Parties:

Narelle Pietrobelli (plaintiff)
Jewell Family Nominees Pty Ltd (defendant)

Representation:

Counsel:
D Hooke SC, appearing with G Smith (plaintiff)
A Cheshire SC, appearing with R Perla (defendant)

Solicitors:
Lough & Wells (plaintiff)
Colin Biggers & Paisley Pty Ltd (defendant)

File Number(s):

2019/157514

Judgment

1. By a statement of claim filed 20 May 2019 (“the statement of claim”), Narelle Pietrobelli (“the plaintiff”) commenced an action in negligence against Jewell Family Nominees Pty Ltd t/as Tiger Putt Putt (“the defendant”) (“the proceedings”).

2. The defendant was the registered proprietor of the business which, operated at a premises, known as the Tiger Putt Putt and Little Tiges Play Centre (“the business”). The defendant had the care, control and management of the premises, as at that time. The business was owned by Mark Jewell and Amy Jewell. Mr Jewell was 50% shareholder and Mrs Jewell was 50% shareholder as well as the sole Director and Secretary of the business.

3. In 2007, Mr and Mrs Jewell executed the lease on behalf of the defendant with the owner to lease the premises for a period of five years with an option to renew, commencing on 1 April 2007. Mr and Mrs Jewell leased the premises until the business was no longer financially viable. The lease was terminated in 2019.

4. Although the plaintiff commenced the proceedings against the owner of the premises (as the first defendant), she did not pursue that case and consented to judgment being entered in the first defendant's favour. Accordingly, these proceedings have continued against only the defendant.

5. On 2 July 2016, the plaintiff was in attendance at the premises for the purposes of attending a birthday party for a six year old daughter of family friends, the Douet family.

6. Prior to the date of the incident Mr Douet made enquiries with the defendant about booking a party room for his daughter, Caitlin's party. He was advised that the two downstairs rooms were booked out however there was an upstairs room that was available. The party room was booked on that basis.

7. Mr Douet arrived at the premises around midday with his wife and daughter.

8. At approximately 1:15pm, the plaintiff arrived at the premises. The plaintiff attended with her disabled daughter, Bethany, then 13 years of age.

9. Upon arrival the plaintiff’s daughter participated in the putt putt activity. The plaintiff recalled paying $8.00 for her daughter to play. Whilst the plaintiff’s daughter and other children at the party played on the putt putt course in the premises, the plaintiff sat in the coffee/cafeteria area with the other parents.

10. The plaintiff’s husband, Mr Joshua Pietrobelli, arrived some time later after attending their son Anthony’s football game.

11. The party then relocated upstairs to the party room where party food was to be supplied for the children. Mr Douet described the party room as having a “stale and very musty smell” and that the room was set up with some tables and chairs and it was illuminated with lights. Further, he described the room as having tables and chairs stored in one corner of the room. The defendant substantially contested those statements. However, for reasons given later I accept the evidence.

12. Access to the party room was by way of a stairway which consisted of 16 steps with a single handrail positioned along the length of the stairway. The stairs were constructed from steel and the step treads were covered in carpet (“the stairs”). Approximately 2.1 m above the floor, vertically in line with the second step down from the top landing of the stairway was a light which consisted of two spotlights (“the stair lights”). An issue in the proceedings was whether the stair lights were on at the time of the incident.

13. At approximately 4.00pm, the plaintiff left the party room and commenced her descent of the stairs. The plaintiff went down a few stairs. The plaintiff stated that it was one or two stairs, before turning around to the people behind her and saying words to the effect of “Be Careful. You can’t get your foot properly on the stairs”. After taking a few further steps, the plaintiff then fell down the stairs. The plaintiff stated that the fall occurred after taking a further one or two steps. The defendant contended that the plaintiff fell at least four to six steps down from the top of the stairs and in the top half of the stairway. The plaintiff recalled hitting her hand and falling down the remainder of the stairs, landing amidst chairs against the small wall at the bottom of the stairs sustaining injury (“the incident”).

14. An ambulance was initially called but then cancelled. A second ambulance was then called. The plaintiff remained at the foot of the staircase until she was treated by ambulance officers.

15. An ambulance arrived and took the plaintiff to Shellharbour Hospital where she was assessed.

16. Mr Jewell then made a handwritten incident report which was subsequently signed by both himself and Mr Pietrobelli.

17. The plaintiff was assessed at Shellharbour Hospital and X-Rays were taken. The plaintiff was told she had a bulging disc but could go home and rest. The plaintiff elected to go home.

18. The following day the plaintiff spent the day laying on the couch. The plaintiff was then driven to Wollongong Hospital, where she was admitted from 4 July 2016 until her discharge on 13 July 2016. At the time of her discharge the plaintiff was transferred to Port Kembla Rehabilitation Hospital until 24 August 2016.

THE EVIDENCE

19. The Court had before it substantial material filed with respect to the proceedings, which consisted of evidentiary statements, medical evidence, including clinical reports and various documentations relied upon by the parties.

20. The following evidentiary statements were filed on behalf of plaintiff:

1. Evidentiary Statements of Narelle Pietrobelli sworn on 8 May 2020 and 13 October 2020

2. Evidentiary Statement of Joshua Pietrobelli sworn on 7 May 2020

3. Evidentiary Statement of Karina Pietrobelli sworn on 8 May 2020

4. Evidentiary Statement of Rhiannon Douet sworn on 19 August 2020

5. Evidentiary Statement of Laurent Douet sworn on 19 August 2020

21. The following evidentiary statement was filed on behalf of the defendant:

1. Evidentiary Statement of Mark Jewell sworn on 11 June 2020

22. All of the individuals who provided an evidentiary statement were called and gave evidence in the proceedings.

23. The plaintiff relied on the following liability reports:

1. Report of John Dimopoulos from Dohrmann Consulting dated 17 February 2017 (“Mr Dimopolous Primary Report”), and four supplementary reports dated 8 September 2017, 9 April 2018, 31 March 2020 and 13 August 2020

2. Report of Dr Jennifer Long dated 9 September 2020 (“Dr Long Report”)

3. Report of Mark Dohrmann from Dohrmann Consulting, dated 16 September 2020 (“Report of Mark Dohrmann”)

24. The defendant relied on the following liability reports:

1. Report of Dr John Cooke dated 7 November 2019

2. Report of Mark Bullen dated 22 May 2020

3. Report of Professor Stephen Dain dated 27 May 2020 (“Professor Dain Report” and a supplementary report dated 20 October 2020 (“Professor Dain Supplementary Report”).

4. Report of Dr Andrew McIntosh dated 29 May 2020 (“Dr McIntosh Report”)

25. The parties relied on the following Liability Conclave Joint Reports:

1. Architectural expert conclave report John Dimopoulos, Dr Cooke and Mark Bullen dated 24 September 2020 (“Architectural Conclave Report”)

2. Lighting expert conclave report Dr Long, Professor Dain and John Dimopoulos dated 22 October 2020 (“Lighting Conclave Report”)

3. Ergonomic expert conclave report Mark Dohrmann, Dr Mcintosh and John Dimopoulos dated 26 October 2020 (“Ergonomic Conclave Report”)

(collectively “the joint reports”)

26. The parties engaged numerous experts on various liability issues, which have been listed above. As was agreed by the parties at the hearing, the individual expert reports were tendered on the basis of providing a background and criticisms for matters that are contained in the joint reports. Therefore, the individual reports produced by the experts were tendered as background but were superseded in effect by the joint reports. The experts who prepared the Ergonomic Conclave Report were called and gave concurrent evidence at the hearing.

27. The plaintiff relied on the following medico-legal reports:

1. Reports of Dr Darveniza dated 23 April 2018 and 3 March 2020.

2. Reports of Dr Buckleu dated 10 July 2018 and 10 February 2020

3. Reports of Jonathon Phillips dated 12 August 2019 and 30 September 2020

4. Report of Jacqueline Scott dated 21 January 2020

28. The defendant relied on the following medico-legal reports:

1. Dr Adam Martin dated 28 November 2019

2. Dr Greg Bruce dated 19 November 2019

3. Dr Grant Walker dated 8 October 2019

4. Sanja Zeman dated 25 January 2020

5. Professor James Bright dated 29 April 2020

6. Reports of Dr Harvey Sutton dated 6 May 2020 and 7 May 2020.

29. The parties relied on the following Quantum Conclave Joint Reports:

1. Psychiatric conclave report of Dr Phillips and Dr Martin dated 29 October 2020

2. Rehabilitation conclave report Dr Buckley and Dr Harvey-Sutton dated 21 October 2020

3. Neurological conclave report Jacqueline Scott and Sanja Zeman dated 8 October 2020

4. Supplementary Occupational Therapist conclave report Jacqueline Scott and Sanja Zeman dated 11 November 2020

30. Dr Phillips and Dr Martin took part in the conclave report identified above and also gave evidence before the Court at hearing.

31. The plaintiff relied on the following Hospital Records:

1. Shellharbour Hospital Records

2. Port Kembla Hospital updated records served beyond the date of subpoenaed material

32. The plaintiff relied on the following treatment medical records/reports:

1. New Albion Medical Centre updated records served beyond the date of subpoenaed material

2. Dr Khan, psychologist updated records served beyond the date of subpoenaed material

3. Shellharbour City General Practice notes

4. Dr D Manohar notes

5. Medical Report from Dr Carol Ting, dated 17 February 2016 (“Dr Ting Report”)

33. The following reports and standards were also tendered in the proceedings:

1. Preamble to Building Code of Australia 2010

2. Stairway Falls, An ergonomic analysis of 80 cases” by Joseph and Ors, dated January 2009 (the “Stairways Fall paper”)

THE PREMISES

34. Prior to the defendant leasing the premises, the premises was being used as a Motor Vehicle Showroom.

35. Prior to the defendant commencing business at the premises, Mr Jewell contacted Shellharbour City Council (“the Council”), to enquire about a development application for the premises (“the Development Application”).

36. On 14 July 2009, Mr Jewell lodged a development application with the Council for approval to use the premises as an indoor putt putt and children’s play centre under the name “Tiger Putt Putt & Little Tiges Centre and Café & Signage”.

37. On 5 November 2009, the development application was approved. There were no development plans relating to the second level of the premises.

The Layout of the Premises

38. The premises was a large industrial style warehouse. The premises had two roller doors that were approximately 8 by 8 metres at the south facing front entrance and two identical north facing doors at the back of the building. Those doors opened to the side.

39. The front entrance also had glass windows and a glass door for entry situated immediately inside the roller doors. The south facing roller doors at the front entrance were always fully opened when the Centre was open to the public.

40. The north facing roller doors at the back of the premises were generally left open but were occasionally closed during the inclement weather to prevent any water ingress into the premises.

41. There were two levels to the premises, the ground floor and an upstairs area. The ground floor had a number of putt putt golf holes and children’s play equipment inside the premises. There were also a number of video game machines and arcade style games.

42. Below is an image showing a general view of the upstairs party room (arrowed) located above a small office and amenities area.

Image 1- General View of premises (party room arrowed)

43. The upstairs area compromised of a room and a separate toilet. When the defendant commenced leasing the premises, the upstairs area had been used as an office. The upstairs room was painted and used it as a “party room” throughout the duration of the lease.

44. The party room was available to hire to the general public. The party room was solely accessible by the stairs. Below is an image of the stairs looking up from the bottom of the stairway.

Image 2- the stairs looking up from the bottom of the stairway

45. The premises had large factory style lighting hanging from the roof. The stair lights were positioned approximately 2.1 m above the floor, vertically in line with the second step down from the top landing of the stairway The globes used were 100 watts. An image of the light positioned above the stairway appears below.

Image 3- light positioned above the stairway

46. There are two light switches for the lights positioned above the stairway, one at the top of the stairway (Image 4) and the second located at the bottom of the stairway (Image 5).

Image 4- Light switch at the top of the stairs (arrowed)

Image 5- looking down from the top of the stairway (light switch arrowed). The “X” in the image is where steps two and three are located.

47. When the lease commenced, there were translucent roofing panels throughout the premises. Due to deterioration, those panels were sprayed with a bonding agent that darkened the panels.

The Stairs

48. Mr Dimopolous’s Primary Report provided a table describing the architectural features of the stairs. That Table was adopted by the experts for the purposes of the Architectural Conclave Report and represented an uncontroversial background for the Ergonomic Conclave Report, as well as the concurrent evidence of experts, in that respect. The Table also formed the foundation for many of the contentions advanced by the parties in the proceedings.

49. The table is set out in full below.

Step No	Riser (R) (mm)	Going (G) (mm)	Quantity (2 x R + G)	Slope of Going (sloping leading down to the front of the stairs)
Top of stairs (leading from top landing)
1	182	217	581	0.8°
2	185	225*	595	0.2°
3	181	205*	567	2.5°
4	171*	216*	558	0.7°
5	176	208*	560	1.5°
6	175	207	557	0.7°
7	181*	213*	575	1.0°
8	171*	210*	552	0.9°
9	171	204*	546	1.4°
10	175	209	559	1.0°
11	172	215*	559	0.4°
12	178*	215	571	0.6°
13	178	205*	561	1.1°
14	178	218	574	0.8°
15	172	581	0.3°
16	161*	Bottom Landing	N/a	N/a

(the original table had an asterisks against step 6 in the goings column This was later identified as an error by Mr Dimopolous and has been removed)

50. The Table requires some explanation.

51. The going dimensions was described as “the length of the step or the amount of area provided on the step for the user to place their feet on”.

52. Mr Dimopolous did not define a riser in his report or oral evidence. The Oxford Dictionary defines a riser as a vertical section between the treads of a staircase. The Macquarie dictionary defines riser as “the vertical face of a stair step”. That definition is consistent with the use of the expression by the experts in the Architectural Conclave Report and the Ergonomic Conclave Report.

53. The expression slope of going was defined as the “sloping leading down to the front of the stairs”.

54. Some further explanation of the columns of the table are required beyond mere definition.

55. The riser and the going columns have various numerical entries upon which an asterisk appears. Mr Dimopolous indicated where there was a step variation is in excess of +/- 5mm from adjacent steps. He explained that he attached significance to a 5mm step variation because the BCA standards allows for a tolerance of +/- 5mm on the variations in going and riser dimensions. Anything outside that variation is non-compliant.

56. It should be noted, at this juncture, that I will ultimately find Mr Dimopolous to be an expert witness of credit who had significant experience giving expert opinions in matters to do with trips, slips and falls. He explained that the 5mm step variation obtains its significance because of variations in stair geometry has been shown to significantly contribute to accidents on stairs.

57. Mr Dimopolous explained that the numbers shown in the fourth column labelled “Quantity” represented a formula twice the sum of the figure shown in the riser column and the figure show in in the going. The column shows the slope relationship calculated from the riser and going dimensions. He explained that the significance of those amounts is that variation is one of a number of factors which impacts how well an individual can interpret their next step.

58. The last column was defined as slope of going he explained the significance of that column due to all the steps tilting downwards (when walking down the stairs) which further increases the risk of slipping down the stairs.

59. In the Ergonomic Conclave Report, the experts agreed that the stairs did not comply with the cl D2.13 of the Building Code Australia 2010 (the “BCA”) in the following respects:

1. The goings, were below the minimum dimension of 250 millimetres required by cl D2.13(a)(ii)

2. The goings and risers were not consistent throughout the flight as contrary cl D2.13(a)(iii)

60. It may be noted that experts concluded that the handrail was complaint with cl D2.17 of the BCA and the carpet on the stairs was complaint with the cl D2.13(a)(v) of the BCA.

61. The experts gave opinions as to the mechanisms for the plaintiffs fall. One mechanism that was discussed and was critical to the question of liability, in this matter, was “an overstep”. An overstep occurs where a foot lands during descent past the nosing of the step, causing the foot to slip down the front of the step

STATEMENT OF CLAIM

62. By the statement of claim, the plaintiff claimed, damages, interest and costs.

63. Relevant aspects of the pleadings are extracted below:

3. At all material times, Unit 1 consisted of a converted, open industrial building, including an upstairs party room located above a small office and amenities area.

4. At all material times, access to the upstairs party room was via one stairway ("the stairway").

5. On 2 July 2016, the plaintiff was in attendance at Unit 1, including the upstairs party room, for the purpose of a children's party.

6. At approximately 4:00pm on 2 July 2016, the plaintiff left the upstairs party room and was descending the stairway when her foot slipped off a stair tread, causing her to fall down the stairway, and thereby sustain injury, loss and damage. At the time of the plaintiff's fall, the light in the stairwell was switched off.

7. The said injury, loss and damage were caused by negligence on the part of the first and/or second defendants.

8. At all material times the first and/or second defendants owed the plaintiff a duty of care to take reasonable care to avoid a foreseeable risk of harm.

9. At all material times there was a risk of harm within the meaning of section 58 of the CivilLiabilityAct 2002 (NSW) that a person, exercising reasonable care, might sustain physical injury as a result of slipping whilst descending the stairway leading from the party room ("the risk of harm").

10. The risk of harm:

(a) Was foreseeable;

(b) Was not insignificant;

(c) In the circumstances, a reasonable person in the first defendant's position would have taken the precautions as alleged and particularised in paragraph 12 below;

(d) In the circumstances, a reasonable person in the second defendant's position would have taken the precautions as alleged and particularised in paragraph 13 below.

11. The plaintiff's said injuries, loss and damage were caused by and have arisen as a result of the negligence, and:

(a) That negligence was a necessary condition of the occurrence of the injury, loss and damage to the plaintiff; and

(b) It is appropriate that the scope of the defendants' liability to extend to that injury, loss and damage so caused.

Particulars of breach of duty of care on the part of the first defendant

12. The first defendant was in breach of its duty of care to the plaintiff in that it, through its servants and agents:

a. Failed to ensure that the going dimension of the steps on the stairway was adequate;

b. Failed to ensure that the going dimension of the steps on the stairway complied with the Building Code of Australia;

c. Failed to ensure consistency of the step dimension of the stairway;

d. Failed to carry out a review or audit of the stairway to identify hazards or risks, and take appropriate action in response;

e. Failed to prevent access to the stairway until it was rebuilt in accordance with the Building Code of Australia such that it failed to represent a slipping or tripping hazard;

f. Failed to install a proprietary nosing product over the front nosing of the steps on the stairway;

g. Failed to ensure that the edges of each step on the stairway were highlighted;

h. Failed to ensure that the stairway did not represent a slipping or tripping hazard;

i. Failed to provide an alternative means of access to the upstairs party room;

j. Failed to prevent public access to the stairway;

k. Failed to warn the plaintiff of the hazardous nature of the stairway;

l. Failed to perform or any adequate risk assessments of Unit 1;

m. Failed to identify any foreseeable hazards arising within Unit 1;

n. Failed to remove any foreseeable hazards arising within Unit 1;

o. Failed to ensure that the illumination levels in the stairway and surrounding areas met Australian Standard requirements;

p. Failed to ensure that the stairway and surrounding areas were adequately lit.

64. By an amended statement of particulars filed by the plaintiff on 30 June 2020, the particulars of injuries received are extracted below:

1.   Injury to head.

2.   Injury to neck.

3.   Injury to back with nerve compression.

4.   Psychiatric injury.

5.   Persistent depressive disorder.

6.   Somatic symptom disorder.

7.   Shock.

8.   Bruising.

65. The plaintiff also gave particulars of continuing disabilities and hospitalisation, The particulars of out of pocket expenses were in three parts, past expenses treatment, future expenses treatment and future Motor Vehicle/Home Modifications. Those are extracted below:

Past Expenses Treatment

a. The plaintiff has incurred hospital, medical, pharmaceutical and allied expenses. Further particulars will be provided in due course.

b. Part of her medical expenses have been claimed/paid by Medicare and particulars will be obtained and provided.

c. It was necessary to carry out modifications to the plaintiff's home prior to her discharge from hospital. These modifications included:

A ramp leading up to the back door.

Some grab rails in the home for her security.

The cost for these modifications was approximately $500.

d. Further the plaintiff requires other modifications to the home and particulars will be provided.

e. The plaintiff because of her inability to properly use her right foot has required modification to motor vehicles at a cost of approximately $3,650.

Future Expenses Treatment

a. Attendances upon general practitioner claimed at once monthly four times per year, twice at the level C extended service rate being $129.00 and twice at the level B specific service rate being $81 per attendance.

b. Medication including:

Endone - 10 tablets per month on average

Targin

Lyrica - 150mg in the morning and 225mg at night

Lipidil

Panadol Osteo - 2 tablets 3 times per day

Medication is claimed at $50 per week.

The plaintiff has been advised of a further alternate medication and particulars will be provided.

c. Attendance upon a specialist for her ongoing pain management twice per annum planned at $160 per attendance.

d. Psychiatric attendance claimed at four times per annum at $260 per attendance.

e. Psychological counselling claimed at six sessions per annum at $160 per session.

f. The plaintiff requires 40 to 50 practical psychotherapy sessions to be completed within two years. The psychotherapy should be based on cognitive/behavioural principles and led by a psychiatrist or clinical psychologist. The plaintiff claims the cost of same in the sum of $370.00 per session.

g. In the year after the conclusion of formal therapy the plaintiff claims that she requires monthly follow up for a period of 12 months at a cost of $370.00 per session.

h. Thereafter1 for a further year the plaintiff claims that she requires bi-monthly sessions of psychotherapy at a cost of $370.00 per session.

i. Pads claimed at $10.00 per month.

Future Motor Vehicle/Home Modifications

Given that the home of the plaintiff has been modified and given that motor vehicles to be driven by her require modification an ambit claim of $100,000 is made.

66. The plaintiff also gave particulars of claim for domestic assistance or attendant care and care of others. The particulars in relation to loss and earning capacity and future economic loss, were summarised in the following terms:

A summary of the plaintiff's claim for past economic loss is as follows:

1.   From 1 August 2016 (offer of employment with Ribbonwood Centre - disability support worker - whilst in hospital) until September 2017 (Uniting Care) a loss of $45,920.

2.   From 5 October 2018 until 14 October 2018 a loss of $820 net per week being employed by Waminda a loss of 2 days per week employment claimed at $427.00 net per week. This loss is continuing.

3.   From 15 October 2018 employed by Waminda with a loss of, on average, 2 days per week employment being a loss of $427 net per week. This loss is continuing.

4.   From 15 March 2019 the plaintiff claims that she has been unable to return to work in any capacity as a result of her injuries and disabilities and loss in the sum of $820.00 per week is claimed from 15 March 2019 to date and continuing.

Future economic loss

1.   The plaintiff, but for her injury, would have worked until age 70 years.

2.   The plaintiff is unfit for her pre-injury duties in high level nursing care and associated activities and other work reasonably available to her in the open labour market as a consequence of the injuries suffered.

3.   As a result of her injuries and ongoing disabilities the plaintiff has been unable to return to the workforce since March 2019 and claims loss in the sum of $820.00 net per week from 15 March 2019 to date and continuing to age 70.

6.   Further the plaintiff is unfit for work otherwise reasonably available to her, is unlikely to be able to maintain permanent future employment and accordingly claims an additional sum upon the basis that it is unlikely she will be able to maintain regular suitable employment, will have breaks in her employment and has lost the opportunity of obtaining more favourable positions or advancement and is likely to leave the workforce prematurely.

Superannuation

1.   Past - the plaintiff makes a claim for loss of past superannuation contributions calculated at 11.5% of past net economic loss.

2.   Future - the plaintiff makes a claim for loss of future superannuation contributions calculated at 14.21% of net future economic loss.

ISSUES

67. A statement of issues was filed on the 20 November 2020. The statement of issues is extracted below:

STATEMENT OF ISSUES

1.   The facts and circumstances surrounding the plaintiff's fall on 2 July 2016.

2. Whether the defendant was in breach of any duty it owed to the plaintiff having regard, inter alia, to the provisions of sections 5B - 5F, 5H and 51 of the Civil Liability Act 2002.

3.   Whether any demonstrated breach of duty was causative of any loss and damage suffered by the plaintiff.

4. Whether the plaintiff was guilty of contributory negligence within the meaning of section 5R of the Civil Liability Act 2002 and, if so, what should the reduction of any damages be pursuant to section 5S of the Civil Liability Act 2002

5.   The nature and extent of the plaintiff's injuries.

6.   The quantification of the plaintiff's entitlement to damages (as claimed) including:

a.   assessment of the plaintiff's entitlement to non-economic loss;

b.   assessment of the plaintiff's entitlement to past out-of-pocket expenses and future medical expenses;

c.   assessment of the plaintiff's entitlement to past and future care;

d. assessment of the plaintiff's entitlement to damages for a loss of capacity to provide domestic services within the meaning of s 15B, Civil Liability Act 2002; assessment of the plaintiff's entitlement to past and future economic loss.

e.   assessment of the plaintiff's past and future equipment expenses

68. Some elaboration is required as to the first stated issue.

69. The plaintiff pleaded that her fall occurred when her foot “slipped off a stair tread” (see pleading 6 of the claim).

70. There are a number of mechanisms by which a person may slip on a step. Mr Dimopolous stated that the slip may occur, for example, where there is insufficient coefficient of friction. However, it was common ground in this matter that the issue raised by this pleading was whether the plaintiff had slipped because she had overstepped.

71. The defendant submitted that failed to make out her pleaded case in that respect (“the first contention”).

72. In short summary, the defendants first contention was as follows:

1. The plaintiff was required to prove that she fell as a result of her foot slipping off the stair tread on the balance of probabilities (it being accepted that an overstep and a slip are “different in that they are different parts of the same mechanism”).

2. The only direct evidence of how the plaintiff fell was from the plaintiff herself. When that evidence is properly understood, the plaintiff’s evidence is that she did not know why she fell. Further, even the evidence that the plaintiff did give as to knowing how she fell, does not establish she slipped off the stair tread.

3. In any event, in the plaintiff’s evidence she stated she did know why she fell, and the evidence should be given no weight, because she was an unreliable historian. The Court should find her unreliability infected a number of aspects of her evidence, including her pre-existing medical and psychiatric problems.

4. There were a number of medical records which recorded information regarding the circumstances of the accident should not attract any weight.

5. The plaintiff must rely, therefore, on proving that she slipped off the stair tread by persuading the Court to draw an inference to that effect.

6. Having regard to the evidence no such inference should be drawn. There are a number of other equally plausible reasons why the plaintiff fell, related to the condition of the stairs.

7. Accordingly, the Court should find the plaintiff has failed to establish on the balance of probabilities her pleaded case, namely, that she slipped off the stair tread.

73. I should deal with these contentions as the first issue discussed under the heading “Liability” below.

OVERVIEW OF NON-EXPERT EVIDENCE

The Plaintiff

Background

74. The plaintiff tendered the aforementioned evidentiary statements and was subject to cross examination at the hearing.

75. The plaintiff was born in Brisbane and lived with her natural mother until the age of 9 after which time she was placed into various care institutions. Whilst in care she was subject to physical and sexual abuse.

76. The plaintiff married her first husband, Robert Coulson, at the age of 15 and they had four children together. The plaintiff's first husband Robert died when the plaintiff was about 20 years of age.

77. The plaintiff completed her schooling in or about 1991. She met her husband, Joshua, in about 1994. Together they had five children, one of whom, Naomi, died soon after her birth in early 2001.

78. The plaintiff commenced study as an assistant in nursing at the age of about 21 years.

79. She worked intermittently in aged care between caring for her children. She later worked in disability services.

80. Between 2006 and 2008, the plaintiff conducted a home cleaning business, cleaning residential and commercial properties.

81. In 2009, the plaintiff commenced work as a disability care worker for the Disability Trust. She worked as a carer/respite support person in group homes around the Illawarra region, generally casually or part time work. Around that same time, she also worked as a casual callout nursing assistant with Starz Nursing Agency in the High Care Unit.

82. In approximately 2010, the plaintiff commenced work with the University of Wollongong in the Graduate School of Medicine as an Indigenous Community Engagement Officer. She ceased work at the university in August 2013.

83. In about 2014, the plaintiff established a day care centre at Albion Park, named Dreamtime Family Day Care Centre. The centre was approved for four children a day and was open 10-12 hours each day. That business closed on 7 January 2016, due to the plaintiff's ill health, having experienced nausea, headaches and anxiety. The plaintiff's pre-accident medical issues are dealt with in significantly more detail below, however around this time the plaintiff came under the care of Dr Carol Ting, endocrinologist.

84. She was looking at obtaining work in the childcare industry or as a disability support worker.

85. At that time the plaintiff resided with her Mr Pietrobelli, her daughter Josephine (then aged 20 years), son Anthony (then aged 18 years) and Bethany (then aged 15 years). Her other daughter, Karina, was no longer living at home. At the time of the incident the plaintiff was the principal carer for her family.

86. Up to the time of the incident the plaintiff was responsible for cleaning, vacuuming, cooking, washing, ironing, school transport, shopping and the like. Mr Pietrobelli worked long hours and provided only minimal assistance throughout the home. The children did provide some assistance.

87. In her evidentiary statement dated 8 May 2020, the plaintiff provided the following description of previous health conditions:

25. As stated at the time of the subject accident I was in good health but I had experienced some earlier problems including:

a. Whilst working with the University of Wollongong I was bullied and I suffered some anxiety which led me to cease that employment. I had counselling.

b. I had some turns which I describe as stroke-like symptoms when I was 18 and 35. I had a short stay in hospital on each occasion. I do not recall where I was living when I had my first incident but for the second incident I was treated at Wollongong Hospital.

c. I had treatment for what I believe to be problems with my pituitary gland in November/December 2015. I was suffering from severe headache and nausea which indeed led me to cease work in January 2016. I was referred to Dr Carol Ting, Endocrinologist. I underwent certain tests and was prescribed medication although medication ceased in about February 2016.

d. As a result of the headaches I was referred for an MRI scan of my brain. I underwent the MRI on 13 November 2015 and I understand the results were normal.

e. In late 2015 or early 2016 I had ultrasounds on my breasts which identified tumours. I underwent a biopsy and the tumours were found to be benign.

f. I experienced some depression following the death of my child Naomi. I also struggled when my daughter Karina left home when she was 16 years of age.

88. In her evidentiary statement of 13 October 2020, the plaintiff identified that she had accepted a position with Wollongong Hospital as a Senior Aboriginal Health Worker in palliative care. The job was 20 hours per week, and she commenced the position on the 7 October 2020 and was still in the position at the time of the hearing of this matter.

89. I will later discuss the pre-incident health, post incident injuries and various considerations concerning quantum later in this judgment. At this juncture, I will consider closely the plaintiff’s evidence as to the incident and various issues as to her credit raised by the defendant both in that respect and in relation to her case on damages.

The Fall

90. At approximately 4:00pm the plaintiff left the upstairs party room and commenced her descent of the stairs. Access to the party room was only via the stairs.

91. At paragraphs 29 and 30 of her evidentiary statement of 8 May 2020, the plaintiff stated:

29. We then went upstairs were there was party food and so on for the children. Access to the upstairs area was by way of a set of stairs which were of metal construction but covered in carpet. At about 4pm I left the upstairs party room and commenced my descent. The treads on the stairs were narrow. When I was going up the stairs I could put the toe of my foot in through the tread but going down I could not do that. As I descended I was holding the handrail. I paused. I turned my head and I said to the others

“Be careful. You can’t get your foot properly on the stairs.”

30. I went down another step or two (2) and I then fell. I couldn’t stop my fall. I remember going down and hitting my head. I landed amidst chairs, against the small makeshift wall at the bottom of the stairs.

(emphasis in original)

92. When asked about whether she had experienced dizziness prior to July 2016, the plaintiff responded that she was not dizzy at the time of the fall. That exchange is extracted below (T46.42):

Q. Before July 2016 when you had the fall down the staircase, you had suffered problems of dizziness and nausea, correct?

A. I wasn't dizzy when I fell, I wasn't dizzy any time near that period of time.

93. The plaintiff's evidence was that she was wearing flat summer sandals at the time of the incident (T179.11). She described the sandals as being "strapped around my ankle and strapped across my ... top of my foot" (T179.21). That is extracted below:

Q.  Do you remember what footwear you were wearing at the time?

A.  I had sandals on.  Flat sandals.  Flat summer sandals.

Q.  Did they have an open back so that they could as it were flap away from your foot at the back generally, or were they sort of tied to your foot so that they couldn't move?

A.  No, they're proper sandals, like proper tied to my foot.

Q.  Do they have a buckle, do you remember the sandals you were wearing at the time?

A.  I sort of remember, I had brown sandals, they were very flat shoes, they weren't high shoes, they were summer shoes and they were strapped around my ankle and strapped across my - across different places across my, what do you say, top of my foot.

94. As earlier mentioned, the plaintiff was the subject of cross examination at the hearing.

95. She stated, “there is more that I can remember but I can’t remember everything” (T169.1), it was however conceded that the purpose of her statement was to set out everything she thought was important (T169.3).

96. The plaintiff accepted that she did not have a “completely clear memory of what happened” when she was coming down the stairs. That is extracted below (T166.35):

CHESHIRE.  Before you fell down the stairs, what I'm suggesting to you is you don't remember anything particular that happened during that day, correct?

PLAINTIFF.  I remember what happened on the day.

CHESHIRE.  Do you?

PLAINTIFF.  Yes.

CHESHIRE.  What about as you were coming down the stairs, do you say that you have a clear memory of what happened?

PLAINTIFF.  No, not completely a clear memory of what happened.

97. It was then suggested to the plaintiff that she did not know why she fell. In response, she stated (T169.16):

I know why I fell, because my feet couldn't fit on the staircase.

98. When questioned further in relation to coming down the stairs and that the treads were narrow, she gave the following evidence (T169.36):

... I couldn't fit my foot on it, I had to actually turn my foot sideways and tell people behind me that the - it was narrow and you couldn't fit your feet. So that's just before I fell, so I know why I fell, because I couldn't fit my feet on the staircase. Even straight I couldn't fit my feet on the staircase. Because when you go up, your feet fit in the staircase is like that [indicating] that the foot went in beneath the nosing of the stair above on the way up] so when you go up it, your feet fit in properly, but when you go down, it hits the back of your ankle and it didn't fit my leg properly.

99. When questioned further about her evidentiary statement, the plaintiff gave the following evidence (T170.9):

Q. As I understand it, as you're coming down you say that the stairs are narrow, and so you said I think that you turned sideways, is that right?

A. When I spoke to them I put my foot sideways and turned my head to say to them to warn them about the stairs, how steep and how dangerous that my foot wouldn't fit on the stair.

Q. Where does that appear that you've turned your feet, where does that appear in your statement?

A. I didn't turn my feet, I turned my foot and my head just to go up there to speak to them above me.

Q. your answer then was I turned my foot and my head, did you turn your foot or not?

A. Yes, I did, because it didn't fit on the tread, because the tread, my foot was overhanging it.

Q. Where does that appear in your statement?

A. I don't know, sorry.

Q. It doesn't appear in your statement, does it?

A. Well, I'd have to read it again. Do you want an area that you want me to read?

Q. Yes. If you look at the top of page 38, the first - "When I was going up the stairs", if you read that to the end of the paragraph?

A. Yes. What - what, what are you asking me about it, sorry?

CHESHIRE.  Nowhere does it say that as - sorry.  Let me just ask you, you say that you turned your foot just to speak to your friends - to speak to others; is that right?

PLAINTIFF.  No, it wasn’t just to speak to others; it was because my foot couldn’t fit on the tread. So, I couldn’t keep my foot straight, or else I would have fallen.  It was overhanging the tread that much that if I had kept it straight, I would have fallen off.

CHESHIRE.  You say that you turned - as you then went to descend, you turned with your foot sideways; is that right?

PLAINTIFF.  When I went to descend?

CHESHIRE.  Yes?

PLAINTIFF. I wouldn’t know, sorry. I don't remember the descending as I - just before I fell. I don't remember that bit.

CHESHIRE. Right?

PLAINTIFF. All I remember is warning people, and the next minute, I had my hand on the hand rail, and I fell the whole - nearly the whole flight of stairs. I fell from the top. And there was broken chairs at the bottom and a makeshift wall which is what it says in there, and I hit that and the side of the brick wall that comes down this end that didn’t have the rail.

100. The plaintiff was asked whether she was sure that she was holding the handrail. In response she gave the following evidence (T172.11):

I was absolutely holding the handrail. There's no doubt in my mind that I was holding that handrail because when I fell, it sort of pulled because my weight - when you fall - it's a bit like a child when they roll down the hill, you keep going really fast. So, when I fell, I remember my hand pulling on the rail as I fell, and it hurt, and it - and I went. So, I couldn't just - the momentum - when you fall, it just takes your body.

101. When cross-examined about where on the stairs she fell, the plaintiff gave the following evidence (T172.38):

I was near the top of the stairs. This happened right nearly - at the top of the stairs. It was very close to the top of the stairs.

102. The plaintiff was cross examined further as to where it was on the staircase from which she fell. The following exchange took place (T180.21):

Q. What I'm suggesting to you is you turned to your friends - you've gone down a number of stairs, and then you turned to your friends, correct?

A. After that, I went to go down one or two more stairs, and that's when I fell.

Q. I'm suggesting to you that what this - that, in fact, what happened was you didn't go down any further steps. You were still on the same step, and it was as you turned back from your friends that you lost your balance and fell. Do you accept that?

A. No, that's not what happened.

And further at (T182.8)\:Q.  Incidentally, I think you gave evidence, as I understand it, you came down a number of stairs, and then you turned to your friends, and then you say that you went down another one or two stairs after that; is that right?

A.  Yes, it is.

Q.  So, as to the precise numbers of stairs that you've then gone down at the time you fell, you’re unable to assist, correct?

A.  I am able to assist because I was right near the top of the staircase.  So, I fell from the top of the staircase.  I know where I fell from because I actually nearly done a roll or a tumble as I went down.  So, I had the room to fall, try and grab on to a bannister on the other side that wasn’t there and fall, and there was definitely no light there.  That’s not what was there at the time at all.

Q.  Hang on.  I’ll ask you about the light in a moment, but in terms of from where you fell, as I understand it, you had come down a few stairs before you turned to your friends; is that right?

A.  I think so.

Q.  And then one or two more before you then fell, correct?  That’s what you say?

A.  Yes, I went down one or two stairs after I told them to be careful.  Yes, I did.

103. It was suggested to the plaintiff that it was not dark at the point where she fell. The plaintiff did not accept that proposition (T173.21). She also gave the following evidence (T173.04):

A. No, it was dark when I fell. That's why we were all being careful going down there in the first place, because it was dark.

Q. So, why, then, when you turn--

A. They had the - they had the gaming area all with lights on it on each thing they have there, and they have all the rest of the lights turned off, you know, like when you go bowling, and they light up the lights, and then it’s dark. That’s what it was like. They had the put-puts in front of the staircase, and it’s - all the little put-put holes are lit up, and everything else is dark.

After the Fall

104. It was submitted by Mr Hooke SC, with whom Mr Smith appeared for the plaintiff, that the plaintiff’s version of the circumstances of the incident is corroborated by the histories noted in the ambulance and hospital records. The defendant submitted, that the plaintiff’s evidence in relation to her health leading up to the incident was “unreliable” and that no “significant weight” should be placed on contemporaneous ambulance and hospital records. Those ambulance and hospital records will be discussed later in this judgment. For present purposes I will briefly consider the plaintiff’s evidence.

105. When the plaintiff was asked in cross-examination about the records the following exchange took place (T176.35):

Q. Mrs Pietrobelli, I am suggesting to you that what is recorded there, "Patient unsure how she fell", reflects your position after the accident, do you accept that?

A. No, I think it reflects what the nurse is writing.

Q. Likewise the suggestion that "right foot tripped and rolled and patient fell down stairs", that likewise reflects what the nurse is writing, correct?

A. Sorry?

Q. What is in the first line there, "right foot tripped and rolled and patient fell down stairs", do you see that?

A. Coming down, is that the narrow staircase?

Q. Yes, "right foot tripped and rolled"?

A. Tripped and rolled and I fell down the stairs. The nurse wrote that. I don't - I can't put it in exact detail. If you get me to think about the staircase and the way I fell, I can explain it, but the words she's using aren't mine.

Q. You don't describe yourself as having tripped, do you?

A. On the staircase?

Q. Yes? You didn't trip on anything, did you?

A. I fell. I fell hard.

Q. Yes, but it's different to, for instance, when you tripped on the furniture at home, the tripping over an object that gets in the way and you trip over it, but this wasn't a trip, was it?

A. No, it wasn't.

Q. Likewise rolled, there's nothing that you've described that was rolling, was it?

A. It's completely different, it's just ruined everything actually this fall, it's really, really hurt me and I've been in a lot of pain from it, and it's not anything like tripping on a piece of furniture at home.

Q. If you go back to 261, I think that's the same account, so let me take you to that, and then I'll take you to - at 261 do you see the first three lines of summary of care, do you see that?

A. It says, presents fall down the stairs and the third line's forward, is that it?

Q. Yes. So read those three lines?

A. Okay. Can I have a minute to do it please?

Q. Yes.

A. I can't even take in what it's saying, I'm sorry, but I just - can you read it out for me?

Q. It's saying:

"Today was at a party and coming down narrow staircase. Right foot tripped and rolled and patient fell down stairs. About ten stairs approximately two to 3 metres in height. Patient unsure how she fell, thinks landed on right side then slid forward until hit wall at bottom of stairs."

That I think is the same as the account I had just taken you to previously, do you recall that?

A. I don't recall that but I know that I was in hospital. I'm sorry, but.

Q. If you go to page 267--

A. One of my daughters might have been at the hospital having conversation with a nurse too, I don't know, is that in there? Maybe they were having that conversation.

106. The plaintiff submitted that the Court should accept the plaintiff’s evidence “as a witness of truth”. It was submitted that the plaintiff gave her evidence as best she could, albeit with some difficulties with her concentration and reading at various times due to her medication (T73.42, T135.21, T155.16). It was submitted that it might be expected that the plaintiff could not recall some events that were put to her from her medical records.

107. As mentioned, the defendant submitted that the plaintiff was an “unreliable historian” and that her evidence was unreliable, largely due to the discrepancies in the plaintiff recollection of medical reports. Reference was made to particular aspects of her evidence, namely, her pre-existing medical and psychiatric problems, post injury complaints and the circumstances of the incident and the cause of her fall. The defendant submitted that the stark example of the plaintiff’s unreliability was that the plaintiff maintained throughout her evidence that in five to six months leading up to the accident, she was well, which the defendant submitted was not the case..

108. Overall, I found the plaintiff was a witness of truth. My observation of the plaintiff was that she demonstrated a willingness to assist the Court and made appropriate concessions about her lack of ability to recall dates and the specificity of certain events. She occasionally became confused in certain parts of her evidence, such as when she asked for a hospital record to be read to her because she could not focus sufficiently to read, but those circumstances merely confirmed her frankness as to her limitations at various stages, which, I accept, was affected, by the strong medication she was under during the trial. I do not consider she was evasive, obfuscating, or being deceptive

109. In particular, I do not consider her statements as to a lack of recollection as to some aspects of her fall represent the plaintiff to be an unreliable witness but, as I will discuss, below the witness candidly distinguishing between that which she could recall, namely, observations of the steps at the point where she paused to communicate her impression of the state of the stairs to her friends and the subsequent step or steps she could not recall, at which point, she then fell.

110. The plaintiff’s credit in relation to medical records will be discussed later in this judgment. It is sufficient to note at this juncture that I accept that there were some deficiencies with the plaintiff’s recollection particularly as to medical records, but, does not warrant a conclusion that the plaintiff was an unreliable witness.

The Evidence of Mr Pietrobelli

111. As earlier mentioned, Mr Pietrobelli provided an evidentiary statement. Mr Pietrobelli was also the subject of cross examination at the hearing.

112. In summary, Mr Pietrobelli gave the following evidence in relation to the incident:

1. He went up and down the stairs on a number of occasions, to enable him to go outside to smoke cigarettes.

2. Mr Pietrobelli described the stairs and surrounding area in the following terms:

I had to be careful on the stairs because they were narrow and the lighting was very poor. The area was dimly lit. There was a light at the top of the stairs but it was not activated (not switched on).

3. Mr Pietrobelli did not witness the plaintiff's fall. He believes he was outside with Mr Laurent Douet having a cigarette at the time. Someone informed him that the plaintiff had had a fall. He then went inside and observed the plaintiff lying on the floor at the bottom of the stairs.

113. Mr Pietrobelli was cross examined at length about the lighting around the stairs.

114. He confirmed that the light above the stairs was not active. That is extracted below (T205.11):

Q.  And you say - did you notice at that time that there was a problem with the lighting, or do you not remember?

A.  I used the stair multiple times at some point, yeah.  I - it was evident it was not well lit.

Q.  When you say not well lit, it was dimly lit.  Is that your evidence?

A.  There was - yeah, it was dimly lit, yeah.

Q.  And you recall that there was a light, don’t you?

A.  There was ambient lighting.  The light for the staircase was there, but it wasn’t active.

Q.  And you say that light was turned off, do you?

A.  Well, it wasn’t - yeah, it wasn’t on.

Q.  And you noticed that, did you?

A.  Yeah.

115. He was questioned as to why the lack of lighting was not recorded in an incident report completed by Mr Jewell. Mr Pietrobelli confirmed that he had not written any of the document, although he conceded that he had signed it. He gave the following evidence (T207.03):

That - I didn't write any of that. I signed it, yeah, but I - and to be perfectly honest, when I signed it, I wasn't paying attention. I was in between trying to care for Narelle.

116. Mr Pietrobelli did not accept the proposition that he would have written in the incident report if he had thought that the stairs were unsafe because they were dark. That exchange is extracted below (T207.27):

Q. Right, and I want to suggest to you that if the stairs had been - did you - if the stairs had been - if you thought that the stairs were unsafe because they were dark, I want to suggest to you that you would have written that upon this form. Do you accept that?

A. No.

117. Notwithstanding the fact that the defendant called no direct evidence that the light in question was on, it was positively put to Mr Pietrobelli that the light was on, a proposition to which he disagreed (T208.14):

Q.  I suggest to you that the reason why you didn't tell Mr Jewel anything about the lighting was because you had not noticed whether the lights were on or off, do you accept that?

A.  That I didn't say anything because I hadn't noticed it?

Q.  Yes?

A.  No.

Q.  I suggest to you the light was on, do you accept that?

A.  No, I do not.

118. Overall, my observation was Mr Pietrobelli to be an honest and frank witness and ultimately a witness of credit.

The Evidence of Laurent Douet

119. Mr Douet's evidence in chief was to the effect that he had attended the premises on many occasions prior to the date of the incident, (he estimated on perhaps 12-15 separate occasions). On those occasions he had taken his children and had only ever attended birthday parties in the two party rooms that were located downstairs. He was unaware that there was a third party room upstairs.

120. Mr Douet's made enquiries with the defendant about booking a party room for his daughter, Caitlin's party. He was advised that the two downstairs party rooms were booked out but there was an upstairs party room that was available.

121. Mr Douet, his wife and daughter arrived at the premises around midday on 2 July 2016, to set up for the party.

122. In his Evidentiary Statement, Mr Douet described the party room as "not aired out and had a very stale and musty smell ... it looked and smelled like a storage room".

123. Mr Douet described the area generally as being "quite dull/ dark". His evidence was that there were no lights on the stairs and that the stairwell was "quite dark".

124. In relation to the stairs, Mr Douet's evidence in chief was as follows:

I found the subject stairs difficult to use, particularly going down the stairs. Going up the stairs I could slide my toe underneath the next tread, coming down the stairs was very awkward and only part of my foot was on the stair tread. I had to walk in a crab-like fashion to descend the stairs. By that I mean I was required to place my feet at an angle to secure my footing on each tread to descend the stairs.

125. Mr Douet did not witness the plaintiff's fall. He was outside with Mr Pietrobelli when they were informed that the plaintiff had fallen.

126. In cross examination, it was suggested to Mr Douet that his observation of the staircase being in dim was only in relation to where he found the plaintiff, at the bottom of the stairs. Mr Douet disagreed. He stated (T226.50):

No, they were dark because we used those staircases for the two hours we were there up and down them numerous times.

127. It was also positively put to Mr Douet that the light switch was already on (T227.20); a proposition that he rejected.

The Evidence of Rhiannon Douet

128. Ms Douet’s evidence in chief was that she was following the plaintiff as the plaintiff began descending the stairs. Ms Douet recalled that the plaintiff was holding onto the handrail and moving slowly down the stairs with her daughter Bethany. She could not recall precisely which step the plaintiff was on when the plaintiff fell, but stated that the plaintiff had gone down perhaps one third of the way and then fell to the bottom. Ms Douet did not recall the plaintiff saying anything before or during the fall.

129. Ms Douet expressed the view that the stairway was quite dark, and she did not recall that there was any light illuminating the pathway of the stairs. The premises generally looked dark.

130. Ms Douet observed that the stairs were of metal tread with carpet on them. She described the stairs as being awkward to walk down as they were narrow. In order to get down the stairs she stated that she had to turn her feet sideways at an angle so that they were fully on the tread. In doing this she was able to have enough footing on the tread to go down safely.

131. Ms Douet had been to the premises about three or four occasions prior to the incident. She had never been to the upstairs party room prior to day of the incident and did not know that it was used by the public. She believed that the upstairs area was a storage room.

132. In cross-examination, the following exchange took place (T231.01):

Q. Similarly, if I suggest to you that there was an artificial light at the top of the stairs that was switched on, your answer would be, I would not know, correct?

A. It was dark, so I would say no to at the top of the steps.

Q. You accept that there may have been light but it just wasn't very effective for where you were standing, correct?

A. All I can tell you is that it was dark.

The Evidence of Mark Jewell

133. I consider that the plaintiff’s analysis in written submissions as to Mr Jewell’s evidence to be both fair, accurate and appropriately fixed upon the inadequacies of his evidence. That analysis substantially underpins what follows. Overall, my observations of Mr Jewell and the following analysis results in a conclusion that he was an unsatisfactory witness.

134. Mr Jewell's evidence in chief was contained in his Evidentiary Statement and was subject to cross examination at the hearing.

135. Mr Jewell's evidence was that in the event of an incident or injury at the centre, an incident report would be completed by himself or staff working at the centre. A formal incident reporting form was not employed but rather a written note.

136. In relation to the lighting, his evidence was that there was a separate light fitting situated at the top of the relevant stairs, and that those lights were turned on if the upstairs party room was being used. There was a switch at the top and at the bottom of the stairs.

137. In relation to the events on the day of the incident, Mr Jewell was riding his bicycle when he received a call from an employee, Francene Dewes (“Ms Dewes”), who advised him of the plaintiff's fall. Mr Jewell then attended to the premises and spoke to Mr Pietrobelli. While Mr Jewell was talking to Mr Pietrobelli, Mr Jewell stated he observed the plaintiff walking out of the premises unassisted.

138. An ambulance was initially called but then cancelled. A second ambulance was then called again. Mr Jewell then made a handwritten incident report which was subsequently signed by both himself and Mr Pietrobelli.

139. In cross-examination Mr Jewell gave evidence that on a typical Saturday his wife and daughters would work at the premises, and they would send employees from the cake shop to help out. On the day of the incident, however, Mr Jewell's wife and daughters were not working.

140. When asked who was managing the premises on the day of the incident, Mr Jewell stated that it was one of the girls from the cake shop and that they would float the staff in between as required. He nominated an employee by the name of Frances or Francene, who no longer worked with them.

141. Mr Jewell also confirmed that he was not present at the time of the incident. He did not believe that he had been to the premises earlier that day but could not recall.

142. Mr Jewell confirmed that he was not present when the plaintiff left the premises, nor was he present when the second ambulance was called due to mobility issues.

143. Mr Jewell was then taken to the incident report (Court Book, volume 1, page 171) and it was put to him that he had altered the document after he had Mr Pietrobelli sign it. He ultimately agreed, and conceded that he had added material above Mr Pietrobelli's signature but not before, in my view, being evasive.

144. Mr Jewell also conceded that, if the plaintiff had been up walking unassisted towards the exit of the premises, as had been his evidence in chief, there would have been no reason for her to go back and sit down at the bottom of the stairs.

145. When questioned about the business’ record keeping in relation to incidents, Mr Jewell agreed that he was not heavily involved with the management of the business on a day-to-day basis and that his main focus was the cake shop.

146. In relation to the management and operation of the business, Mr Jewell gave the following evidence:

1. “It was like a self-run self it was only a very small, simple little business that was run very simply and sharing it between staff in the shop and that kind of thing."

2. "I probably organised the running of it and then handed to the staff to work there.”

3. The people who worked at the business worked there randomly from the cake shop.

4. “It didn't need to be run, it was simply a business that you learnt how to do it, and then you will just work there."

5. There was no written system of how things were to be done at the business.

6. " .. . there was no standard procedure book."

7. That it was a simple thing that any of his staff could go and do on a particular day.

8. That it could be done without any need for any instruction from Mr Jewell or anyone else because it was all self-evident - "it was a fairly simple business; yeah".

9. In relation to the lighting of the stairs, Mr Jewell agreed that the system that he had in place was to hope that the lights over the stairs had to be on if there was a party going on upstairs.

147. Mr Jewell agreed with the proposition that if the lights over the stairs were on it would not be a reasonable description that the area of the stairs was dark.

148. Mr Jewell estimated that at least about 50,000 had used the stairs whilst the defendant had leased the premises prior to the incident. He based that estimate on there being 10-15 parties per week at the venue and then assumed only five of those parties utilised the upstairs party room, with 15-20 children and an equal number of adults.

149. He referred to having checked a diary for the purpose of making that estimate. I agree with the submission of the plaintiff that his evidence in relation to the present whereabouts of that diary was evasive. He initially stated that a lot of the material that he had was damaged in a flood that had been through the venue (T255.01). It was then pointed out to him that at paragraph 25 of his own evidentiary statement the only flood that had occurred, occurred some time prior to the incident (page 96 of volume 1 of the Court Book).

150. He was then taken to a subpoena for production that was issued on the defendant in August 2020 which required production of various documents (the schedule of the subpoena can be found at page 4051 of the Court Book). He conceded that he had managed to find one diary (T257.20), but then stated he did not provide that diary to his solicitors as he did not find it at the time (T257.45).

151. Mr Jewell's Evidentiary Statement was completed on 11 June 2020, which contained his estimate of approximately 50,000 people using the stairs. The subpoena for production was issued in August 2020, approximately two months later. There is a tension between Mr Jewell estimate of 50,000 people on a diary that must have been in his possession at some stage leading up to June 2020 and that diary then not available to produce in compliance with the subpoena for production.

152. Similarly, no documents were produced by the defendant in response to the balance of the subpoena, which included various incident reports. This is so, notwithstanding Mr Jewell's own evidence that the defendant had a system in place to make handwritten notifications of any such incidents or injuries.

153. Mr Jewell ultimately, made the following concession :

Q.  In any event, is it your evidence that you are not able to locate any records that shed any light on the bookings as they may have been at any particular point in time?

A.  No.  Not anymore, no.

154. Mr Jewell was taken to the Development Application that had been submitted by the defendant in July 2009. He had no explanation as to why the intended usage plan that was lodged with his development application did not include a second floor (T261.38 to T263.19). It was put to Mr Jewell that he did not submit a plan for the upstairs as it was not part of the planned operation of the business that they would use the upstairs room as part of the business for hosting parties. He did not accept (T263.13) that proposition but it is open to infer because apart from the unreliability of his evidence. it is difficult to conceive of any other (legal) explanation for its omission from the Development Application.

155. Mr Jewell was then taken to the patron numbers permitted pursuant to the Development Application (page 154 of volume 1 of the Court Book), which limited the maximum number of patrons at the premises at any one time to not exceed 50 persons. Notwithstanding this fact, Mr Jewell was still not prepared to resile from his estimate of 50,000 patrons utilising the stairs (T267.13).

156. It was then suggested to Mr Jewell that on the day of the incident when the party hosts arrived for the upstairs party, all the tables and chairs in the party room were stacked in the corner. In response he said:

We didn't have a private - a larger private party, we had to store the tables and chairs somewhere.

157. Mr Jewell conceded that a stale, musty, unventilated room with no furniture set up but rather furniture stacked and stored in the corner was not the picture of a party room:

Q.  A stale, musty, unventilated room with no furniture set up but rather furniture stacked and stored in the corner is not the picture of a party room, is it?

A.  No.

158. Mr Jewell agreed that if a party room had been booked and the people arrived on time for the party and that it was not set up, the defendant's system, such as it was, had failed (T269.09).

159. Mr Jewell also eventually conceded that, if the lights over the stairs were not on when party guests arrived to go to the upstairs room, that the defendant's system in relation to the lighting, such as it was, had failed (T270.15).

160. The defendant submitted, that even if the stairs were not used 50,000 times, and there was an absence of records and deficiencies Mr Jewell’s evidence this could not prove the opposite, namely, those circumstances could not prove that nobody had ever gone up the stairs. All that the plaintiff can do is limit the 50,000 to the point where it is clear that for approximately 10 years, there had been no previous problems or issues and that must go into, if nothing else, the probability that the harm would occur if care were not taken. However, in the absence of Mr Jewell’s evidence there is an absence of evidence of continuous and substantial use of the party room and evidence to suggest the contrary, namely, a low usage.

161. The plaintiff submitted that the ad hoc nature of Mr Jewell’s record keeping, the absence of evidence of previous falls on those stairs goes nowhere. I will return to this issue, but I consider there is considerable force in this submission.

162. In my view, Mr Jewell’s evidence should not be accepted unless corroborated by other evidence.

JONES v DUNKELL

163. The plaintiff submitted there was no explanation given by the defendant for its failure to call Ms Dewes, or any other staff members working on the premises on the day of the incident, and the plaintiff therefore invited the Court to draw a Jones vDunkel inference (of the kind in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) that the uncalled evidence would not have assisted the defendant.

164. The defendant submitted that there was no cross examination to properly establish the matters necessary for the Court to draw a Jones v Dunkel inference, despite what was submitted by the plaintiff. It was submitted that the difficulty with the plaintiff’s submission, as a matter of law, was twofold:

1. It is not enough, to show that Ms Dewes was an employee of the defendant. The plaintiff would need to establish that the defendant still had some involvement with the employee, namely, that she was still employed by the defendant.

2. The defendant was not asked whether Ms Dewes was still employed by the defendant; they were never asked.

165. It was ultimately submitted that, there was simply no scope for a Jones v Dunkel inference and, even if there was, it does not go anywhere because there is no evidence of any problems, difficulties, falls, knowledge of risks and Jones v Dunkel does not permit the Court to conclude that the evidence would have been that there were previous falls or that there were previous incidents or knowledge of unsafeness. Mr Jewell gave evidence that there were staff employed in the cake shop, who were running the business on the day of the plaintiff's incident. Those employees were responsible for all aspects of the operation of the enterprise, including management, and the implementation of the alleged system of turning on the lights above the stairs which the plaintiff fell. Presumably, they were also responsible for setting up the upstairs party room. Their identity was within the knowledge of the defendant, and, in particular, Mr Jewell.

166. In my view those witnesses, and in particular, Ms Dewes plainly could have given evidence of the extent of the use of the upstairs party room, the setting up of it, the status of the lights above the stairs, and whether they were switched on at the time of the incident. They may also have been able to give evidence in relation to other incidents involving the stairs although that much is clear.

167. I agree with the submissions of the plaintiff that it was for the defendant to explain their absence. If Mr Jewell's record keeping was so haphazard that he could not identify them, he could have said so but, in any event, it was clear Ms Dewes was working on the day of the incident. It is true that Ms Dewes was no longer an employee of the defendant. However, if that had been on bad terms, or she could not be located, that evidence could and should have been given.

168. Otherwise, Ms Dewes and other potential employees or former employees of the defendant were witnesses clearly within the defendant's camp, and who could clearly have given evidence upon significant matters in issue. The defendant chose not to call them, and has offered no evidence as to why: see Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at 576 [15]-[16].

169. The fact that Mr Jewell was called, but not asked anything in chief, or in re-examination, about the matter suggests that there is no explanation available that would displace the Jones v Dunkel inference: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G.

EXPERT REPORTS

170. As earlier identified, there were a number of expert reports tendered to the Court in the form of both individual and joint reports.

171. I will consider both individual reports and the joint reports in turn below, noting again that the individual reports produced by the experts were tendered as background to the criticisms contained in the joint reports but were ultimately superseded in effect by the joint reports.

Individual Reports

Primary Report of John Dimopoulos

172. Mr Dimopoulos attended the premises on 15 December 2016, to undertake a view of the premises and to take various measurements and photographs. He was accompanied by the plaintiff at the inspection.

173. Mr Dimopoulos graduated from Swinburne University in 1990, with a Bachelor’s Degree in Mechanical Engineering, with Honours, and completed courses in failure analysis and Occupational Health and Safety.

174. Mr Dimopoulos is a professional consulting engineer and is qualified to give expert opinions on the functioning of machines and structures, including the actions and effects of forces and movements. He is also qualified to give expert opinions in matters to do with kinematics and dynamics. He has experience in investigations of slips and falls involving stairways and steps, in the context of litigated personal injuries claims and has also been a contributing member of Australian Standards Committee DB/96- Slip resistance of flooring surfaces.

175. Mr Dimopoulos prepared his report on a set of assumed facts which included the following:

1. As to the plaintiff, Mr Dimopoulos stated:

4.2 … [The plaintiff] is 5’8” (173cm) tall and she weighed about 118 kg at the relevant time. She told me that she has (and had) good vision, and that she did not need to wear glasses.

4.3 Prior to suffering the injuries discussed in this claim, she believes herself to have been in good health, enjoying full and pain-free mobility in her back.

4.4 [The plaintiff] told me that in the hours immediately before the incident, she had not consumed alcohol, medication or drugs that might otherwise have affected her gait, judgement, balance or perception. She had not been prone to fainting spells.

(2)  The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions.

660. As the defendant did not contradict the plaintiff, I have no occasion to decide. The appropriate amount of superannuation shall be approved will respect to the above mentioned findings of past economic loss.

Future Economic Loss

661. As noted above, the plaintiff commenced work with NSW Health for three days per week. She claims that but for her injuries and disabilities she could work full time and claims the loss of $400 per week until age 70.

662. Section 13 of the Act states:

13   Future economic loss—claimant’s prospects and adjustments

(1)  A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)  When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3)  If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

663. As noted above, some experts favoured the view that the plaintiff could recover and return to full-time work. To avoid repetition, I summarise, at a high-level view, the various expert opinions as follows. Dr Harvey-Sutton noted that the plaintiff could graduate to four days per week and then to five days per week in the near future. Dr Buckley believed that the plaintiff was unemployable on the open unemployment market unless her psychiatric treatment is successful. However, Dr Martin believed that the plaintiff’s reduction in capacity to perform pre-accident employment duties reflects physical impairment as opposed to psychiatric morbidity. Associate Prof Phillips believed that the plaintiff’s capacity to undertake future work will be affected by persistent depressive disorder and a somatic symptom disorder but was optimistic that she could return to some form of useful employment in the future.

664. As Associate Prof Phillips noted, that the plaintiff appeared to be highly motivated to return to the workforce. The plaintiff has been able to successfully return to the workforce in part-time work for three days per week. I accept the evidence of Associate Prof Phillips:

I think she had difficulties coping and I think her difficulties in coping reasonably can be sheeted back to her terrible childhood, and – but I think in the circumstances, and I’m talking from years and years of psychiatric practice, in the circumstance she has tried extremely hard to get above these symptoms. I don’t move away from the symptoms, I accept them, and they are symptoms which have been serious enough to disrupt parts of her life, but as a trier this woman is a real hero.

665. I am satisfied that the combination of both the physical and psychological injuries sustained by the plaintiff would make her only be able to take on employment for three days per week for the rest of her life. It is clear that, despite her best efforts, the plaintiff will experience the very difficult treatment for chronic conversion disorder (as explained by Dr Walker), high levels of pain in performing functional tasks (as explained by Ms Scott and Ms Zeman), impact of medication that affects her vision and level of alertness (as explained by Ms Zeman) and the ongoing impact of the physical injuries to her leg and spine.

666. I am satisfied, consistent with the view of Associate Prof Phillips, that the plaintiff will have great difficulty working in highly stressful roles or jobs that require extensive physical movement. I have considered the prospect that her conditions will improve over time with more treatment. Although I consider the impact of her psychological injuries would diminish, I am not satisfied from the evidence of Dr Martin or Associate Prof Phillips that they would disappear. Rather, it is more likely that it would not dissipate and would continue to affect her life although perhaps at a lesser degree. I am not satisfied that she is likely to graduate to four-days or full-time work in the future, especially as the impact of her physical injuries will continue.

667. Had the injury not occurred, I assess her likelihood of obtaining full-time work as very likely and at 80%. I would adjust the award of damages here accordingly. This is because, by this time, I am satisfied that her recovery would have made strong progress given the pre-accident trajectory.

668. As discussed above, I also reduce the amount by 15% to account for the plaintiff’s pre-existing psychological injuries.

669. Superannuation should also be paid at the appropriate percentage provided in s 15C of the Act.

670. In conclusion, I note that no allowance has been made for a buffer. The plaintiff’s claim in that respect was in two parts. As to the first part I have essentially adopted the proposal by senior counsel for the plaintiff which was expressed thus:

It may be that in this case your Honour chooses to proceed simply by way of a buffer, but if your Honour did, it would be a very large buffer.  The Court of Appeal said that in an appropriate case, it's open to a trial judge to approach even a large award of damages for loss of earning capacity on that basis.  If your Honour chose to do that, it would be open.  However, we would submit that your Honour would take a somewhat more nuanced approach to it and look to the matters that we've addressed in writing and endeavour to reach a periodic assessment of how the earning capacity has been impacted.

671. As to the second part, the plaintiff claimed a “buffer on top of that” to recognise that applicant may not be able to continue in work. I have not applied such a buffer, having regard to my findings as to the plaintiff’s present capacity for work and the expert’s opinion as to the likely continuance of that work even to the point of approaching full-time work.

Past Domestic Assistance

672. In relation to hospital-based care, the Ms Zeman and Ms Scott agreed that members of the plaintiff’s family kindly provided her with support. I consider that the hospital-based care provided by the plaintiff’s family, except when they brought in personal items from home and personal support, are the kind of services that can be provided by hospital staff. However, as Ms Scott alluded, hospitals do have limited staffing and are not always being able to provide timely assistance but the provision such services in this case is quite unclear. I accept the defendant’s submissions as to the initial review.

673. Previously, it has been said that visits by a person to a hospitalised relative are compensable if the visits are reasonably necessary to meet the plaintiffs physical and/or emotional needs: Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54. However, in Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260 (“Wormleaton”), it was conceded by the plaintiff that no such services were recoverable during the plaintiff's hospitalisation, having regard to the decision in Nicholson v Nicholson (1994) 35 NSWLR 308 (“Nicholson”) at [322]. In Nicholson, the Court of Appeal affirmed the trial judge's decision which had held that the plaintiff's sister in providing comfort to the plaintiff whilst he was in hospital was not providing "services" within the meaning of s 72, Motor Accidents Act and was therefore not compensable. In Wormleaton, the defendants also challenged a claim for emotional support relying on CSR Limited v Eddy; 226 CLR 1; [2005] HCA 64, a case concerning the common law rather than the statutory modifications of the Griffiths v Kerkemeyer principle. Campbell J said:

[132]   In Eddy the majority (Gleeson CJ, Gummow and Heydon JJ), admittedly in overruling the decision in Sullivan v Gordon (1999) 47 NSWLR 319, accepted an argument ‘Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others’ (Emphasis added). I accept that emotional support is not a ‘service’ that one is capable of rendering to oneself. I appreciate that the definition of attendant care services in s 15 extends to ‘services that aim to alleviate the consequences of an injury’ but it is difficult categorise the provision of emotional support, as the provision of such a service.

[133]   The reasoning of the occupational therapists expressed in their report related to Mr Wormleaton ‘psychological decompensation’; the emotional support of one hour per day was directed to the maintenance of his psychological state.

[134]   People are social being beings and most of us appreciate the company of family, friends and colleagues. But the benefits we derive from that society is not a service provided by those others to us. Nor can we, as I have said, provide that support to ourselves."

674. As was submitted for the defendant, on the basis of the plaintiff’s husband’s evidence that whilst she was in hospital, the plaintiff required assistance with cleaning herself after going to the bathroom and showering (T197:14-19), the Court was satisfied that the “care” provided to the plaintiff was not for emotional support, no allowance for this period should be made.

675. For period 2, I agree with the views of Ms Scott and Ms Zeman that the plaintiff reasonably required 19.34 hours per week over the 30 weeks. This is composed of meal preparation and kitchen maintenance (10.5 hours per week); domestic duties (3 hours per week); shopping (1 hour per week); laundry (2.25 hours per week); bedroom maintenance (0.13 hours per week) and transport (2 hours per week). Ms Scott would also additionally allow monthly lawn mowing (0.25 hours per week); weekly rubbish removal (0.08 hours per week) and car cleaning every six weeks (0.13 hours per week).

676. For periods 3 and 4, I also agree with the views of Ms Scott and Ms Zeman that the plaintiff has had an ongoing requirement for care provided gratuitously on a reasonable and necessary basis for domestic assistance (3 hours per week); laundry (2.25 hours per week); bedroom maintenance (0.13 hours per week); and shopping (1 hour per week). I now turn to address the points in contention.

677. In relation to the need for assistance for transport, I prefer the view of Ms Scott over Ms Zeman. It is evident from the oral evidence given in the proceedings that the plaintiff has been labouring under serious side effects of medication and has had ongoing pain from the day of the accident to the day of the hearing and likely beyond. In the report from the conclave, Ms Zeman did not allude to these difficulties. Whilst I accept Ms Zeman’s evidence that the plaintiff has been able to manage fatigue and does not need to use her right foot, the evidence demonstrates that she suffers from ongoing side effects and pain that make driving a more onerous task. This is consistent with the reports of the plaintiff to Ms Scott that she only drove short distances, relied on weekly transport assistance from family members and that she required rest breaks on long journeys due to widespread pain. Even with the medical clearance to drive and the modifications to her vehicle, I am satisfied that the plaintiff was in need on transport assistance in periods 3 and 4, and will need some assistance in the future (albeit to a lesser extent given her recovery).

678. In relation to assistance for meal preparation and kitchen maintenance in period 3, both Ms Scott and Ms Zeman agree that there had been an improvement in the plaintiff’s ability to prepare meals during this stage, especially when she adopts seated positioning. Ms Scott noted that she was able to prepare her own breakfast, lunch and snacks but this was with the ongoing assistance due to the plaintiff’s ongoing pain and limited functional mobility. She had difficulty with aspects of meal preparation that required high and low reach, carrying heavy items such as pots and pans and prolonged periods of standing. Therefore, I am satisfied that, whilst the plaintiff’s ability to prepare meals increased progressively, the evidence of both experts was that she required ongoing assistance to perform cooking tasks and thus 7.5 hours per week of assistance is appropriate.

679. In relation to assistance for meal preparation and kitchen maintenance in period 4, I prefer the view that the plaintiff required 5 hours per week of assistance. It is evident by the fact that the plaintiff resumed full-time work that she had made some recovery. It is clear from Ms Zeman’s evidence that the range of functions that the plaintiff could independently perform have increased. I am satisfied that from the evidence that the plaintiff self-reported to Ms Zeman, that she has commenced bulk preparation of meals and freezing them for later use, when combined with her ability to reach into various parts of the kitchen including low drawers, the dishwasher and to access utensils, would likely mean that she could independently prepare and access simple meals. However, I balance this evidence with the fact that the plaintiff still required assistance from family members, especially for evening meal preparation, where she needs to be seated. I am satisfied that 5 hours per week of assistance for meal preparation and kitchen cleaning is appropriate for period 4.

680. In relation to incidental assistance with dispensing of medication following her discharge from hospital, I prefer the view of Ms Scott given she had observed the plaintiff’s difficulty and the need for family assistance. However, I agree with Ms Zeman that the need for this assistance likely became unnecessary when the plaintiff could resume driving and perform employment-related activities. For these reasons, I assess 1.17 hours per week of incidental assistance for periods 2 and 3 only.

681. The above care was provided predominantly by members of the plaintiff’s family at no cost to the plaintiff and are thus “gratuitous attendant care services” as defined in s 15(1) of the Act. I am satisfied, under s 15(2) of that Act, that there was a reasonable need for the services to be provided; the need arose solely because of the injury to which the damages relate; and the services would not have been provided to the claimant but for the injury. This was made clear by the evidence of Mr Petrobelli and Ms Karina Petrobelli (as quoted earlier) about the plaintiff’s ability to perform household tasks before the injury.

682. I am satisfied, under s 15(3) of that Act, that the gratuitous attendant care services unless the services were provided for at least 6 hours per week and for a period of at least 6 consecutive months.

683. Accordingly, the amount should be calculated according to ss 15(4)-(5) of the Act.

Future Domestic Assistance

684. Both Ms Zeman and Ms Scott agree that the plaintiff has a reasonable requirement for future care arising from her injuries. Consistent with the views of Ms Zeman and Ms Scott, I am satisfied that it is reasonable, having regard to the period of time and existing rehabilitation efforts, that the plaintiff will require future care indefinitely in the future.

685. Having regard to the very detailed and helpful reports of Ms Zeman and Ms Scott, I believe it is reasonable for there to be assistance for meal preparation (2.5 hours per week), internal residential maintenance (2 hours per week), heavy internal residential maintenance (2 hours per week), laundry (2 hours per week), bedroom maintenance (0.13 hours per week), lawn and garden maintenance (0.75 hours per week) and transport (1.5 hours per week).

686. Ms Scott and Ms Zeman agreed at the NDIS gazetted rates of $50.20 per hour for house cleaning and household activities and $49.30 per hour for house and yard maintenance. These are also the rates sought by the plaintiff. However, it appears to me that at least some of the services, including meal preparation, have been provided by members of the plaintiff’s family to date and will continue in the future. Of course, there is the possibility, given the age of the plaintiff’s children, that they may, over time, move out of home and no longer provide services to the plaintiff. It falls on the plaintiff to establish that there is a need for commercial care and that gratuitous care was not available: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [21]. The willingness and ability of others is a relevant consideration: Miller v Galderisi [2009] NSWCA 353 (“Galderisi “) at [21]. The plaintiff has not met its evidential onus of satisfying the Court that commercial services would be required. It can be assumed that the plaintiff’s children may, given the plaintiff’s health, be more willing to provide assistance and services, even if they move out of home. For these reasons, this amount should be calculated at the rate for gratuitous attendant care services according to ss 15(4)-(5) of the Act. For completeness, I am satisfied of the requirements in ss 15(2)-(3) of that Act to award damages of this nature.

Non-economic Loss

687. As found earlier in this judgment, the incident had a major negative impact on the plaintiff including on her family, personal relationships, ability to work, ability to carry out pre-accident domestic tasks and recreational activities and created the need for ongoing treatment. I am satisfied, on the balance of probabilities, that the plaintiff will have to live with the impact of the injuries for the remainder of her natural life. As the experts noted, her prognosis was poor although she had some recovery and been able to work part-time, albeit with varying degrees of difficulty.

688. The defendant submitted that the plaintiff overstated the effect and extent of her post-accident injuries and downplayed the effect of the pre-existing and continuing headaches (at [146] and [149]). For the reasons stated above, I do not accept the defendant’s submission in that respect. In particular, I refer to my findings as to the plaintiff’s credit and her suffering headaches.

689. The plaintiff submitted that an appropriate award of damages for non-economic loss would be 50% of the most extreme case. The defendant submitted that the appropriate award of damages for non-economic loss, having regard to the exaggeration of pain, capacity to travel for vacations, ability to drive to work and pre-existing psychological issues, would be 25%. I have also found that there were some pre-existing issues but not to the degree asserted by the defendant. My rejection of the submission partly reflected in the above reasons.

690. In the above circumstances, and having regard, in particular, to the plaintiff’s recovery to date and her ability to work and perform some domestic duties, I am of the view that the appropriate assessment of non-economic loss in relation to the effect of the incident is 35% of the most extreme case. Pursuant to s 16(3) of the Act, the damages for non-economic loss, as a proportion of the maximum amount that may be awarded for non-economic loss (see Civil Liability (Non-economic Loss) Order 2010), is 35%.

Care of Others

691. The plaintiff claimed that she was entitled to damages for her loss of capacity to provide domestic services to others pursuant to section 15B of the Act.

692. The plaintiff premised this argument upon medical evidence in relation to Bethany. It was correctly submitted that Bethany suffered a number of serious medical conditions including autistic spectrum disorder, epilepsy, global development delay, generalised anxiety disorder and oppositional defiance disorder. It was submitted that Bethany required day-to-day care, supervision and support in her activities of daily life.

691. The plaintiff contended that Bethany had received care from a commercial carer which was funded through NDIS, but that the support was no longer received by Bethany because of difficult experiences that Bethany had with support workers in the past.

692. The plaintiff made a very substantial claim in this respect, predicated upon a need for seven and a half hours a week for care in conformity with Ms Scott’s opinion. On that basis, total past domestic care was calculated at $55,369 and future care was calculated at the gratuitous rate of $33.31 per hour by 931.7 giving a total of $232,762. Accordingly, the total claim for past and future care under section 15B was $288,131.

693. The provisions of section 15B have been the subject of recent discussion in Piatti v ACN 000 246 542 Pty Ltd [2020] NSWCA 368. At [42] – [46] of the judgment of McCallum JA (with whom Simpson AJA agreed); the following description of the provision was provided:

42. It may be noted that, in each case (that is for both existing dependants and unborn children), the time at which the definition must be met is at the time the liability in respect of which the claim is made arises.

43. The substantive enactment is subs (2), which provides:

(2)    When damages may be awarded

Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that-

(a)    in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in subsection (1)--the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b)    the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c)    there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants--

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

(d)    there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

44. The logic of the section is to provide that damages may be awarded for “any” loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied of four conditions. There is nothing in the language or structure of the section to suggest that, if the court is satisfied as to those four conditions, there is any upper limit on the damages that may be awarded. On the contrary, the section allows an award of damages for “any loss of capacity”. The word “any” must be allowed to do its work.

45. In accordance with ordinary principles of assessment of damages, the loss of capacity would be assessed by the court at the time of judgment and would extend to both past and future loss as at that time. There is nothing in the language of the section to suggest that this particular head of damages was intended to be frozen at an earlier point in time. With respect, the respondents’ submissions on this issue confuse conditions of recovery with the notion of a cap on the quantum of damages that may be recovered. Again, the word “any” in the opening words of subs (2) militates against the respondents’ construction.

46. The four conditions as to which the court must be satisfied may be seen to serve two primary purposes: to exclude opportunistic claims and to impose something in the nature of a threshold of seriousness before damages may be awarded. However, to reiterate, there is nothing in the statutory text to suggest the existence of an upper limit or cap on the amount that may be awarded in cases where the four conditions are met.

696. Further, at [54] – [56] McCallum JA provided the history of the provision.

54. There is no aspect of the legislative context that alters that analysis. It is well understood that s 15B was introduced in response to the decision of the High Court in CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64. Before that decision, it was understood that loss of the capacity to provide gratuitous care to dependants could be compensated under the common law as a head of special damages in accordance with the decision of this Court in Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338. That decision and all decisions supporting it as a principle of Australian common law were overruled in CSR Limited v Eddy at [68] (Gleeson CJ, Gummow and Heydon JJ) and [122] (Callinan J). The High Court held that the lost capacity of an injured plaintiff to assist his or her family was compensable but only as part of general damages, not as special damages to be calculated by reference to the market cost of replacing the services: at [16] and [61]-[67] (Gleeson CJ, Gummow and Heydon JJ; [114]-[115] (McHugh J); [122] (Callinan J).

55. In so holding, the plurality remarked at [67] that the conferral of the rights recognised in Sullivan v Gordon on plaintiffs was properly a matter for the legislature. The legislature’s response was s 15B.

56. That legislative context was considered by Simpson AJA in Amaca Pty Ltd v Raines [2018] NSWCA 216. Her Honour said at [146] (Meagher JA agreeing at [1]):

“It is true that the reinstatement of Sullivan v Gordon damages was intended only to be ‘partial’. The limitation stated by the Parliamentary Secretary was ‘to ensure that those damages are available only in cases of greatest need’. That limitation is effected by par (c), requiring proof of the expectation that the services would be provided for at least 6 hours per week and for a period of 6 consecutive months, and by par (d), requiring that the need be reasonable in all of the circumstances.”

697. I will below discuss the principles in Gordon. In my view they are also applicable to the determination of this part of the claim.

698. In my view, there are two three bases upon which this aspect of the claim must fail, as follows:

1. There is an absence of expert evidence precisely dealing with the impact of Bethany’s medical condition upon what she is able to do and the precise nature of the assistance she will require on an ongoing basis. I note, in that respect, that an issue as to the admission of part of the report of Dr Mutti Khan had been held over for determination as referred to in MFI 6. The defendant objected to that part of Dr Khan’s report of 21 August 2019 which states “the care arrangement will continue.” I accept the defendant’s submission that the Doctor is not qualified to comment upon the issues associated with Bethany’s medical condition on an ongoing basis and that the opinion is vague. Whilst the report may be admitted as a business record, it cannot be admitted to prove what requirements exist for Bethany medically on an ongoing basis. I reject the tender.

2. I accept the submission by the defendant that the Court should accept the opinion of Ms Zeman who makes no allowance for the care of others. Specifically, Ms Zeman noted that the care for Bethany will substantially involve supervision and prompting which is not outside the plaintiff’s functional capacity and that the plaintiff had maintained the capacity to be able to support her daughters needs.

3. I also agree with the submission of the defendant that the balance of the expert opinions was that this head of loss is only relevant if and insofar as NDIS funding ceases. The plaintiff submitted that there is evidence that the NDIS has ceased or is no longer available. This was based upon a carer that had left and showed no indication of returning. It was submitted there is a mechanism to payment for agencies but that did not benefit the family because there had been a poor connection between Bethany and providers and therefore NDIS support only goes “so far.” However, the evidence revealed that NDIS funding has not ceased and that it had provided for past carers. The plaintiff’s evidence discussed the problem with carers and the prospect of her providing the care even though she is reluctant to do so. However, the plaintiff also indicated that obtaining a carer might be something she had to do and will depend upon what is happening in the house and whether it will help Bethany. The plaintiff also indicated that any carer obtained would preferably be there for “the long haul” and that any carer would be funded by NDIS on that basis.

Other Matters

699. The defendant submitted that I should have regard to the fact that one of the plaintiff’s daughters currently receives a carers allowance for looking after the plaintiff (T91:35-36).

700. The Court of Appeal stated in Gordon at [130] (referring to Galderisi) that “to award damages to enable the plaintiff to pay for assistance at commercial rates, which his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle”. The Court of Appeal also stated (at [131]) that, even if the pension was received before the plaintiff’s injury and had nothing to do with the plaintiff’s injury, this was not a basis that the carer will continue to render the services gratuitously once the plaintiff has funds.

701. In Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799 (“Campton v Centennial Newstan”) at [773], Hall J deducted the carer’s pension from the plaintiff’s award for past personal care in accordance with the principles in Gordon.

702. I will respectfully apply the approach in Gordon and Campton v Centennial Newstan. If the allowance was paid because of the plaintiff’s injury, the support of the allowance means that at least some of the services were not rendered gratuitously and were being paid for, although not by the plaintiff. I agree that the amount of the carers allowance should be deducted in accordance with the principles stated in Gordon and Campton v Centennial Newstan. It is unclear on the evidence presently before me the precise amount of the allowance and duration of which it has been paid. This much will be addressed in the orders made below for full disposition of this matter.

CONCLUSION

703. In all the circumstances, there should be judgment for the plaintiff. I will make orders to that effect.

704. I conclude that the defendant is liable for injuries, loss or damage occasioned to the plaintiff arising out of the incident. I have found that there should be no deduction for contributory negligence.

705. Further, I have determined the damages should be awarded to the plaintiff in accordance with the detailed findings as to damages contained in the section of my judgment dealing with that topic.

706. The plaintiff shall be required to bring in Short Minutes of Order reflecting the judgment of the Court. The question of interest and costs will be reserved.

ORDERS

707. For these reasons, I make the following orders:

1. Judgment for the plaintiff.

2. The plaintiff shall file and serve Short Minutes of Order reflecting this judgment within 14 days of the delivery of the judgment. If the parties are unable to agree on the Short Minutes of Order, they shall each file submissions, limited to five pages, on the issues in contention with my Associate by email within a further 14 days. If an oral hearing is sought, in addition to their written submissions, they may approach my Associate to schedule such a hearing.

3. Costs and interest are reserved.

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Amendments

08 June 2022 - Typographical amendment at [641]

Addition of heading and following four paragraphs from [687]

Decision last updated: 08 June 2022