Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre

[2020] NSWDC 264

District Court

New South Wales

Medium Neutral Citation:

Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [2020] NSWDC 264

Hearing dates:

3, 4, 5, 6 February and 6 March 2020

Date of orders:

04 June 2020

Decision date:

04 June 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against the defendant in the amount of $551,097.62;

 

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

 

3. The exhibits may be returned;

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

Catchwords:

TORTS – negligence – occupier’s liability – plaintiff incurred L4/5 disc lesion whilst clearing an exercise space in a gymnasium where heavy weights had been left on the floor – finding of negligence – rejection of defences of waiver and contributory negligence; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Australian Consumer Law (Cwth), s 60, s 64
Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5N, s 5R, s 5S, s 13, s 16
Evidence Act 1995 (NSW), s 60
Uniform Civil Procedure Rules 2005, Sch 7, cl (3)(e), r 31.27(1)(c)
Work Health and Safety Act 2011(NSW)
Work Health and Safety Regulations (2017) (NSW)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Belna Pty Ltd v Irwin [2009] NSWCA 46
Browne v Dunn (1893) 6 R 67
Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Causer v Browne [1952] VLR 1
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Fallas v Mourlas (2006) 65 NWSLR 418; [2006] NSWCA 32
Goode v Angland [2017] NSWCA 311
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; [1985] HCA 37
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253
Penrith City Council v Parks [2004] NSWCA 201
Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1; [2015] NSWCA 90
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42
South Western Sydney Local Health District v Gould [2018] NSWCA 69
State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53

Category:

Principal judgment

Parties:

Jacqueline Powell (Plaintiff)
JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness Centre (Defendant)

Representation:

Counsel:
Mr J Ryan (Plaintiff)
Mr N Polin SC (Defendant)

  Solicitors:
Bielby Poulden Costello (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2019/16004

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2] – [5]
Issues for determination	[6]
Evidence overview	[7] – [8]
Credibility and reliability of testimony	[9] – [54]
Surveillance film of plaintiff’s activities	[10] – [12]
The plaintiff	[13] – [22]
Mr Alexander Avis	[23]
Ms Raelene Matthews	[24] – [26]
Ms Caitlin Abela	[27] – [30]
Mr Scott Waterhouse	[31] – [40]
Reliability of documentary evidence	[41] – [54]
Fact findings	[55] – [117]
Plaintiff’s background circumstances	[56] – [66]
Plaintiff’s pre-accident health	[67]
Accident circumstances	[68] – [77]
Injuries	[78] – [79]
Initial treatment	[80]
Subsequent medical treatment and allied reviews	[81]
Findings on differing medical opinions	[82] – [84]
Disabilities that evolved	[85] – [102]
Work effects	[103] – [108]
Domestic effects	[109]
Mitigation	[110]
Plaintiff’s most probable circumstances but for her injury	[111] – [117]
Issue 1 – Risk of harm	[118] – [124]
Issue 2 – Defence of waiver	[125] – [156]
Issue 3 – Duty of care, scope and content	[157] – [164]
Issue 4 – Breach of duty of care	[165] – [189]
Legislation	[167] – [168]
Section 5B(1) of the CL Act – consideration	[169] – [179]
Section 5B(2) of the CL Act – consideration	[180] – [184]
Section 5C of the CL Act – consideration	[185] – [188]
Conclusion on breach of duty of care	[189]
Issue 5 – Causation of harm	[190] – [198]
Issue 6 – Contributory negligence	[199] – [210]
Issue 7 – Assessment of damages	[211] – [248]
Non-economic loss	[212] – [216]
Past economic loss	[217] – [219]
Future economic loss	[220] – [225]
Past domestic assistance	[226] – [228]
Future domestic assistance	[229] – [237]
Future treatment expenses	[238] – [246]
Past out-of-pocket expenses	[247]
Summary of damages assessment	[248]
Disposition	[249]
Costs	[250]
Orders	[251]

Nature of case

1. The plaintiff, Ms Jacqueline Powell, now aged 46 years, claims personal injury damages on account of the alleged negligence of the defendant, JFIT Holdings Pty Ltd, trading as New Dimensions Health and Fitness Centre. The defendant is the proprietor and occupier of gymnasium premises at 32 Leonay Parade, Leonay, NSW. The plaintiff was a member of the defendant’s gymnasium where she sustained injury as a result of claimed hazardous conditions which prevailed at those premises. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”) and the Australian Consumer Law (Cwth).

Factual background

2. On or about the late afternoon of Thursday 4 February 2016, when the plaintiff was aged 42 years, she sustained a lower back injury that involved an L4/5 lumbar disc prolapse whilst she was at the defendant’s gymnasium. That injury occurred whilst she was undertaking a bending, twisting and lifting movement to relocate a 25kg disc weight that had been left, amongst other weights, in an awkward position on the floor of the weights area of the gymnasium. The plaintiff had picked up that weight and was intending to stack it on a rack provided for that purpose. At the time, the plaintiff needed to clear a floor space in that area to enable her to carry out her exercise regime.

3. Contrary to the terms of members’ use of the gymnasium, other gymnasium users had earlier that day left the exercise area of the floor of the premises in a cluttered, messy and therefore un-usable state. This was due to the presence of a number of heavy circular weight plates or discs that had been left strewn and scattered on the floor by previous users earlier that day, in circumstances where the defendant’s staff had not taken any action to clear that area for use by members.

4. In order to clear and tidy an adequate floor space for her exercise routine the plaintiff found it necessary to lift, manipulate, clear away, and then rack a number of weight plates and related weight bars because gymnasium staff had not cleared them away or stacked them. In those events she experienced what she described as an immense pain in her lower back whilst lifting the 25kg disc weight from the floor in a twisting or rotation movement. She found this had been required in order to position that weight for correct stacking onto a nearby weight rack designated for that purpose.

5. The plaintiff claims her injury was caused by the negligence of the defendant. The defendant denies that it was in any way negligent. The defendant also seeks to rely upon a claimed defence of contractual waiver, a matter contested by the plaintiff. In the alternative, the defendant also asserts that there was contributory negligence on the plaintiff’s part, an assertion denied by the plaintiff.

Issues for determination

6. My review of the pleadings, the evidence and the submissions of the parties, indicates that after first identifying my findings on matters concerning the credibility and the reliability of testimony, and then identifying my findings on relevant factual matters, the remaining issues calling for determination in these proceedings may conveniently be identified as follows:

1. The identification of the relevant risk of harm within the meaning of s 5B of the CL Act;

2. Whether, having regard to relevant provisions of the Australian Consumer Law, the defendant has made good its claimed defence of waiver of responsibility based on the provisions of s 5N of the CL Act;

3. Identification of the duty of care owed by the defendant, and the content of that duty;

4. Whether the plaintiff has made good her claim that the defendant had breached its duty of care;

5. Whether, within the meaning of s 5D of the CL Act, the plaintiff has proven that the defendant relevantly caused the plaintiff’s injury and her claimed damages;

6. Whether the defendant has made good its claim that there was contributory negligence on the plaintiff’s part;

7. The assessment of the plaintiff’s entitlement to damages for non-economic loss, past economic loss, future economic loss, past domestic assistance, future domestic assistance, future treatment expenses, and past out-of-pocket expenses.

Evidence overview

7. In the plaintiff’s case, oral evidence was given by the plaintiff, her son Mr Alexander Avis and Ms Raelene Matthews, both of whom were familiar with the defendant’s gymnasium. In the defendant’s case, oral evidence was given by Ms Caitlin Abela, a receptionist who had been employed by the defendant, and Mr Scott Waterhouse, a contract personal trainer who was also familiar with the defendant’s gymnasium premises.

8. The plaintiff’s exhibits were tendered in the series Exhibits “A” to “C”. The defendant’s exhibits were tendered in the series Exhibits “1” to “6”. Those documents will be referred to in these reasons where it becomes relevant to do so.

Credibility and reliability of testimony

9. In the paragraphs that follow I set out my conclusions on matters concerning first, the defendant’s surveillance footage of some of the plaintiff’s activities, and then my conclusions on the credibility and reliability of the testimony of the respective witnesses who gave oral evidence.

Surveillance film of plaintiff’s activities

10. The defendant obtained and tendered surveillance film that showed some aspects of the plaintiff’s activities. That surveillance footage was obtained through a series of observations that had been conducted over the course of three separate days by private investigators engaged by the defendant. The resultant surveillance footage comprised a series of relatively short segments that had been joined together into an aggregate of 66 minutes. This was the product of 20 hours of attempted surveillance of the plaintiff’s activities.

11. In my view, none of that surveillance evidence, or the documentary summary of it that was prepared by the investigators, provided a reasonable basis for materially contradicting the plaintiff’s evidence. The position might possibly have been different if the film had been the subject of a relevant medical commentary.

12. Absent such a commentary, I have concluded that the images of the plaintiff in that surveillance footage did not materially contradict the plaintiff’s evidence of her claimed disabilities and the related limitations that those disabilities have caused her. Viewed in the context of the plaintiff’s oral evidence, the occasional movements of the plaintiff, as seen in that footage, as seized upon by the defendant, were, in my view, of benign significance.

The plaintiff

13. The plaintiff was an impressive witness. I considered her to be a truthful and generally reliable witness who recounted her evidence in a matter-of-fact manner within the limits of her recollections, without embellishment. She made fair concessions where it was appropriate for her to do so. In light of the unchallenged and uncontradicted content of the medical evidence, it is apparent that her evidence on damages issues was considerably understated.

14. In arriving at that conclusion, I have not accepted the defendant’s submission that the surveillance footage “clearly showed that [the plaintiff] had exaggerated the extent of her injury and disabilities in her evidence”.

15. It is difficult to see how the defendant could fairly maintain that submission where its own expert evidence from Dr Scott Harbison, a consultant orthopaedic surgeon, stated that on his identified objective findings, the plaintiff not only did not appear to be exaggerating her symptoms or exhibit any abnormal illness behaviour, but on his examination, he considered that no inconsistencies were identified in her presentation: Exhibit “C”, pp 102, 105 and 107. That view was consistent with that of the plaintiff’s treating pain specialist, who noted there was no significant pain catastrophisation in the plaintiff’s presentation: Exhibit “C”, p 80.

16. In my view, the defendant’s rolled up submission alleging exaggeration was also problematic because it conflated the fact of the plaintiff’s injury with her consequential residual disabilities. It was plain that the plaintiff had not exaggerated the extent of her injury, as was confirmed by the uncontested medical assessments and by the uncontested surgical findings.

17. The defendant’s surveillance footage showed relatively brief glimpses of some of the plaintiff’s activities. Some of the footage showed her holding her lower back for support whilst standing for a prolonged period in a supermarket: T147.27 – T147.38; T179.5 – T179.20. The apparent weights of the items of shopping that the plaintiff was seen to be carrying, as shown in that footage, did not seem to be particularly heavy to the point of causing her obvious discomfort during those isolated instances of activity. I did not consider that the content of that footage materially contradicted her evidence or reasonably permitted adverse inferences to be drawn against her evidence.

18. A difficulty faced by the defendant in seeking to sustain the submission claiming the plaintiff has exaggerated the extent of her injuries and disabilities is that such a proposition was never squarely put to the plaintiff in order to provide her the procedurally fair opportunity to comment upon it at the time she was cross-examined by senior counsel for the defendant: Browne v Dunn (1893) 6 R 67. No medical evidence was called to support that submission made on behalf of the defendant.

19. Furthermore, in making that submission, which was in general terms, senior counsel for the defendant did not identify, with any degree of particularity, which aspects of the plaintiff’s evidence had allegedly been impugned by the defendant’s surveillance material.

20. In my view, the absence of such critical particularity is a matter of some importance given that the plaintiff’s evidence on those matters was not otherwise improbable, where she also fairly acknowledged that not only had there been some improvement in her levels of pain over time (T70.29), but that she also has some days where her pain levels were manageable, and she is able to “sort of function”: T70.43; T74.32.

21. The limited challenge the defendant made to the plaintiff’s evidence, to the effect that she was quite capable of “from time to time” doing all of the domestic tasks needed to look after herself every day, a proposition with which she disagreed (T123.29 – T123.35; T147.11 – T147.16), was vague and did not justify the submission that the plaintiff had exaggerated, as it lacked sufficient particularity to satisfy the requirements of fairness: Browne v Dunn (1893) 6 R 67.

22. I have accepted the plaintiff’s evidence in its entirety as I considered it credible in its terms, reliable on its face, and not otherwise materially contradicted.

Mr Alexander Avis

23. Mr Avis is the plaintiff’s second son. He has served in the Army and he is presently a serving police officer. I considered him to be an impressive and truthful witness who recounted his evidence without embellishment. He took care to confine his evidence to matters within his direct knowledge and observations, as would be expected of someone in his profession. The defendant made no criticisms of his evidence.

Ms Raelene Matthews

24. Ms Matthews was called as a witness in the plaintiff’s case. Notwithstanding the defendant’s submission to the effect that she had given exaggerated evidence, I considered that she was an impressive witness whose evidence was reliable.

25. Ms Matthews was a former member of the defendant’s gymnasium and one of the plaintiff’s former personal trainers at the gymnasium. I considered her to be a truthful witness who recounted her evidence without embellishment. She made appropriate concessions in cross-examination when they were due and she identified the limits of her recollection of relevant events.

26. The defendant sought to attack the credit of Ms Matthews with an assertion that “bad blood” existed between herself and the gymnasium staff: T208.4. It was in effect put to her that her evidence that assisted the plaintiff’s case was based on such alleged ill-feelings on her part. Ms Matthews rejected that attack in a dignified and reasoned factual manner. I reject the attack that the defendant sought to make as to her credit. That attack was not made good by any supporting evidence.

Ms Caitlin Abela

27. On the day of the plaintiff’s injury Ms Abela was employed in a junior position as a receptionist at the defendant’s gymnasium. She is now a horticulturist. She was aged 17 years at the time of the events. Her list of duties as a receptionist was extensive, but primarily centred around membership, marketing and customer relations: Exhibit “4”; T222.7 – T222.16; T226.46 – T227.8. Ms Abela was called as a witness in the case for the defendant. The defendant submitted Ms Abela was a straightforward and reliable witness whose evidence should be accepted.

28. I considered that Ms Abela was a truthful and reliable witness who did her best to recount her knowledge on matters upon which she was asked questions. She was at times hesitant when giving her evidence, and she took time to consider her answers. This appeared to be on account of the fact that she ceased her employment with the defendant some years ago, and it appears that she did not have access to the defendant’s records that may have otherwise assisted her to refresh her memory with regard to the factual content of her evidence: T221.5 – T221.20.

29. Ms Abela gave candid evidence about her work duties. She stated that she had never been instructed to check the weights room in the defendant’s gymnasium on an hourly basis and she had never regarded that task to be part of her role: T230.23 – T230.28; T231.49. This was apparently because she had so many other allocated tasks to do: T232.4; T232.42 – T232.45.

30. Ms Abela agreed that a lot of the time, whilst she was at the reception desk, she would not know what was going on in the weights area of the gymnasium, and she acknowledged that after “tradies” hour in the gymnasium, in the afternoon on weekdays, weights were often left on the floor as a common occurrence: T231.28 – T231.45. She also agreed that of a weekday afternoon, at around 5.30pm, the floor of the weights area was often littered with weights, plates and bar bells that were left there by people who should have known better: T233.19.

Mr Scott Waterhouse

31. Mr Waterhouse was formerly one of the plaintiff’s personal trainers at the defendant’s gymnasium. He gave his evidence in a very confident manner: T263.3 – T263.27. Despite his claim of having a good memory of his former clientele, their exercise programs and their physical abilities, and by inference, relevant events and circumstances, his evidence contained many general statements as to what would have probably occurred, or what normally would have occurred, rather than giving factual evidence based on an actual recollection.

32. Much of Mr Waterhouse’s evidence was plainly based on hypothetical considerations as to what he considered would have been the case, or what probably would have occurred in normal circumstances. That impression was drawn to the attention of senior counsel for the defendant at early point in the evidence-in-chief of Mr Waterhouse: T242.35. Mr Waterhouse’s evidence nevertheless proceeded to be framed in what was acknowledged as being hypothetical terms: T243.16.

31. Initially, I considered the possibility that Mr Waterhouse had simply used expressions such as would have, or probably, or normally, or guess, as a manner of speech. However, on considering his evidence as a whole, I considered that it had limited probative value on contested matters of fact because of its hypothetical foundations.

32. There are literally scores of examples in the transcript where Mr Waterhouse’s evidence was framed in hypothetical terms. Those examples are too numerous to cross-reference in these reasons.

33. Mr Waterhouse had variously been an employee of the defendant and he had also worked as a contractor personal trainer in the defendant’s gymnasium. He said that he had “probably” trained the plaintiff in 2012, 2013 and “possibly up from 2015 to late 2016”: T245.20. I considered that latter date range as nominated by him to be unlikely in view of the date of the plaintiff’s injury and subsequent treatment.

34. The focus of Mr Waterhouse’s training of the plaintiff had been for strength and resistance training with weight-based programs. Despite his evidence to the contrary (at T251.35), I took his descriptions of the plaintiff’s training as being general descriptions, rather than being accurate fact-based descriptions: T251.30.

35. In describing the various types of weight exercises that Mr Waterhouse said the plaintiff was accustomed to undertaking, he agreed that the use of weights had to be carefully undertaken in an ergonomic way in order to avoid injury: T253.42; T263.45 – T264.15; T275.46.

36. Mr Waterhouse agreed that the act of leaving weight plates on the floor of the gymnasium could result in the creation of a hazard: T267.17. Whilst he said that the gymnasium was “pretty tidy most of the time” (T271.47), that was not always the case.

37. My overall view of the limited extent of the factual detail within the evidence of Mr Waterhouse on matters within his direct knowledge, was that nothing he said in his evidence materially contradicted the evidence of the plaintiff.

38. For the above reasons, I do not accept the defendant’s submission that Mr Waterhouse was a straightforward and reliable witness whose evidence should be accepted.

Reliability of documentary evidence

41. The defendant made no submissions of significance in relation to tendered documents. The analysis that now follows relates to Exhibit “4”, the plaintiff’s expert’s report, and the records kept by the defendant relating to attendances at the gymnasium.

Exhibit “4” – “Weekday Daily Tasks”

42. The defendant tendered a document that set out the tasks that employed receptionists at its gymnasium were expected to carry out on 4 February 2016: Exhibit “4”. On that day, two receptionists were rostered on duty at the gymnasium.

43. On the day in question, a receptionist named Sarah was rostered to work on the first shift of the day from 7.00am to 2.00pm. Amongst her listed duties was the task of putting “All weights away hourly”. Sarah was present at Court but she was not called to give evidence: T276.35.

44. The second receptionist, Caitlin Abela, was rostered to work the afternoon to evening shift from 2.00pm to 8.30pm on that day. Her duties were to put “All weights away”, that is, not just on an hourly basis and not at designated times. Plainly, this was because the afternoon shift at the gymnasium was busier, with more frequent usage of equipment by members after normal working hours.

45. The plaintiff submitted, correctly in my view, that Exhibit “4” was an important document to take into account in determining liability questions in this case. The provenance and the terms of that document were not disputed.

46. That document has significance from several analytical perspectives. First, the duties that the defendant required of each of its employed receptionists were materially different when the duties for the morning and afternoon shifts were compared. Secondly, Ms Abela’s shift was by far the busiest part of the day. Thirdly, the document must be considered in light of Ms Abela’s uncontradicted evidence that although weights were quite often left on the floor by gymnasium patrons, she was not required, as was Sarah, to check the floor for weights hourly, and because she said it was not part of her role to remove the weights from the floor after 5.30pm. T275.48.

47. Other documentary evidence tendered in the proceedings requires evaluative comment, as follows:

Plaintiff’s expert report

48. The plaintiff relied upon a report comprising expert opinion evidence from Mr Ken Armanasco, an expert in physical education, sport, fitness, weight training, trampolining, gymnastics and sports injuries: Exhibit “C”, pp 1 – 38.

49. Initially, the defendant objected to the plaintiff tendering the expert report of Mr Armanasco: T2.10. Ultimately, the defendant took the position that the report should be given little weight: T180.1, and following.

50. Mr Armanasco’s degrees, qualifications, training and experience, including on matters of safety, risk management systems for small, medium and large sized organisations across a wide range of physical sporting activities, as set out at pages 3 to 4 of his report, and in his curriculum vitae appearing between pages 29 to 38 of his report, plainly indicate that he was suitably qualified to provide expert opinions on matters of gymnasium safety and risk, as has been raised in this case.

51. Mr Armanasco had inspected the defendant’s gymnasium premises on 15 September 2019. At that time, he found the configuration of the gymnasium to be standard for a facility of its type, and that it was well maintained and fit for purpose with sufficient floor space available for safe movement and use of the equipment. He also found the floor area around the weights area to be free from slip, trip and fall hazards, and that there were appropriate systems in place for managing free weights, plates and bar bells, along with adequate lighting. I infer those systems were in place at the time of the plaintiff’s injury. Whether or not those systems were duly engaged and implemented is a question to be determined.

52. Mr Armanasco was asked by the solicitor for the plaintiff to address a number of key questions. The effect of those questions, and his answers, were as follows:

1. The applicable industry standards and guidelines for fitness facilities of the type operated by the defendant was largely according to self-regulation, and remained subject to State-based work health and safety legislation, which relevant to this case, he identified as being the Work Health and Safety Act 2011 (NSW), and Work Health and Safety Regulation (2017) (NSW);

2. The appropriate number of staff that should be present at a fitness centre of the type operated by the defendant, including supervisory staff and contractors or instructors such as personal trainers, is not the subject of defined guidelines, and much would depend upon the layout, the configuration, the anticipated movements by clientele, the complexity of the equipment, the risk environment, and “housekeeping requirements”, which included putting away equipment. With particular reference to the defendant’s establishment, and having regard to duty of care issues, he anticipated that a minimum of two staff should be there at all times, with a preference for three persons at times of high volume use: Exhibit “C”, pp 11 – 13;

3. A reasonable system of supervision in a fitness centre of the type operated by the defendant would have had to take into account the conditions of each centre, but it ought to have included a developed system that involved a risk assessment that took into account operational hazards likely to arise at the facility, a roster of supervisory duties relative to use patterns, and the communication of housekeeping requirements to the membership, including as to returning weights equipment to storage after use. He also identified the need for a supervisory checklist for staff and staff training on housekeeping requirements and signage to house rules: Exhibit “C”, pp 13 – 15;

4. On the assumption that the plaintiff found that she was required to move what was obviously heavy equipment from the floor in order to carry out her training programme, in circumstances where weights and related equipment were regularly left on the floor and not returned to storage, he expressed the opinion that it was reasonable for the defendant to implement a system for monitoring and addressing this issue, the key elements of which required staff to regularly monitor and enforce housekeeping standards on the gymnasium floor. He observed that the list of duties contained in Exhibit “4” did not include a requirement that reception staff maintain housekeeping standards regarding the gymnasium floor. In making that observation, he highlighted the difference in the listed tasks as between the receptionist’s tasks as they applied to the morning and the afternoon and evening shifts, which potentially permitted a build-up of weights equipment on the floor of the gymnasium, which is what occurred in this case: Exhibit “C”, pp 15 – 17;

5. On the question of what reasonable steps, if any, the defendant could have taken to avoid injury to the plaintiff, he identified the need for good housekeeping practices to be developed by adequately trained supervisory staff rostered on duty in adequate numbers, with particular accountability for the state of the gymnasium floor. He highlighted the need to enforce the requirement that users put away weights and equipment after use, as identified in the defendant’s displayed signage, and to regularly monitor for compliance of this, particularly, in periods of high use: Exhibit “C”, pp 17 – 18.

53. Mr Armanasco’s opinions remained unchallenged and uncontradicted by any expert of like qualifications. He was not required for cross-examination. I have concluded that his expressed views were in accordance with common sense and they could be relied upon and accepted.

Defendant’s electronic attendance records

54. The defendant’s gymnasium had a facility for electronic access by the use of swipe cards at the door. The defendant’s access system also permitted ad hoc manual recording of a member’s entry onto the premises if recorded by reception staff on entry. However, staff members were not always located at the reception area because they had other multiple duties. The access entry door was at times left open for members to obtain access. At those times, access and egress was not necessarily recorded by staff members. This was also the case with personal trainers when entering the premises: T268.8. As a result, I considered that the defendant’s records, of the plaintiff’s various attendances to be unreliable as an indicator of whether or not the plaintiff either was or was not on the premises on any particular day.

Fact findings

55. In the paragraphs that now follow, unless otherwise qualified, my findings of fact are set out on the following topics concerning: (1) the plaintiff’s background circumstances; (2) the plaintiff’s pre-accident health history; (3) the accident circumstances; (4) the plaintiff’s injuries; (5) the initial treatment; (6) subsequent medical and allied reviews; (7) findings on matters of difference of opinion in the medical evidence; (8) the disabilities that remain; (9) the work effects of her injuries; (10) the domestic effects of her injuries; (11) mitigation of damages; and (12) the plaintiff’s most likely circumstances that would have prevailed but for her injuries.

Plaintiff’s background circumstances

56. The plaintiff is presently employed in a senior administrative capacity at a private denominational school with a payroll of 113 persons, which she administers. She holds the position of director of business services for that school. She is a single mother with three adult sons aged 28, 26 and 23 years.

57. The plaintiff holds impressive professional qualifications in a range of endeavours. Those qualifications were obtained before her injury. Whilst studying for those qualifications, she had pursued other employment positions as well.

58. The plaintiff has been working for her present employer since 1997, having started as a casual office assistant and moved up to more senior administrative roles as she proceeded to acquire qualifications, starting with a secretarial course.

59. In 2004-2005 the plaintiff completed a Diploma of Accounting course at TAFE. This enabled her to commence employment as an administrative assistant with her present employer. In 2006-2008 she completed a Certificate IV course in Business Management and Front-line Management. In 2010-2011 she completed a Diploma of Management. In 2016-2017, she completed her Masters degree in Business Administration.

60. The plaintiff’s early background circumstances were significantly disadvantageous to her. When those circumstances are viewed prospectively, at face value, it seemed unlikely that she would be able to attain the educational, employment and family achievements that she has in fact achieved.

61. In the plaintiff’s earlier years, with some considerable determination and resourcefulness, she applied herself to successfully overcome many difficulties and obstacles that had the potential to hinder her advancement in life.

62. She is the youngest of six children of a family who lived in difficult circumstances of poverty that also involved alarming risk to her personal safety and wellbeing. Her father left the family when she was very young. As a single parent, her mother struggled to bring up her family in circumstances of depressing poverty, disadvantage, and disturbing exposure to violence.

63. The plaintiff left school in Year 10 with the School Certificate. On leaving school she did not work for some time. In those early years she had partnered with a man who took steps to ensure that as a couple they moved about frequently. This was because he was anxious to avoid any contact that might result in him being re-imprisoned. In that time she had two children. That relationship was marked by episodes of extreme domestic violence. She and her two children left that relationship with the professional assistance of police and medical practitioners. She and her children spent some time in a refuge. She initially relied upon government allowances for support.

64. The plaintiff later re-partnered and in that relationship, in 1997, she had her third son. That relationship ended some time ago.

65. Through the plaintiff’s own efforts, she has successfully brought up her three sons who are now adults. They have gone on to lead impressive lives, notwithstanding the difficulties that prevailed during their early upbringing. In that time, as is evident from her qualifications, with considerable application and resourcefulness, she also managed to successfully pursue part-time studies for self-advancement.

66. In addition to the plaintiff’s current employment, her various past employment positions have included: employment officer assisting physically and mentally disabled adolescents in obtaining employment; payroll support and human resources, and a human relations consultant; as well as working in administration and financial duties for a not-for-profit charity, mainly in a part-time voluntary capacity, but also deriving about $10,000 per annum for formal paid work for that organisation. The plaintiff’s taxable income for the 2018/2019 financial year was $218,867: Exhibit “C”, p 130.

Plaintiff’s pre-accident health

67. The plaintiff had been in relatively good health prior to her injury. Apart from needing surgery in 2010 for an unrelated issue that has been successfully treated without any lasting adverse consequences (T27.6), she has had no significant pre-accident adverse health issues.

Accident circumstances

68. The plaintiff joined the defendant’s gymnasium in 2012 for the purpose of maintaining her personal fitness. In 2013 she began competitive running as a sport. Although of petite build, she was quite strong. In 2015, she sought personal training assistance which led to a training programme being devised for her. She continued to pursue that programme until the time of her injury.

69. On the afternoon in question, which is believed to be 4 February 2016, although not confirmed by either the defendant’s electronic or manually maintained access records, the plaintiff attended the defendant’s gymnasium intending to carry out exercises with weights that were part of a training schedule that her personal trainer had developed for her.

70. On her arrival at the weights area of the premises she found that she was confronted with a large quantity of gym equipment that had been left strewn untidily on the floor by previous patrons. Those circumstances were in plain contravention of the terms of membership of the gymnasium which required that it was the responsibility of users of equipment to put the equipment away after use, as indicated by the terms of the following sign:

[Exhibit “C”, p 16]

71. At that time of the afternoon, which was known as “tradies” hour, none of the defendant’s rostered staff had taken any action to either clear or stack away the equipment left on the floor by previous patrons. A clear area of floor space was necessary in order for the plaintiff to safely pursue her exercise regime. This was not available to her as there were at least two weight bars and at least six disc weights or plates, including at least one that weighed 25kg, that had been left strewn on the floor in a state of disarray, thus precluding the intended use of that area.

72. At the time, the defendant did not have a rostered supervisory presence in that area. Therefore, in order to make use of the area, the plaintiff started to clear away and stack the weights obstructing the floor area. In order to use the weights area in those circumstances, the plaintiff had to lift and stow the weights by lifting them onto a storage rack or weights tree provided for that purpose.

73. When necessary, the activity of clearing weights was normally undertaken by the plaintiff’s trainer when the trainer was present. The defendant did not suggest to the plaintiff that the activity of lifting 25kg weight plates from the floor onto a weight tree was part of the plaintiff’s usual fitness training regimen, either when training with a personal trainer, or when training alone.

74. Mr Waterhouse, the defendant’s witness, conceded that if stray weights were left on the floor in the manner described above, this was a circumstance that had the potential to cause injury to other gymnasium users. The fact that weights were at times left strewn on the floor was known to the defendant’s employees, as referred to at paragraph [30] above.

75. The plaintiff acknowledged that she had previously handled similar weights in her exercise regime: T95.40. On the day in question, she successfully cleared away five plates without a problem before approaching the sixth and heaviest such plate: T96.14. It is clear from the plaintiff’s explanation that the mechanics of putting those plates away involved different actions compared to the constituent parts of her usual exercise programme, contrary to what the defendant sought to suggest.

76. As the plaintiff proceeded to bend down to pick up the sixth plate, a 25kg weight plate that was located in an awkward position on the floor, she undertook a load-bearing lift and lateral twisting or rotation movement so that she could move and position that weight onto its designated rack which was located about 1 metre away: T104.26. In the course of that manoeuvre, she felt what she described as an immense and intense pain in her lower back as she performed that twisting movement: T48.25 – T49.15. At that time she sustained the subject injury.

77. The unchallenged and uncontradicted expert neurosurgical evidence was that typically, a damaging disc injury will occur with a weight bearing twisting injury of the kind described by the plaintiff, where the circumferential capsule fibres around the disc are pinched. That evidence indicates that it may thereafter take some time for the tear to extend sufficiently to cause disc material to extrude, and following this, it is not uncommon for a recurrence to later occur: Exhibit “C”, pp 98 – 99. I find that process occurred in the present case.

Injuries

78. Initially, the plaintiff believed that she incurred a painful strain to her lower back. Therefore, she took a stoic and patient attitude to that injury in the hope that it would resolve over time. In that regard, she therefore adjusted and modified her physical activities to a less arduous form to allow for anticipated healing to occur. As a consequence, she did not immediately seek medical treatment for her injury.

79. However, over the ensuing weeks the plaintiff came to realise that her injury had been of a greater extent to that which she had initially thought. This was brought home to her after non-arduous jogging following a fun-run. As her back condition did not improve she sought out medical advice. This later led to referrals and tests that ultimately revealed her injury to involve an L4/5 disc protrusion, which later required multiple surgical treatments.

Initial treatment

80. There is no suggestion that the initial delay in the plaintiff seeking professional treatment for her back pain has in any way contributed to her need for surgical treatment. She has had four episodes of major spinal surgery and some lesser rhizolysis procedures, some of which involved radiofrequency procedures. She has assiduously pursued post-surgical rehabilitation on each occasion she had surgery.

Subsequent medical treatment and allied reviews

81. The chronology of the plaintiff’s post-injury relevant medical attendances and treatment is as follows:

Initial medical advice

1. On 13 April 2016, the plaintiff consulted Dr David Samra, a practitioner in sports and exercise medicine, He recorded a 6 – 8 week history of low back pain originating with the injury the subject of the present claim. He noted that x-rays which had been obtained had not revealed any significant bony injury but that narrowing of the L4/5 and L5/S1 disc spaces was seen on those x-rays. He suggested the plaintiff undertake a programme of modified exercise and rest, and that a lumbar MRI scan be considered at a later stage, if required: Exhibit “C”, pp 90 – 91;

Increased pain following jogging

2. On 27 June 2016, the plaintiff attended the emergency department at Nepean Hospital with the present symptoms of back pain and left leg pain since February that year. The history recorded in the notes is that she had been “deadlifting 60kg”. I accept the plaintiff’s evidence that the reference to 60kg is incorrect. The other history recorded was that the pain was initially treated with physiotherapy and it settled but it recurred after a recent 25km trail run resulting in a dull constant shooting ache with left-sided pain, and pain in the left hip, left thigh, lateral calf and lateral left foot in the L4, L5, S1 dermatomes. Symptoms of numbness and tingling in the left lateral leg and toes was also recorded, not relieved by rest or movement. The plaintiff also complained that her left leg felt weak because of the pain: Exhibit “5”;

3. On 28 June 2016, at the request of her general practitioner, the plaintiff underwent an MRI scan of her lumbar spine in view of a history of low back pain and queried left-sided sciatica “since January 2016”, which, in light of the evidence, I read as a mistaken reference to February 2016. The report of that MRI scan observed there was intervertebral disc desiccation at the L3/4, L4/5 and L5/S1 levels, and annular tears at the L3/4 and L5/S1 intervertebral discs. The report also noted a mild left-sided paracentral and intervertebral disc protrusion at L4/5 compressing the traversing left L5 nerve root in the left L4/5 sub-articular recess: Exhibit “C”, pp 122 – 123;

4. In 2016, the plaintiff’s general practitioner recorded that the plaintiff’s lumbar pain involved sciatica that radiated to her left leg: Exhibit “C”, pp 70 – 71;

First operation

5. In 2016, on an unspecified date, at the referral of her general practitioner, the plaintiff was seen by Dr Charles New, an orthopaedic and spinal surgeon: Exhibit “C”, p 83. Other documents refer to the fact that Dr New operated on the plaintiff’s spine prior to 13 October 2016: Exhibit “C”, p 89. The dates of the pre-October 2016 operation were not in evidence;

6. On 13 October 2016, Dr New reviewed the plaintiff again in his rooms. He noted she had some left foot drop weakness following her surgery, on a date that was not specified. At that review he concluded that the plaintiff’s nerve, apparently the left sciatic nerve, was assessed to be in very poor condition, which to him, meant that the left foot drop weakness was unsurprising: Exhibit “C”, p 89;

7. On 17 October 2016, the plaintiff was again reviewed by Dr New with regard to her complaint of post-surgical footdrop, which he considered to be due to the plaintiff’s (left sciatic) nerve being in very poor condition. He prescribed a carbon fibre foot orthotic to assist the plaintiff with walking, he suggested an EMG study and a further review in about 5 – 6 weeks: Exhibit “C”, p 89;

8. On 24 October 2016, the plaintiff underwent a post-L4/5 laminectomy lumbosacral MRI scan to investigate post-operative left foot weakness. The radiologist commented that there was a small but normal post-operative fluid accumulation in the laminectomy defect but there was a substantial left paracentral disc protrusion still present at the level L4/5 which was unquestionably still impacting upon the L5 nerve root in the terminal portion of the intrathecal sac and at its origin: Exhibit “C”, p 121;

9. On 26 October 2016, the plaintiff was again reviewed by Dr New. He noted she had experienced a “disc recurrence” in that a very large piece of the L4/5 disc was detected to have broken away inside the disc space and had come out of place, such that revisionary surgery was required and this was arranged for 16 November 2016: Exhibit “C”, pp 87 – 88;

Second operation

10. On 16 November 2016, Dr New operated upon the plaintiff’s lumbar spine at Nepean Hospital. He carried out the procedure of left L4/5 neurosensory laminotomy, neurolysis and disc excision: Exhibit “C”, pp 85 – 86;

11. On 17 November 2016, Dr New described the most recently performed operation as involving the removal of a very large amount of disc material at the level of L4/5. This was carried out under image intensification. He noted that the nerve root at that level had been in very poor condition. He noted that a large amount of disc material had been removed and that the nearby nerve roots were then coated in an anti-adhesion gel. He stated that the plaintiff’s longterm prognosis was guarded, and he anticipated that further procedures would be required. He suggested a further review in 6 weeks’ time: Exhibit “C”, pp 84 – 85;

12. On 5 December 2016, Dr New wrote a short report noting that on 30 November 2016 he had reviewed the plaintiff again and noted she had experienced an improvement in her leg pain. He noted the plaintiff had returned to work and he planned to review her again in January 2017: Exhibit “C”, p 83;

13. On 5 January 2017, the plaintiff had an x-ray of her pelvis and left hip to investigate her left-sided symptoms at that time. The hips and pelvis x-rays were described as being normal without degenerative changes: Exhibit “C”, p 120;

14. On 19 January 2017, Dr New reviewed the plaintiff again. In his letter dated 23 January 2017, he reported that in his opinion the plaintiff had “a tremendous” result with regard to her leg pain. He planned a further review in 4 months: Exhibit “C”, p 82;

15. On 5 September 2017, at the request of Dr Samra, the plaintiff underwent an MRI scan of her lumbosacral spine. He noted the presence of post-laminectomy surgical findings in that there was no longer a residual disc protrusion on the left which had been compressing the L5 nerve. Disc flattening was also noted at L4/5. Some other findings were noted, namely, mild degenerative changes at L3/4 without significant neural compromise; mild degenerative facet joint disease at L5/S1 without neural narrowing; and a mild convex curvature of the spine at L4/5 centred at L4/5. No evidence was found of any recurrent disc protrusion at the level of L4/5: Exhibit “C”, p 119;

Commencement of pain clinic treatment

16. On 3 October 2017, the plaintiff was reviewed by the Western Sydney Pain Centre for persisting mixed back and neuropathic left leg pain following previous L4/5 discectomy decompression laminectomy, and L4/5 radiculopathy. Treatment options were discussed for medication change from opiates to a pain management and exercise programme, physiotherapy, psychological assistance for adjustment of expectations and acceptance, and the option of a spinal cord stimulator was also discussed: Exhibit “C”, pp 80 – 81;

17. On 21 November 2017, the plaintiff was again reviewed at the Western Sydney Pain Centre for her persisting back and neuropathic leg pain. She had successfully switched from opiate medication and was enrolling in the Kickstart programme of self-management for pain strategies: Exhibit “C”, p 79;

18. On 9 January 2018, the plaintiff was again reviewed at the Western Sydney Pain Centre following the earlier medication changes. It was noted that she had become more active and that her pain was better controlled. Her exercise regime was noted to be slow jogging twice per week and weights once per week. Ongoing pain management coping strategies were encouraged and physiotherapy and psychological treatment were identified as options to be considered: Exhibit “C”, pp 77 – 78;

19. On 13 February 2018, the plaintiff was again reviewed at the Western Sydney Pain Centre by Dr Ho, who noted the continued compliance with the prescribed medication regime. He noted the plaintiff had persisting mixed back and neuropathic left leg pain against a history of back surgeries. He also noted the plaintiff was more active, and was engaging in slow jogging twice per week: Exhibit “C”, pp 75 – 76;

20. On 17 April 2018, the plaintiff was again assessed at the Western Sydney Pain Centre by Dr Ho. He noted the plaintiff had persisting mixed back and neuropathic left leg pain against a history of back surgeries. He noted the continuing medications and he also noted that the plaintiff was doing well in the pain management programme, including remaining active, doing regular exercise and progressing with sports physiotherapy treatment: Exhibit “C”, p 73;

21. On 14 May 2018, the plaintiff underwent a non-contrast CT scan of her lumbar spine to further investigate her post-laminectomy and discectomy radiating left leg pain and left-sided sciatica. The radiologist commented that the scan revealed a new left paracentral disc protrusion at L4/5 since the previous MRI scan in 2017, resulting in moderate central canal stenosis and moderate to marked left neural foraminal stenosis with encroachment of the existing left L4 nerve root as well as a suspected impingement of the descending left L5 nerve root in the sub-articular recess. A trial of a CT-guided corticosteroid epidural injection at L4/5 was identified as a possibility for symptomatic relief: Exhibit “C”, pp 117 – 118;

22. On 18 May 2018, Dr Samra referred the plaintiff to Dr Richard Parkinson, a consultant neurosurgeon at St Vincent’s Hospital, for assessment and management of her lumbar problems and her related radiculopathy. Dr Samra referred to the plaintiff’s successive spinal surgeries carried out by Dr New three months apart in late 2016, referring to the second of those surgeries as “re-do surgery”. His concern was the plaintiff’s recurrent radiculopathy, in the form of ongoing left-sided sciatica to the left buttock and left thigh, which was having a heavy impact on the plaintiff. He noted the plaintiff had a left paracentral disc protrusion affecting the left exiting L4 and descending L5 nerve roots: Exhibit “C”, p 72;

Epidural block - temporary relief of pain

23. On 18 May 2018, the plaintiff had an epidural block injection that gave her only minimal pain relief: Exhibit “C”, p 70;

Referral to neurosurgeon

24. On 4 June 2018, the plaintiff’s general practitioner, Dr Jananee Seneviratne referred the plaintiff to Dr Parkinson for review with a history of laminectomy and discectomy having been “unfortunately performed at the incorrect level … complicated by leg numbness” followed by “a revised L5/S1 laminectomy 7 weeks later in late 2016”. The discrepancy between the estimated interval of three months referred to by Dr Samra at (22) above and this interval of seven weeks, is immaterial. The referral letter identified the plaintiff’s problem as ongoing left-sided sciatic pain radiating down to the left thigh. The letter noted the plaintiff was receiving regular rehabilitative treatment from a sports physiotherapist: Exhibit “C”, pp 70 – 71;

25. On 8 June 2018, Dr Parkinson saw the plaintiff and wrote to Dr Samra and to Dr Seneviratne to report his impression and recommendation, namely, the need to repeat the imaging and to then review her to try to chart the progress of the L5 nerve root, and to base his further recommendations afterwards. Dr Parkinson noted a history of significant ongoing back and left leg pain and constant numbness in the left leg since the second spinal surgery, and that the plaintiff’s ability to stand, bend, lift and run was affected by pain which was made worse by those activities. He noted midline back scarring, limited dorsiflexion of the spine and sensory losses. He reviewed the MRI scans dated 26 June 2016, 21 October 2016 and 5 September 2016. He noted the L4/5 disc bulge and disc height loss: Exhibit “C”, pp 68 – 69;

26. On 19 June 2018, the plaintiff underwent a lumbar MRI scan at the request of Dr Parkinson. The radiologist noted previous surgery at L4/5, degenerative disc disease at L3/4 with a posterior annular tear with disc flattening but no canal neural exit foraminal compromise. A new finding of a posterolateral disc protrusion was noted at L4/5 markedly compressing the origin of the left L5 nerve: Exhibit “C”, p 116;

27. On 4 July 2018, Dr Parkinson saw the plaintiff again in light of the recent repeat MRI scan and report. He wrote to Dr Samra and Dr Seneviratne expressing the view that the recurrent posterolateral L4/5 disc herniation was severely compressing the left L5 nerve, with associated severe pain. He suggested the plaintiff have a microdiscectomy rather than a fusion but noted a fusion may be required “if she herniated again”: Exhibit “C”, p 67;

Third operation

28. On 6 July 2018, Dr Parkinson carried out a spinal operation on the plaintiff at St Vincent’s Private Hospital: T67.20;

29. Between 16 July 2018 and 2 September 2018, it appears that the plaintiff was an in-patient at St Vincent’s Private Hospital: Plaintiff’s schedule of out-of-pocket expenses;

Fourth operation

30. On 31 August 2018, Dr Parkinson operated on the plaintiff at St Vincent’s Private Hospital. This was the plaintiff’s fourth major spinal surgery. The procedure was recorded as “Redo left L4/5 microdiscectomy” for recurrent left L4/5 disc herniation. The operative findings were recorded as being the removal of multiple herniated fragments to achieve excellent decompression. This operation had the effect of widening the previous laminectomy approach. A distal rhizolysis of the left L5 nerve root was confirmed. Post-operative physiotherapy and analgesia were provided: Exhibit “C”, pp 65 – 66;

Post-fourth operation reviews to present time

31. On 2 October 2018, one month following her further post-spinal surgery, the plaintiff presented to Nepean Hospital with atypical chest pain and pleurisy of 2 days duration, and difficulty breathing deeply. A pulmonary embolism was suspected but not confirmed. No pathological conditions were identified: Exhibit “C”, pp 60 – 64;

32. On 4 October 2018, pursuant to a request made on 10 September 2018, the defendant’s solicitor appears to have arranged for a Dr Peter Wilde to carry out a medical file review of the plaintiff’s situation without the benefit of an examination of the plaintiff. The defendant’s other orthopaedic expert, Dr Scott Harbison, whose report will be referred to shortly, was provided with a copy of Dr Wilde’s report but it was not tendered in evidence by the defendant. Dr Harbison stated that Dr Wilde’s comments and conclusions coincided with his own views of the events which are the subject of the proceedings, and on the plaintiff’s history as recorded by him: Exhibit “C”, pp 109 and 112;

33. On 5 October 2018, the NSW Department of Health issued a pharmaceutical authority to the plaintiff’s general practitioner for the plaintiff to be supplied with short-term Oxycodone, an opiate drug, for pain relief: Exhibit “C”, pp 58 – 59;

34. On 26 October 2018, the plaintiff’s general practitioner requested the NSW Department of Health to authorise a 3 – 6 month supply of a Schedule 8 opiate drug to treat the plaintiff’s ongoing pain, noting that the plaintiff had a history of requiring opioid analgesia for more than 2 years for recurrent left-sided L4/5 back problems: Exhibit “C”, pp 54 – 57;

35. On 6 November 2018, the NSW Department of Health issued a further authority for the plaintiff to receive the opiate Oxycodone for the period 6 November 2018 to 6 November 2019 for pain relief: Exhibit “C”, pp 52 – 53;

36. On 15 January 2019, the plaintiff was again reviewed at the Western Sydney Pain Centre following the surgery performed by Dr Parkinson. The plaintiff reported residual ongoing radicular leg pain and significant back pain. Dr Ho noted the plaintiff was still using Endone and was receiving physiotherapy. Dr Ho suggested a trial of diagnostic facet joint block injections bilaterally at L2/3 to L5/S1 and medial branch radiofrequency treatment: Exhibit “C”, pp 50 – 51;

37. On 26 March 2019, the plaintiff was again reviewed at the Western Sydney Pain Centre. Dr Ho noted that the plaintiff had a positive diagnostic result from the block injections to the left L4/5 and L5/S1 facet joints. He therefore booked her for radiofrequency therapy to the medial branches of the affected nerves at those levels: Exhibit “C”, pp 48 – 49;

38. On 30 May 2019, the plaintiff consulted Dr Noel Dan, a consultant neurosurgeon at the request of her solicitor. After examining the plaintiff and reviewing her history of injury, her sciatic pain, and the surgical treatments she has had, he considered there was a direct connection between the described injury and the tear to the L4/5 lumbar disc which had resulted in a protrusion. Dr Dan noted the plaintiff had a very large lumbar scar with evident trophic changes and a related and easily visible contour defect that was associated with adhesion to the underlying structures. He considered that her cited complaints would continue permanently: Exhibit “C”, pp 92 – 97;

39. On 2 July 2019, the plaintiff was again reviewed at the Western Sydney Pain Centre. Dr Ho reported that the plaintiff had significant benefit from the radiofrequency treatment to medial branches of nerves at the L4/5 and L5/S1 levels. He recommended a change to the plaintiff’s medication by weaning her off Endone and Palexia in favour of Norspan patches. He noted the plaintiff had significant pain sensitivity: Exhibit “C”, pp 46 – 47;

40. On 9 July 2019, Dr Ho reported that the plaintiff derived significant benefit from Norspan patches but she experienced the side effect of nausea which required that other medication be prescribed: Exhibit “C”, p 45;

41. On 14 August 2019 at the request of the solicitor for the defendant, the plaintiff was examined by Dr Scott Harbison, a consultant orthopaedic surgeon. Dr Harbison stated:

“The disc protrusion follows degeneration in the disc and rupture through the annular ligament. The nerve roots are adjacent to the disc and any protrusion or extrusion can result in nerve root pressure. A disc protrusion in general usually follows some degeneration but the extrusion event frequently follows a flexion and rotation strain as occurred in this case. The history is consistent with the sequence of events.

…

I believe that Mrs Powell's current condition is related to the incident on 04 February 2016, the run in June 2016, and pre-existing minor degeneration in the disc. There has also been some natural progression. I believe that the lifting incident in February 2016 caused a change in the pathology resulting in an extrusion of disc material and subsequent pressure on the left L5 nerve root. The run in June 2016 aggravated this condition, possibly by causing further disc extrusion.

212. Pursuant to s 16 of the CL Act, I therefore assess the plaintiff’s damages for non-economic loss at 35 per cent of a most extreme case, which is the monetary equivalent of $230,500.

Past economic loss

217. On behalf of the plaintiff, it was initially indicated that a claim would be made for damages for past economic loss in the buffer amount of $35,000: MFI “1”. In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $20,000: MFI “4”. In final submissions the plaintiff abandoned that claim.

218. Although the plaintiff has in the past experienced the need to take substantial time away from her work, which would ordinarily have resulted in loss of income, her employer has provided her with paid sick leave, which is not the subject of a claim for reimbursement: T12.49 – T12.50; T69.29 – T69.36.

219. I therefore make no assessment of damages for past economic loss.

Future economic loss

220. On behalf of the plaintiff, it was submitted that damages for future loss of earning capacity should be assessed in the buffer amount of $200,000: MFI “1”. In contrast, on behalf of the defendant, it was submitted that no such damages should be awarded: MFI “4”.

221. The claim for future economic loss arises in an unusual context in this case. First, the evidence discloses that, to the plaintiff’s credit, despite her disabilities, she has made considerable efforts to mitigate her damages by continuing to work, at times, under difficult circumstances that limit her ability to work in the same way she had previously been able to do. Secondly, to the great credit of her employer, despite her disabilities, she has progressed in her employment. This was made possible by her employer extending to her some considerable workplace understanding, including by making some adjustments to her working conditions. Thirdly, as a longstanding employee, the plaintiff has in the past obviously been able to draw upon considerable sick leave entitlements for which no refund has been sought by her employer. As a result of those circumstances, no weekly loss of income has been identified for the purpose of calculating a future loss of earning capacity.

222. Nevertheless, it is clear from the plaintiff’s ongoing disabilities as identified at paragraphs [85] to [102] and [103] to [108] above, and from her changed circumstances compared to what would otherwise have been her most likely circumstances, as referred to at paragraphs [111] to [117] above, that the plaintiff has suffered an impairment in her future loss of earning capacity that is likely to cause her to suffer economic loss in the future. That loss requires assessment.

223. A buffer amount is claimed in respect of that loss absent an identifiable recurring weekly loss that would permit a mathematical projection on the applicable discount tables: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

224. The claim for future economic loss must take into account a confluence of relevant imponderable factors. These include:

1. Her present contract of employment, which will be due for review in the near future, may not be renewed. If that occurs, she may not be able to secure equivalent well paid employment;

2. In the events leading up to a decision to have her fifth spinal operation, a four level fusion, she is likely to be dealing with increased levels of pain and discomfort that will have the real potential to interfere with her continued employment;

3. The likely result of a fifth spinal operation, which will doubtless require a period of convalescence and back rehabilitation involving restrictions on physical activity, is not known at present, but these matters must also be taken into account, including the possibility of an adverse result, or little improvement in her physical ability to work;

4. If she had to compete for employment on the open labour market against persons without disability and without the need for a prospective employer to make special allowances for her disability, including by providing ergonomic and other furniture specific to her needs, she may not be able to secure alternative employment at all, or if she manages to do so, it may not be at a similar rate of remuneration;

5. At age 46 years, she has approximately 21 years of potential working life ahead of her which, on her history, she would most likely have pursued to its full extent, if not longer, had she not been injured, and that considerable work capacity has been damaged as a result of her injury.

225. Those factors indicate that a substantial buffer allowance must be made for damages for future loss of earning capacity. I assess the plaintiff’s damages for future economic loss in the buffer amount of $150,000.

Past domestic assistance

226. On behalf of the plaintiff, it was submitted that damages for past domestic assistance should be assessed in the buffer amount of $26,600: MFI “1”. In contrast, on behalf of the defendant, it was initially submitted that such damages should be assessed at $5000: MFI “4”. The defendant subsequently argued that the plaintiff had not made out a claim for damages for past domestic assistance. In final submissions, the plaintiff abandoned her claim for past domestic assistance.

227. There is no doubt that after her injury, the plaintiff has received and has continued to receive considerable domestic and personal assistance from family members, including from one of her sisters and from one of her sons, the latter having also paid for some assistance to be provided from a commercial service. Before such assistance can be assessed in monetary damages, for the value of past assistance, statutory thresholds need to be satisfied. As this component of the claim is no longer pressed, this issue no longer requires examination or consideration in terms of quantification.

228. I therefore make no assessment of damages for past domestic assistance.

Future domestic assistance

229. On behalf of the plaintiff, it was initially indicated that damages for future domestic assistance should be assessed in the amount of $183,500: MFI “1”. In final submissions that claim was ultimately modified to an amount of $102,130. In contrast, on behalf of the defendant, it was submitted that no such damages should be awarded: MFI “4”.

230. The plaintiff’s claim for future domestic assistance has some support in the medical evidence. Dr Dan believes that the plaintiff will require assistance with the heavier duties comprising domestic maintenance, and that she would be unfit for outdoor tasks including gardening and mowing, and that she should avoid any heavy lifting activities including the scrubbing of floors: Exhibit “C”, p 93. Dr Harbison confirmed that the plaintiff’s need for domestic assistance has only been required because of her back problem: Exhibit “C”, p 109. That evidence remains unchallenged and uncontradicted.

231. The plaintiff lives in a rented four bedroom two storey townhouse with one bathroom, a front lawn and a backyard. Before her injury she mostly took the responsibility for the cleaning, which included vacuuming, mopping, the washing, placing the washing in the dryer, as well as the moving of the lawns and the shopping. The cleaning took about 3 hours per week, the lawns about an hour per week: T37.20 – T38.36.

232. The plaintiff did not employ a cleaner before her injury, but she has since. Typically, the employed cleaner spends two hours per week undertaking a big clean at a cost of $50 per hour on a Saturday morning: T77.35 – T79.34. In addition, the house is vacuumed two or three times per week which takes about 20 minutes on each occasion. She cannot vacuum upstairs because of the need to take the vacuum cleaner there which is difficult for her: T79.36 – T79.50; T120.48 – T121.3; T122.13. Her eldest son pays for someone to do the lawns once a week in summer and less frequently in winter: T81.7 – T81.34.

233. The plaintiff indicated, and I accept, that she will still be engaging a cleaner after these proceedings have concluded (T82.28), and that to keep a reasonable standard of maintaining the household, about two hours would be required per week (T83.12), in addition to the services of a person to garden and mow the lawns: T83.46 – T84.9.

234. In view of the plaintiff’s spasmodic experience of pain, at random, with more painful days than more good or manageable days (T84.33; T85.2; T122.20), I consider it reasonable to allow for future expenditure along those lines. The plaintiff is in a reasonable position to gauge the time required for such tasks without the need to resort to expert evidence: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].

235. The plaintiff submitted this component of her claim would be quantified reasonably by allowing for such assistance on a commercial basis of 3 hours per week at the rate of $45 per hour for a period of 35 years (x 875.6) but deferred for 3 years (x 0.864) to reflect the likelihood that by then the plaintiff would be living on her own, and whether in rented or her own accommodation, the extent of the need might lessen.

236. I consider that approach to be a reasonable one, save for the need to apply a discount of 15 per cent for potential vicissitudes, which includes the possibility of a degree of potential improvement after surgery. This yields the discounted sum of $86,810.

237. I therefore assess the plaintiff’s damages for future domestic assistance in the sum of $86,810.

Future treatment expenses

238. On behalf of the plaintiff, it was submitted that damages for future treatment expenses should be assessed in the buffer amount of $50,000: MFI “1”. In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $5000: MFI “4”.

239. At present, although the plaintiff is reticent about having future surgery, she is not functioning because of her pain. At times, during normal day-to-day things this is exceptionally draining for her, and this is pointing her to the likelihood of undergoing spinal fusion surgery: T71.35 – T72.15.

240. In light of that evidence, and in light of her ongoing chronic pain, I propose to make an allowance for the prospect of that surgery taking place.

241. The plaintiff is presently incurring treatment costs in relation to the following components:

1. Physiotherapy treatment, including the use of a TENS machine and involving different manipulative treatments and exercises to maintain back comfort, which at times involves weekly attendances, costs $79 per visit: T86.30 – T87.15. The plaintiff’s schedule of out-of-pocket expenses shows she has incurred $5916.35 for physiotherapy treatment between 10 October 2016 and 14 February 2020, which over approximately 172 weeks, equates to an average of $33.61 per week;

2. Consultations with Dr Ho, her pain management specialist, which used to proceed at monthly intervals, are now scheduled at 3 monthly intervals, at a cost of about $230 to $250 each, or about $18.46 per week: T87.39 – T87.50;

3. General practitioner consultations on an as need basis, including for pain medication, prescriptions and referrals, are at present bulk-billed: T88.2. That position is likely to change after she receives compensation from these proceedings. An allowance of one visit per month at $35, or $8.75 per week, therefore seems reasonable;

4. Pharmaceutical expenses as itemised in the plaintiff’s schedule of out-of-pocket expenses are in the total amount of $3467.53 over a 4 year period, have been incurred at an average of $16.67 per week over that period. That figure roughly equates to the currently weekly cost of Norspan and Endone prescriptions: T72.25; T72.30 – T72.34.

242. The cost of the proposed spinal fusion surgery is difficult to estimate. Hospital fees for the last surgery amounted to $25,708.81. The anaesthetic fee for that surgery was $1172.50. Dr Parkinson’s fee for the first operation was $7000. He generously performed his second operation pro bono, as is stated in the plaintiff’s schedule of out-of-pocket expenses.

243. Using that information as a guide, it would appear that the all-up costs of further spinal surgery may be conservatively costed at about $35,000 in round figures, which would include some allowance for post-operative physiotherapy and medication.

244. At age 46 years, the plaintiff has an expected statistical median life span of 42 years. The 5 per cent multiplier for 42 years is 931.5. Projecting the total of the estimated weekly costs outlined in paragraph [241] above, namely $77.50 per week, at 5 per cent over 42 years (x 931.5), this yields the sum of $72,191. Allowing a 15 per cent discount for vicissitudes, generously to the defendant, this yields the discounted sum of $61,362.

245. The total of those two sums amounts to $96,000 in round figures. Those figures have to be viewed in the context that the timing of future surgery is at present an uncertain imponderable factor. However, viewed overall, they demonstrate that the plaintiff’s claim of $50,000 for future treatment expenses should be seen to be reasonable and should be allowed.

246. I therefore assess the plaintiff’s damages for future treatment expenses in the sum of $50,000.

Past out-of-pocket expenses

247. I assess past out-of-pocket expenses in the agreed sum of $33,787.62.

Summary of damages assessment

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

(a) Non-economic loss	$230,500
(b) Past economic loss	$Nil
(c) Future economic loss	$150,000
(d) Past domestic assistance	$Nil
(e) Future domestic assistance	$86,810
(f) Future treatment expenses	$50,000
(g) Past out-of-pocket expenses	$33,787.62
Total	$551,097.62

Disposition

249. The plaintiff has established her entitlement to a damages award for $551,097.62 and she should have a judgment for that amount.

Costs

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

Orders

251. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant in the amount of $551,097.62;

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

3. The exhibits may be returned;

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

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Decision last updated: 04 June 2020