Powell v Success Leadership P/L

[2015] NSWDC 269

District Court

New South Wales

Medium Neutral Citation:

Powell v Success Leadership P/L [2015] NSWDC 269

Hearing dates:

13 November 2015

Date of orders:

17 November 2015

Decision date:

17 November 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.  Verdict and judgment for the plaintiff in the sum of $287,950.92;

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; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5D, s 15, s 16

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Penrith City Council v Parks [2004] NSWCA 201
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Category:

Principal judgment

Parties:

Stephanie Lenore Powell (Plaintiff)
Success Leadership Pty Ltd t/as Richard Martin’s Success Martial Arts (Defendant)

Representation:

Counsel:
Mr P Woods (Plaintiff)
(No appearance for the Defendant)

  Solicitors:
Bourke Love (Plaintiff)
(No appearance for the Defendant)

File Number(s):

2014/376054

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [2]
Facts	[3] – [25]
Plaintiff’s pre-accident background	[4] – [8]
Circumstances of injury	[9] – [10]
Injuries	[11]
Serial imaging studies	[12] – [15]
Treatment	[16] – [17]
Medical evidence	[18] – [20]
Disabilities that remain	[21] – [23]
Effects on plaintiff’s work and domestic activities	[24]
Mitigation	[25]
Assessment of damages	[26] – [50]
Non-economic loss	[27] – [31]
Past economic loss	[32] – [35]
Future economic loss	[36] – [39]
Past loss of superannuation	[40]
Future loss of superannuation	[41]
Future domestic care and assistance	[42] – [46]
Future treatment expenses	[47] – [48]
Past out-of-pocket expenses	[49]
Summary of damages assessment	[50]
Disposition	[51]
Costs	[52]
Orders	[53]

Nature of case

1. The plaintiff, Stephanie Powell, brings these proceedings against the defendant, Success Leadership Pty Ltd trading as Richard Martin’s Success Martial Arts, claiming damages for personal injury she sustained on 26 March 2014. She claims those injuries were as a result of the negligence of the defendant, arising from the duty of care owed to her in respect of the defendant’s occupation of gymnasium premises at 81 Union Street Lismore, NSW.

2. On 29 May 2005, the plaintiff obtained a default judgment against the defendant. It therefore remains necessary to assess the plaintiff’s entitlement to damages. The proceedings are governed by the Civil Liability Act 2002 [“the CL Act”].

Facts

3. My findings of fact are as follows.

Plaintiff’s pre-accident background

4. At the time of her injury the plaintiff was aged 49 years. She is married and has a dependent child completing her education. In 1993, the plaintiff obtained qualifications in early childhood teaching, and then pursued that profession. She spent some years out of the workforce on account of childcare responsibilities.

5. In 2001, the plaintiff obtained a Certificate IV in Assessment and Workplace Training. Between 2001 and 2010, after resuming work as a casual trainer in children’s services, she continued in that role, as well as working in a permanent part-time position as a family day care co-ordinator.

6. Between 2005 and 2010, the plaintiff obtained qualifications as a gym instructor and personal trainer. In that time she also obtained qualifications in a number of the social sciences comprising hypnotherapy, psychotherapy and counselling. In 2010, the plaintiff ceased her work as a family day care co-ordinator to pursue pet care work, which she continued until 2013.

7. On 14 November 2013, the plaintiff commenced work as a casual educator with Good Start Early Learning Centre in the capacity as a teacher. That employment required her to travel to various work locations at Goonellabah, East Ballina, Lennox Head and Byron Bay. Her work hours were varied, in four hour shifts.

8. But for the subject injury, it was the plaintiff’s intention to continue to exercise her earning capacity until the customary normal retirement age.

Circumstances of injury

9. On 26 March 2014, the plaintiff attended at the defendant’s premises at 81 Union Street, Lismore, pursuant to her gymnasium membership which entitled her to do so. On that day she participated in what was described as a 30 minute cardio exercise class.

10. Whilst the plaintiff was stepping off an exercise machine, unbeknown to her, an exercise ball was rolled towards her by an unsupervised child of another patron of the gym. That ball then rolled into the area where the plaintiff was located. As the ball made contact with the plaintiff, she fell heavily onto the floor. Plainly, that child should not have been there.

Injuries

11. In those events, the plaintiff sustained a painful fracture to her distal calcaneus, also described as an inversion injury to her left heel and ankle, with associated soft tissue injury and swelling.

Serial imaging studies

12. After an initial 3 weeks, the fracture was initially reported as being of the dorso-medial margin of the calcaneus at the calcaneocuboid joint, with a flake fracture off the base of the cuboid laterally, with minimal lateral separation of the peripheral fragments.

13. On 16 April 2004, a progress x-ray taken at 6 weeks post injury revealed the fracture to have persisted unaltered, with incomplete radiographic union.

14. On 11 February 2015, a further x-ray revealed that the fracture, which at that time had remained united, was seen to extend through the articular margin of the cuboid bone, and also involved the calcaneonavicular area.

15. On 6 March 2015, almost a year after the subject injury, an MRI study of the plaintiff’s left ankle was reported as showing persisting abnormalities, suggesting the presence of sprain within the anterior and posterior talofibular ligaments, as well as the deltoid and calcaneofibular ligaments. An ankle effusion and tenosynovitis of the peroneus brevis tendon, along with signs of previous trauma were also noted. Tenosynovitis of the tibialis posterior and tibialis anterior tendons was also noted. By that time, on the MRI scan it appeared that the plaintiff’s bony injuries had healed.

Treatment

16. The plaintiff attended Lismore Hospital, she has consulted her general practitioner, an orthopaedic surgeon, a physical medicine specialist, and has had physiotherapy. She has also taken medications for her pain. More recently she has seen a podiatrist who has provided her with orthotics and podiatric exercises.

17. The plaintiff remains concerned that conservative treatment has not improved the condition of her left foot and ankle. She has had a recommended steroid injection into the affected area. At present, her condition has plateaued. The reports of the imaging of her left ankle, as described above, indicate her concerns to be realistically based.

Medical evidence

18. In addition to being assessed at the hospital and then seeing her general practitioner, the plaintiff has been examined and assessed by Dr Charles Hew, a physical medicine specialist. Dr Hew issued a report dated 19 August 2015, in which he outlined the plaintiff’s impairments and the prognosis for ongoing restrictions. He has advised against surgical treatment in favour of conservative management.

19. Dr Hew has stated that the plaintiff’s ongoing impairments and disabilities are totally referable to the subject accident. In that regard, I accept the evidence of the plaintiff and Dr Hew: s 5D of the CL Act.

20. Dr Hew considers the plaintiff’s prognosis to be guarded in the context of ongoing disability. He has anticipated that although there may be periods of less acute disability, the plaintiff will always be biomechanically compromised in her left ankle, despite all the conservative treatment options. He considers the plaintiff will have persisting problems which will be exacerbated with any biomechanical overload. Plainly, overload of the kind referred to by Dr Hew, would be caused by physical activity.

Disabilities that remain

21. As a consequence, the plaintiff has been left with ongoing disabilities comprising pain, stiffness, restriction of movement and swelling to the left foot and ankle. She experiences difficulty walking on stairs, inclines, and difficulty maintaining her balance. These matters of compromise cause the plaintiff considerable frustration which in turn affects her outlook on life.

22. The plaintiff has been significantly impaired in her ability to maintain her exercise regime because it exacerbates her ankle injury. This in turn affects her health and fitness. She has reduced walking and standing tolerance. She experiences difficulty sleeping, and her sleep is disturbed and interrupted by the need to surround her left foot with pillows at night to seek to avoid pressure from the bed covers. Those matters have interfered with the marital harmony.

23. The described problems have adversely affected the amenity of the plaintiff’s life, her work, and her domestic activities. Her recreational past times, which include a physical fitness regime, gardening, martial arts and gymnasium training. She continues to need medication to manage her condition.

Effects on the plaintiff’s work and domestic activities

24. The plaintiff’s disabilities have had an adverse flow-on effect on her work and her domestic activities. Those matters will be assessed in the context of the assessment of the plaintiff’s damages.

Mitigation

25. There is nothing in the evidence to suggest that the plaintiff has in any way failed to take reasonable steps by way of pursuit of treatment aimed at ameliorating the adverse effects that the accident has had upon her. Therefore, the plaintiff’s entitlement to damages does not require reduction on account of mitigation issues.

Assessment of damages

26. For the purpose of assessing damages, there is no indication in the evidence to contradict the presumption that she will have an ordinarily anticipated life span. The assessment of the plaintiff’s entitlement to damages proceeds in the paragraphs that follow

Non-economic loss

27. The assessment of the plaintiff’s damages for pain, suffering, and loss of amenity of life, otherwise known as non-economic loss, must proceed according to a comparison of the effects of the accident upon her, compared to a most extreme case: s 16 of the CL Act.

28. Without again reciting the effect of the plaintiff’s disabilities already described at paragraphs [21] to [23] above, or the effect of the factual and the medical evidence already outlined at paragraphs [12] to [20] above, it is clear that she has suffered a significant ankle injury that continues to compromise her left ankle for everyday activities. At the present age of 50 years, the plaintiff can expect a median life expectancy of a remaining 35.7 years. It appears that her disabilities will not lessen in that time.

29. Without intending any criticism of the plaintiff’s lawyers, the hearing of this case was conducted with commendable efficiency and brevity in the context of a busy circuit list. In quiet reflection when considering the evidence and my judgment, it has become plain that the brevity of the hearing has to a degree masked the seriousness of the effects the accident has had upon the plaintiff.

30. In the course of my consideration, I have concluded that the range of damages for non-economic loss in this case is between 27 per cent and 30 per cent of a most extreme case. Given the plaintiff’s relatively young age and the ongoing impact of her injuries and disabilities upon her, I consider the appropriate assessment to be toward the upper end of that range, namely 29 per cent.

31. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $107,000.

Past economic loss

32. The plaintiff makes a claim for past economic loss in the sum of $17,000. That sum is calculated at a net loss of $200 per week over the period of 85 weeks between 26 March 2014 and 12 November 2015.

33. I accept the evidence of the plaintiff that, but for the effects of the accident, she would have secured full-time work by 2015. I also accept that the plaintiff’s ability to maintain full-time work is compromised by the effects of her injuries, and this has caused a loss of earning capacity that had been, and will continue to be, a source of financial loss to her. I accept she would have sought out full-time work as her daughter became less dependent upon her and this would have been the case around the time of the accident. I also accept the calculations of the plaintiff’s net earnings to date as interpreted in the affidavit evidence based on the economic loss materials tendered.

34. Full-time earnings in childcare work would produce an income of the order of $1000 to $1100 per week net. On the evidence, I consider that the claim of a loss of $200 per week net is in general terms, a reasonable one, but as the plaintiff had not yet secured the anticipated full-time work by the time the accident had occurred, the amount claimed must be discounted to a modest degree to reflect that vicissitude. In that regard, I consider a discount of 10 per cent would be appropriate. In all other respects, the claim as made is reasonable.

35. I therefore assess the plaintiff’s damages for past economic loss in the amount of $15,300.

Future economic loss

36. The plaintiff makes a claim for future loss of earning capacity on the same basis of a weekly loss of $200 per week net projected on the 5 per cent tables over 15 years to age 65 (x 555) and discounted for potential adverse vicissitudes by the conventional factor of 15 per cent, to yield the amount of $94,500.

37. In my assessment, the base rate for that approach, whilst reasonable in respect of the assessment of past economic loss, is unduly conservative having regard to the combined effect of the evidence of the plaintiff and that of Dr Hew, where he explains the guarded prognosis in terms of the effect of biomechanical load on the plaintiff’s left ankle.

38. As the plaintiff has at least a further 15 years of working life ahead of her, the impact of her disabilities on her capacity to continue walking, standing, load bearing, and also considering the scope for pain and discomfort with such activities, will most probably have a significantly adverse effect on her ability to gain and maintain full-time employment in many areas, not just restricted to her present work classifications, and including the likelihood that her portability of employment would also be adversely affected as a competitor to able bodied competitors in the labour market generally. Those factors indicate that rather than adopting a mathematical approach, the award of a buffer sum is the more preferable course in this case: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. I

39. I therefore assess the plaintiff’s damages for future economic loss in the amount of $110,000.

Past loss of superannuation

40. In accordance with well settled practice, I assess the loss of the employer funded superannuation component on past economic loss of $15,300 at 9 per cent, namely $1377. I therefore assess the plaintiff’s damages for the loss of past employer funded superannuation in the amount of $1377.

Future loss of superannuation

41. In accordance with well settled practice, I assess the loss of the employer funded superannuation component on future economic loss of $115,000 at 11 per cent, namely $12,650. I therefore assess the plaintiff’s damages for the loss of future employer funded superannuation in the amount of $12,650.

Future domestic care and assistance

42. There is no claim for past domestic assistance. It appears that such a claim would not have satisfied the statutory threshold: s 15 of the CL Act.

43. However, the plaintiff makes a claim for future domestic care and assistance in the sum of $26,656. That sum was calculated on the basis of the value of 1 hour per week of such assistance costed commercially at $40 per hour, projected on the 5 per cent tables for 20 years, which is less than the median life span.

44. I consider that claim is reasonably grounded in the evidence. I accept the plaintiff’s evidence that she has difficulty undertaking the heavier aspects of her housework which does not include the work she otherwise does herself or that which her husband carries out.

45. On the evidence, I consider that an average allowance of 1 hour per week is reasonable. The suggested hourly rate of $40 as the cost of commercial care is consistent with what is seen in such cases. As the claim has only been made for the ensuing 20 years, that amount claimed should not be further discounted.

46. I therefore assess the plaintiff’s damages for future domestic assistance in the amount of $26,656.

Future treatment expenses

47. The plaintiff makes a claim for future treatment expenses in the sum of $10,000. That sum is suggested as a buffer against the prospect of the plaintiff needing further medical reviews, investigations and treatment from medical practitioners, including her general practitioner, orthopaedic surgeons, physiotherapists, podiatrists and the cost of medications. Given the chronicity of the plaintiff’s problems, and her relatively young age, and the difficulty identifying specifically calculated amounts and having regard to uncertainties as to the likely timing of the incidence of such likely future expenses, I consider the buffer amount claimed to be reasonable.

48. I therefore assess the plaintiff’s damages for future treatment expenses in the amount of $10,000.

Past out-of-pocket expenses

49. The plaintiff has incurred documented out-of-pocket expenses for treatment in the amount of $3922.92. In addition, she estimates her obligation to reimburse Medicare and her health fund BUPA in the total amount of $1000. I accept her estimates in that latter regard as reasonable. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the amount of $4922.92.

Summary of damages assessment

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

(a) Non economic loss	$107,000
(b) Past economic loss	$15,300
(c) Future economic loss	$110,000
(d) Past loss of superannuation	$1,377
(e) Future loss of superannuation	$12,650
(f) Future domestic care and assistance	$26,656
(g) Future treatment expenses	$10,000
(h) Past out-of-pocket expenses	$4,922.92
Total	$287,905.92

Disposition

51. The plaintiff is entitled to a verdict and judgment in her favour in the amount of $287,905.92.

Costs

52. As the plaintiff has succeeded on all issues in the litigation, she is entitled to an order that her costs be paid by the defendant on the ordinary basis.

Orders

53. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $287,905.92;

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: 17 November 2015