Salih v Emirates (No 2)

[2019] NSWDC 715

District Court

New South Wales

Medium Neutral Citation:	Salih v Emirates (No 2) [2019] NSWDC 715
Hearing dates:	1-4 October 2019; 8 November 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs as agreed or assessed. (3) Any application to vary the costs order in (2) above should be made within 14 days. (4) Exhibits to be returned in 28 days.
Catchwords:	Aviation law – personal injury to plaintiff – claim by defendant of contributory negligence of plaintiff – whether an “accident” to the plaintiff within the Montreal Convention 1999 - whether injury to plaintiff extended beyond injury to right thumb to injuries to right wrist and arm and right shoulder – whether plaintiff entitled to commercial domestic assistance – amount of buffer to be awarded, if any, for loss of future earning capacity.
Legislation Cited:	Civil Aviation (Carriers Liability) Act 1959 (Cth) Civil Liability Act 2002 (NSW) Civil Liability (Non-Economic Loss) Amendment Order 2019 Montréal Convention 1999 Warsaw Convention 1929
Cases Cited:	Air France v Saks (1985) 470 US 392 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Di Falco v Emirates (No 2) [2019] VSC 654 Dibbs v Emirates [2015] NSWSC 1332 Graham v Baker (1961) 106 CLR 340 Gulic v Angelovski [2018] NSWCA 161 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 Lloyd v Thornbury [2019] NSWCA 154 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Miller v Galderisi [2009] NSWCA 353 Paff v Speed (1961) 105 CLR 549 Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 Penrith City Council v Parkes [2004] NSWCA 201 Povey v Qantas Airways Ltd (2005) 223 CLR 189 Redding v Lee (1983) 151 CLR 117 Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216 Smith v Alone [2017] NSWCA 287 South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18] Wahba v Caroll & O'Dea Lawyers [2018] NSWDC 128 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Texts Cited:	Luntz, Assessment of Damages for Personal Injury and Death, 4th Edition, Butterworths, 2002
Category:	Principal judgment
Parties:	Gul Salih (Plaintiff) Emirates (Defendant)
Representation:	Counsel: C Stewart (Plaintiff) D Stanton (Defendant)   Solicitors: AJB Stevens Lawyers (Plaintiff) Norton White (Defendant)
File Number(s):	2018/00319062

Judgment

1. In these proceedings, the plaintiff, Mrs Gul Salih, seeks an award of damages against the defendant, Emirates, the international airline carrier, in relation to injuries and consequential pain and restrictions, which she says occurred as a result of an accident on 31 October 2016. The plaintiff and her family were returning on an air flight from Dubai to Sydney. In the course of the early morning, the plaintiff got out of her seat to obtain some infant formula for her baby from a bag stored in the aircraft overhead locker. The plaintiff claims that when the locker was opened by her the door of it fell heavily on her right thumb and hand which has caused significant pain and restrictions to her since the time of the accident.

2. The claim against Emirates is made under the 1999 Montreal Convention relating to international carriage by air which deals with the liability of a carrier for, among other things, personal injury. Section 9E of the Civil Aviation (Carriers Liability) Act 1959 (Cth) provides as follows:

“9E Liability in respect of injury

Subject to section 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.”

3. The limitations set out in s 9F do not apply. The term “the Convention” in s 9E means the 1999 Montreal Convention “as having the force of law because of s 9B”: Section 9A of the Civil Aviation (Carriers Liability) Act 1959. Section 9B provides, in substance, that the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the Convention applies. It appears to be accepted that in relation to actions in New South Wales, the provisions of the Civil Liability Act 2002 (NSW) (“CLA”) apply in determining damages for personal injuries, subject to anything in the Civil Aviation (Carriers Liability) Act 1959 to the contrary: see Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32; Wahba v Caroll & O'Dea Lawyers [2018] NSWDC 128.

4. Article 17.1, Article 20 and Article 21 of the 1999 Montreal Convention provide as follows:

Article 17—Death and Injury of Passengers—Damage to Baggage

1.  The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 20—Exoneration

If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21.

Article 21—Compensation in Case of Death or Injury of Passengers

1.  For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

2.  The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that:

(a)  such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b)  such damage was solely due to the negligence or other wrongful act or omission of a third party.

5. The plaintiff's Statement of Issues dated 30 September 2019 is as follows:

“Damages

1.  Are the Plaintiff’s current medical circumstances causally relevant to the event of the accident?

2.  What are the Plaintiff’s entitlements to:

(i)  non-economic loss;

(ii)  past economic loss;

(iii)  future economic loss;

(iv)  past out-of-pocket expenses;

(v)  future medical expenses; and

(vi)  future domestic assistance?”

6. The defendant's Statement of Issues dated 23 September 2019 is as follows:

“A.  LIABILTY

1  Was the injury suffered by the Plaintiff on 31 October 2016 an “accident” within the meaning of the Montreal Convention 1999; and

2.  If so, was any damage or loss suffered by the Plaintiff caused or contributed to by the Plaintiff’s own negligence?

B.  QUANTUM

1.  What was the extent and duration of the injury suffered by the Plaintiff as a result of the incident on 31 October 2016?

2.  To what extent were the Plaintiff’s injuries and disabilities the result of a pre-existing medical condition or arose from a prior incident, and were any continuing injuries and disabilities the inevitable result of the Plaintiff’s pre-existing medical condition?

3.  What is the quantum of the Plaintiff’s damages caused by the incident on 31 October 2016?”

The pleadings

7. The proceedings were commenced by the plaintiff by a Statement of Claim filed on 18 October 2018. The plaintiff's claim, in summary, is as follows:

1. At all material times, the plaintiff was a “passenger” within the meaning of Article 17 Clause 1 of the 1999 Montreal Convention as incorporated in the Civil Aviation (Carriers Liability) Act 1959 (Cth);

2. At all material times, the defendant was a corporation carrying on the business of providing international carriage of passengers by air;

3. At all material times, the defendant was a “carrier” within the meaning of Article 17 Clause 1 of the 1999 Montreal Convention;

4. On or about 1 September 2016, the plaintiff purchased from the defendant a ticket to fly from Istanbul in Turkey to Sydney, Australia, with a stopover in Dubai;

5. On about 31 October 2016, the plaintiff boarded the defendant’s flight EK414 in Dubai and, in the course of the flight whilst accessing the overhead compartment, sustained injury when the overhead compartment fell heavily onto her right hand and thumb;

6. As a result of the accident, the plaintiff suffered injury to her right thumb and right hand;

7. The agreement through the purchase of a ticket constituted an agreement for international carriage by air;

8. The plaintiff's injury was caused by the accident and the accident occurred on board the aircraft;

9. By operation of Article 17 Clause 1 of the 1999 Montreal Convention, the defendant is liable for the damage sustained by the plaintiff;

10. As a result of the accident, the plaintiff has suffered loss and damage.

8. The Statement of Particulars relied on by the plaintiff was the statement filed on 2 October 2019. This referred to injuries to the right thumb, right hand and right shoulder with continuing disabilities to, among other places, those parts of the plaintiff's body. In opening, counsel for the plaintiff said that an injury to the plaintiff’s neck and related problems with the neck were no longer pressed.

9. The plaintiff seeks damages for:

1. Past out-of-pocket expenses;

2. Future out-of-pocket expenses;

3. Future commercial care;

4. Future loss of earning capacity.

10. By its Defence dated 8 February 2019, the defendant admits that the plaintiff was a passenger during international carriage by air pursuant to a contract on flight EK414 departing Dubai for Sydney on 31 October 2016 but otherwise does not admit that there was an accident or the other claims by the plaintiff. A pleading of contributory negligence is made. In paragraph 6 of the Defence, it is pleaded that if the plaintiff is otherwise entitled to recover damages, the damages are to be assessed, conformably with the CLA.

The plaintiff's evidence

Documents relating to the accident

11. A number of documents were tendered relating to the accident. At page 21 of Exhibit 1 was an extract of incidents relating to flight EK0414 on 31 October 2016. This extract includes the following: “Mrs Salih informed crew that she hurt her right thumb when she opened the overhead locker … Customer said that when she opened the overhead locker it fell on her thumb … Customer thumb was painful and swollen.” There is also a reference to action that was taken by the crew to assist the plaintiff.

12. At pages 22 and following of Exhibit 1 is a medical incident report for the defendant. This referred to the plaintiff’s injury to her “hand/finger” as involving severe and sharp pain. The report included the following: “Customer was opening hat rack when it landed on her right thumb. Ice pack was applied. Swelling was observed. Customer could move her thumb. However it was painful.”

The oral evidence of the plaintiff

13. The plaintiff gave oral evidence that she was a school teacher by profession and was born in 1981 making her 38 years old at the time of the final hearing. She gave evidence that she completed a Bachelor of Early Childhood Education at the University of Western Sydney between 2003 and 2005. The plaintiff stated that she got married in 2007 and has three children aged 10, eight and three. As at 31 October 2016, the plaintiff said that she was on maternity leave from her teaching job and that this leave had started in about April 2016.

14. The plaintiff gave evidence that she was returning from Europe on Emirates flight EK414, having left Dubai. She said she got up in the course of the night as her baby required a bottle. She said she stood up to go to the overhead compartment where the bottle was stored and lifted her arms above her head with the left arm being slightly higher than the right arm and with the left arm having her palm facing towards her face in order to open the latch on the door. The plaintiff gave evidence that after she opened the latch with her left hand the compartment dropped heavily onto her right hand in the thumb area towards the base of the thumb.

15. The plaintiff said that she grabbed her right hand with her left hand and sat down in her seat in pain. She said she had not experienced any pain in the area before the accident. She told her husband what had happened and he called the steward who gave the plaintiff an ice pack and medication.

16. The plaintiff said this did not help and the pain became worse. In due course, the steward wrapped the thumb in a splint. The plaintiff confirmed that at that stage the pain was localised to the thumb area.

17. The plaintiff confirmed that a form was filled out by the Emirates personnel which she identified as the document at Exhibit 1 pages 22-23. She said she did not read it at the time.

18. The plaintiff arrived home in Sydney on her Emirates flight. She gave extensive evidence about medical consultations following the accident commencing on 2 November 2016 including with her general practitioner at the Astley Medical Centre. She confirmed that this was a local medical centre where her general practitioner was situated. Her general practitioner advised that she should take analgesia and referred her for an x-ray of the right thumb which she had on 10 November 2016. The x-ray showed no fracture. Over the next week, the plaintiff said that the thumb was worsening and it looked swollen. The plaintiff gave evidence that in due course she was referred for a CT scan of the right thumb and also an MRI scan. Her general practitioner referred her to a Dr Gupta who specialised in hand matters. She also gave evidence that her general practitioner referred her to Precision Physiotherapy for physiotherapy attention and that she attended physiotherapy on the day of the referral which was 12 November 2016. The plaintiff said the physiotherapist put a splint on her thumb which remained in place for approximately six weeks. The plaintiff confirmed that she made a complaint to Emirates in relation to the accident on 16 November 2016.

19. The plaintiff gave evidence that she continued to see her general practitioner at the medical centre. In the period from the end of December 2016 to January 2017, her thumb remained painful particularly while doing general household tasks. These included laundry, washing and housecleaning.

20. The plaintiff said that prior to the accident she did all the domestic duties around the house. She attempted to do them again after the accident but found that they aggravated the pain in her thumb. She said she got others to help her with the domestic tasks including her husband.

21. The plaintiff stated that in April 2017 she went to her general practitioner in relation to pain in the right wrist area but she had noticed that before the consultation on 10 April 2017.

22. The plaintiff gave evidence that in July 2017 she had a steroid injection in her thumb which assisted for a short time with the pain going away for about two weeks before it returned.

23. The plaintiff stated that on 17 July 2017 she returned to her work at [XXX] College fulltime from her maternity leave. Prior to the accident, she had been teaching in the lower grades, being Kindergarten to Grade 2. These were the grades that she preferred and was trained for. However, she said she was not able to return to these grades in July 2017 because she needed to demonstrate pencil grip and letter formation to the younger children which she could not do because of the pain in her thumb. She was therefore moved to teaching higher grades and taught a Year 5 class in term three of 2017 and a Year 3 class in term four of 2017. Even with these grades, the plaintiff said that she had some difficulties including writing on the board and lifting her arm up. She said by this stage she had pain radiating up her right arm stopping at the elbow. The pain meant that it was difficult for the plaintiff to move her right arm above her head.

24. The plaintiff gave evidence that she was not coping with her job as at July 2017 and had a meeting with the Deputy Principal relating to this who told her to try her best and to let her know if she needed anything.

25. The plaintiff stated that she put a support on her arm at the beginning of 2019 which did not particularly help but it took a bit of the pain off her arm.

26. The plaintiff gave detailed evidence in relation to her various doctor and physiotherapist appointments. She said that one of the radiological investigations disclosed a fracture. Later evidence showed that this was said to be at the base of the fifth metacarpal joint.

27. The plaintiff gave evidence that in August 2017 she developed pain in her right shoulder which in her view radiated from her hand. At this time she had been prescribed painkillers but she was not taking them as they caused some dizziness and drowsiness at work. The plaintiff noted that she had tightness in her hands and her shoulder. She saw the physiotherapist and her general practitioner. Due to continuing pain in the hand and the shoulder, the plaintiff was referred to Dr Gupta. The plaintiff gave evidence that the physiotherapy was of some assistance to her as it helped her in the movement of her thumb. The plaintiff said that she continued to have physiotherapy on a fortnightly basis and it assisted her with ensuring she had improved movement in her thumb. By late 2017, the plaintiff said she was complaining about pain in her forearm with tingling and numbness in the fingers on her right hand. She said she was not sleeping very well and could not lift her right arm high because of the pain.

28. The plaintiff gave evidence that her pain affected her work duties. For example, the pain in her hand and right arm limited her ability to mark without aggravating the pain and meant she had to undertake marking in multiple sittings. It also affected her ability to write on the blackboard. The plaintiff stated that in November 2017 she had a steroid injection in the right shoulder which improved it for a short period.

29. The plaintiff gave evidence that her pain in the arm limited her capacity to drive distances and she could only drive for 20 to 30 minutes. She said this led to her being transferred to the Prestons campus which was closer to her home.

30. The plaintiff said that in April 2019 she had an arthroscopy to her right shoulder performed by Dr Gupta at Nepean Hospital.

31. The plaintiff gave further evidence in relation to her difficulties after the accident in undertaking domestic duties. She said she found difficulties in undertaking general housework including mopping, cleaning, gardening, washing and cooking. She said that in relation to the areas where she could not do the work, they were done by her husband and children who did the best they could but could not complete them very well. The areas undertaken by them included vacuuming, mopping, washing, and doing the dishes as well as cleaning. The plaintiff was particularly disappointed that she could not continue with the gardening which she said was a hobby of hers.

32. The plaintiff stated that the garden had become overgrown since the accident which distressed her. She said her husband continued to do the lawn mowing which he had completed prior to the accident.

33. In relation to cooking, the plaintiff said she was limited to preparing very simple food. She said that prior to the accident, she undertook domestic duties daily for several hours including cooking, cleaning the bathrooms, vacuuming and mopping. Since the accident, she said her husband and her children tried their best with all of the tasks but only undertook them for about one or two hours every week and did not change the beds every week or undertake everyday cleaning. She said her husband was tired as he worked. She also said that she believed she was pushing the children to do tasks beyond their limits. This was an area of evidence where the plaintiff became upset having regard to the fact that she believes she was putting too many burdens on her husband and children in relation to domestic tasks.

13. The plaintiff gave evidence that she needed someone with her when she shopped and did smaller shopping as she could not lift the heavier shopping bags.

14. The plaintiff said that the injury had affected aspects of her teaching. For example, the plaintiff gave evidence that she was on the sports committee at her school which organised sporting carnivals and showed teachers how to undertake sporting activities. She had left the committee because of her injuries. She also gave evidence that as a primary school teacher she was expected to take the children for sport and to show them the techniques of the activities such as throwing and catching a ball. She said she was unable to do that activity and showed the children by drawing it and having them undertake the activity together. In order to limit her marking burden, the plaintiff also said that she got the children to do some marking of their own work or to mark each other's work. The plaintiff said she had applied for two more senior positions but had been unsuccessful with them.

15. The plaintiff gave evidence that she had taken a number of days off work to stay at home due to pain in her arm which meant she could not drive and she needed to rest.

16. The plaintiff was asked further questions about when her symptoms manifested themselves other than the pain in her thumb. She said that the problems with the shoulder emerged in 2017 and with the wrist within a few months after the accident. The plaintiff gave evidence the pain in her shoulder had progressively got worse which led to her arthroscopy in the right shoulder. She said it eased the pain in her shoulder but it was still painful and the pain in her wrist and hand still existed today. She said she took tablets such as Panadol, Nurofen and Voltaren for the pain and also applied an ice or heat pack to her hand and shoulder. Her physiotherapy continued fortnightly as an outpatient at Nepean Hospital. While the plaintiff said this did not improve the pain she said that it helped improve the strength in the wrist and the arm and the functioning of those areas including the hand.

17. The plaintiff said that she was persevering with her teaching and doing her best. She said she had been given great understanding by her school which was a private school. She said that she believed she would have difficulties undertaking teaching at a public school. She said her employer had given her time off when it was needed.

18. The plaintiff stated that she had thought of obtaining the services of a commercial cleaner but believed a cleaner would be too expensive. She also said that she would have difficulty arranging a cleaner with her work but said arrangements could be made for her mother to be there when the cleaner came or the cleaner could come on the weekend.

19. The plaintiff was cross-examined in relation to her evidence that a commercial cleaner was too expensive. The plaintiff said that she hoped that she could work less hours and put less pressure on her arm but she would still hire a cleaner. She said she had made enquiries with her colleagues about a cleaner and understood that based upon her research a good cleaner could charge $100 plus an hour. No objective evidence was tendered supporting this figure.

20. The plaintiff was cross-examined about a recent trip to Kenya which she said was a humanitarian trip organised by her employer, which had some teachers visiting orphanages and supporting families. She said she went with two teacher friends and an organiser and as it was arranged by her employer she said she got a deduction for the trip from her tax. The plaintiff agreed that she had elected to go on the trip. She said she took a bag on the trip which she was able to wheel but the male organiser placed it on a trolley and pushed it for her.

21. The plaintiff was asked detailed questions in relation to the background to the accident on the Emirates flight. She gave evidence that she had on the flight with her, her mother, husband, two children and her third child who was a baby at the time. The plaintiff said the backpack which contained the baby’s prerequisites including baby formula, water and nappies, which was not that heavy, was placed in the overhead locker the door of which fell on her thumb. The plaintiff said she could not recall putting the pack in the overhead locker but knew where it was. The plaintiff agreed that it was usual for aircraft staff to give a warning to be careful about luggage moving in the overhead lockers and to take care in opening them and she believed that warning was given at the commencement of the flight. The plaintiff said that the cabin was in darkness but there were low level lights on in the cabin. She said she opened the overhead locker with her left hand and it dropped down onto her hand suddenly: T106.38; T106.44; T106.48; T107.10; T109.13-.20. She said she was facing the locker at the time: T112.2.

22. The plaintiff said she had glimpsed at the open locker when items were being placed in it and she thought it was full with the relevant backpack being placed towards the front of the locker. She agreed that her right hand was at a slightly lower level to her left hand. She said she was looking at what she was doing and nothing fell out onto her hand. She denied that she used her hands to lower the locker or that it opened slowly. The plaintiff said that it fell heavily onto her right hand. She disagreed with the account of the accident as set out by Dr Chand in his report at Exhibit A page 46 which stated that an overhead compartment “accidentally opened, and a bag fell onto her right hand”. The plaintiff denied telling Dr Chand that this was what happened: T108.46-T109.4. She said it was incorrect to say that the opening was accidental or that the backpack fell on her hand. The plaintiff said that the compartment door fell down suddenly when she opened it. It was put to the plaintiff that she did not notify Emirates that the locker was defective and she denied that. However, she agreed that she did not say that to the staff on the plane as she was in pain at the time: T111.24. The plaintiff agreed that at the time the pain was localised at the base of her thumb: T112.25; T113.29.

23. The plaintiff was asked questions about her neck pain which had not been pressed by her in the proceedings. She agreed that she told her solicitors that she had problems with her neck, with pain and restrictions in movement. She also agreed that she had pain in her neck radiating to her right shoulder which affected her teaching work. The plaintiff agreed that her neck pain caused problems with domestic tasks including in cleaning, gardening, lifting, reaching and looking up and down, although the surgery had assisted her arm somewhat. She also agreed that she believed all her problems with the right arm were caused by the accident.

24. Counsel for the defendant then took the plaintiff through a number of consultations which she had with medical practitioners from 2 November 2016. It was put to the plaintiff that in relation to her medical consultations between 2 November 2016 and 10 April 2017, her complaints that were made to the doctors were of tenderness and pain limited to the plaintiff's right thumb. The plaintiff said it was not in relation to tenderness of the right thumb but that the right thumb was sore and in pain. The plaintiff disagreed that her complaints were limited to the thumb. When it was put to the plaintiff that there were no recorded complaints in the consultation notes between 2 November 2016 and 10 April 2017 of pain anywhere other than her thumb the plaintiff said that she had pain in her hand in that time and by her hand she meant from the base of her right thumb extending across the palm of her hand to the side of her right hand. When it was put again to the plaintiff that it was not until 10 April 2017 that there was the first complaint by the plaintiff of pain into her wrist the plaintiff said that was “possibly” right: T120.43. The plaintiff said that her recollection was that the pain in her right wrist started about a month before she first saw the doctor, that is about 10 March 2017. The plaintiff said that she noticed she did not have much strength in the hand and this was noticed during childcare which aggravated the pain: T122.2. At that time her son was about nine months old.

25. The plaintiff was cross-examined about her resuming some work in early 2017. The plaintiff agreed that she did some casual work as a university advisor to practising teachers on a part-time basis before she commenced her fulltime work again in July 2017. She said this was done in schools which were local to her. The plaintiff also stated that she completed some limited casual teaching in June 2017 in local public schools. The plaintiff agreed this was done while she was on maternity leave but said that by that time her maternity pay period had expired.

26. The plaintiff agreed that she went back to work fulltime for term three in July 2017. When it was put to the plaintiff that she did not have any pain in her small finger in her right hand, the plaintiff said she did have pain in her hand extending from the base of the thumb across the palm to the base of the little finger: T127. When it was put to the plaintiff that she had no pain or tenderness in her small finger and that this is what she said to her physiotherapist, the plaintiff replied “possibly”: T128.24-.27. The plaintiff said that the physiotherapist did not assist with the pain but did assist with movement of her thumb. When it was put to the plaintiff again that the tenderness was limited to the thumb and that she told her physiotherapist that she had no tenderness on the little finger of the right hand, the plaintiff agreed that she told the physiotherapist she had pain at the base of the right thumb but then inconsistently said that the pain extended only to the middle of the palm: T128.15. The plaintiff said she saw the physiotherapist to improve the strength in her hand. It was put to the plaintiff that the first time she reported pain on the far right side of her hand in her small finger was on 29 July 2017 to her physiotherapist (Exhibit 1 page 166). The plaintiff said that she could not remember but she was sure that she had mentioned it earlier.

27. It was then put to the plaintiff that her complaint in relation to her lower arm came on in 2017 and reference was made to the markings on the diagrams by the physiotherapist from 29 July 2017 (Exhibit 1 pages 166-168). The plaintiff agreed that the problems with her lower arm came on in 2017 and that she sought treatment for it when it became problematic. When it was suggested to the plaintiff that the problems with her arm started shortly before she saw Mr Webster, physiotherapist, on 29 July 2017, the plaintiff said the conditions became worse then.

28. It was suggested to the plaintiff that she told her physiotherapist on 29 August 2017 that her “thumb has been pretty good” (Exhibit 1 page 168). The plaintiff could not remember that but said it was probably not the case as she was going to the physiotherapist to strengthen her hand and not for the pain. It was also put to the plaintiff that she told Dr Gupta on 6 November 2017 that “the thumb pain has since resolved” and to her general practitioner Dr Chand on 29 September 2017 that the “pain to thumb and fifth metacarpal settled”. The plaintiff denied this and said she still had pain in her hand. The plaintiff stated that she had suffered more pain to her right wrist since April 2017 and that pain to her wrist was getting worse. She denied that by September 2017 she had told Dr Chand that her pain in her thumb had ceased. She also denied that she told Dr Lin on 6 November 2017 (Exhibit 1 page 34) that the pain in her small finger had improved. The plaintiff said it had not improved. The plaintiff also said that her thumb pain had not ceased by this time. Accordingly, there is a substantial difference between the recorded notes and the plaintiff's recollection. I note that the plaintiff appeared to be an intelligent woman who had no difficulty in understanding questions in court and giving a careful and thorough response. She accordingly would likely have been a good historian with medical practitioners. The plaintiff said that by this time she was happy with the progress of the strengthening in her hand but not the pain.

29. The plaintiff was asked about her appointment with Dr Gupta on 6 November 2017. She agreed that this was the first specialist which she had seen in relation to her arm problems. However, she denied that Dr Gupta had accurately recorded the history provided to her of her “unloading an overhead compartment in a plane which suddenly gave and a bag fell on her right hand” (Exhibit A page 51). She denied that the accident had occurred this way or that she told Dr Gupta that the thumb pain had since resolved as is recorded in the doctor's report. She also denied that she had recovered from the injury and pain to her thumb by November 2017.

30. The plaintiff was asked questions about how she noticed the pain in her arm in late 2017. The plaintiff said that she noticed the pain whilst writing on the blackboard and undertaking general household duties. She said these tasks aggravated her hand and shoulder pain.

31. The plaintiff was then asked a number of questions suggesting that she had complained of pain not just to her right shoulder but to both her shoulders. The plaintiff initially said she denied complaining to Dr Bodel of pain in both shoulders and then said she could not recall it: T145.34-.39. She also denied that she had pain in both shoulders from 2016 to now. In his first report, Dr Bodel recorded the plaintiff's current complaints as follows:

“Ms Salih has pain over the top of the shoulders and at the base of the neck on the right hand side. That pain spreads over the back of the shoulder girdle to the scapula spine. This supra-spinatus muscle is the main area involved in the area of discomfort” (Exhibit A page 27).

53. The plaintiff confirmed that she had consulted a rheumatologist, Dr Stanley Seah. However, she appeared to disagree that she complained about pain in both shoulders to him and said she only complained of pain in the right shoulder: T146.15. She then inconsistently said that the pain was “mainly” on the right hand side: T146.25. The plaintiff agreed that she had been diagnosed with arthritis by Dr Seah. In his 8 February 2018 report, Dr Seah records a chronic six month history of “progressively worsening joint pain in both her shoulders and wrists, right worse than left” (Exhibit 1 page 197). He diagnosed the plaintiff as having clinical features of chronic inflammatory arthritis. The plaintiff said that she did not believe that Dr Seah's diagnosis was accurate and said that she thought that all of her problems stemmed from her hand pain.

54. The plaintiff could not recall complaining to Dr Bodel about pain over the top of both shoulders (see Exhibit A page 27). She also answered “possibly” to the suggestion that she had complained to Dr Porteous in relation to left and right shoulder pain (see Exhibit A page 39): T148.50. The plaintiff denied that the pain in her right thumb had recovered since the accident.

55. The plaintiff was then subject to an extensive cross-examination in relation to a claim for the loss of 31.5 work days as part of a past loss of wages claim. The plaintiff claimed these days were taken off by her from her work because of pain or illness arising from her injuries in the accident. The claimed days were set out in a document which was annexed to the plaintiff's Amended Statement of Particulars which was filed with leave on 2 October 2019 which was also made Exhibit 7 in the proceedings. The plaintiff confirmed the accuracy of that document and later said that there was a further day on 7 September 2018. She agreed that each and every one of the 31.5 days claimed was a day she had taken off work due to her injuries. The plaintiff said that she had regard to a diary in confirming the dates in Exhibit 7. This was described in a summary of the plaintiff’s leave history prepared by her employer, [XXX] College, as “personal leave”: see Exhibit 8. The plaintiff confirmed that the reference to “personal leave” was a reference to time where she called in sick.

56. It was put to the plaintiff that she was paid for all the personal leave taken including all of the leave recorded in Exhibit 7 which the plaintiff stated was due to illness arising from the accident. The plaintiff answered “possibly” to that suggestion. An analysis of the plaintiff’s leave payments in the context of her personal leave claims appears to confirm that: see the documents in Exhibit 6. In due course, the plaintiff said that her pay was the same when she took personal leave and she was considered a valuable employee. When it was put to her that she had not suffered any loss of earnings when she took personal leave she answered “possibly” before agreeing with the proposition. She also agreed that her employer had not asked her to repay any amounts where she had taken personal leave through illness or to attend medical appointments. When it was put to the plaintiff that it was not a requirement of her employer to provide a sick leave certificate if leave was taken, the plaintiff said that at the Auburn school she had to provide a written document setting out the reason for the absence but this was not the case at the Prestons campus.

57. In the lengthy cross-examination which followed, the plaintiff agreed that she took time off on occasions to take her mother to medical appointments. The plaintiff was also cross-examined to suggest that a number of the days which she took off, were really taken off by her for shopping and not for illness. The plaintiff denied that.

58. This issue is also relevant to the plaintiff's claim that her right shoulder condition is connected to the injuries suffered in the accident. My conclusion, following the extensive cross-examination on this issue, was that I was not satisfied that a number of the days were justified as being connected to the accident even if the plaintiff could otherwise claim for loss of salary on the days in circumstances where she was paid for the entirety of the personal leave and there was no suggestion that days taken meant that on other days of illness she had no sick leave to take which showed that she was out of pocket in any way. It is unnecessary to go through a consideration of each of the days in Exhibit 7 and the matters that were put to the plaintiff in cross-examination. However, the cross-examination by counsel for the defendant persuaded me that the claims of the plaintiff for some of the following days were not established or could only be justified if the plaintiff’s claim relating to her shoulder condition was accepted. All of these claims related to “personal leave” which the plaintiff asserted was required to be taken by her because of her injuries arising from the accident.

Date	Reason
24 July 2017	On this day the plaintiff saw Dr Suleman and had an x-ray. Despite the cross-examination suggesting the plaintiff undertook shopping on that day, in my view this justifies the day taken.
27 July 2017	Despite the plaintiff not seeing a doctor I accept her evidence that this related to the accident.
1 August 2017	The plaintiff did not see a doctor and said that the absence was either due to hand pain or migraines. I was not satisfied by the plaintiff’s evidence on this issue that it was connected to her injuries in the accident and I reject the claim. The assertion of leave possibly due to migraines did not appear to be connected to the accident.
11 August 2017	I allow the claim of half a day for this date as the plaintiff saw her physiotherapist on this date: Exhibit 1 page 167.
4 September 2017	There was no medical appointment for this day and the plaintiff appeared to undertake an extensive amount of shopping. Having regard to the cross-examination, I find that the plaintiff's claim for this leave was not established.
5 September 2017	The plaintiff saw Dr Suleman for an unconnected illness. However, she also saw her physiotherapist on that date: Exhibit 1 page 168. I allow the plaintiff's claim for this date.
18 September 2017	There was no doctor's appointment on this date and the plaintiff seemed to undertake an extensive amount of shopping on this date. Overall, I was not satisfied in the light of the cross-examination that this claim was connected to the accident and I reject it.
26 October 2017	The plaintiff was not seeing a doctor on this date. She accepted that she may have taken her mother to a medical appointment. Having regard to the cross-examination and the concession obtained I was not satisfied that this claim was established and I reject it.
31 October 2017	The plaintiff had an ultrasound to her right hand on this day with Dr McGlone: Exhibit 1 page 193. I accordingly allow the claim for half a day.
6 November 2017	The plaintiff had a doctor's appointment with Dr Lin on that day: Exhibit 1 page 34. I allow the claim to this date.
22 November 2017	The plaintiff had an ultrasound to her right shoulder on this date. This claim will depend on the claim relating to the right shoulder being allowed.
22 November 2017	There was no doctor's appointment on this day and the plaintiff undertook extensive shopping. I was not satisfied from the cross-examination in relation to this day claimed and I reject the claim.
7 December 2017	There was no doctor's appointment on this day but a number of the plaintiff’s payments on her bank account related to shops at Auburn which was near where the plaintiff worked. Overall, I accept the plaintiff's evidence that this was connected to her claim.
6 February 2018	This claim relates to the plaintiff's first appointment with Dr Seah: Exhibit 1 page 197. As this related to a suggestion of inflammatory arthritis but also a review of her whole condition, I allow the claim for this day.
8 February 2018	There was no doctor's appointment for the plaintiff on this day. The plaintiff said that she took her daughter to hospital on that day and accepted that the claim could be a mistake. I do not allow the plaintiff's claim to this day.
20-21 March 2018	The plaintiff said she was sick on 20 March 2018 but took her mother to a doctor's appointment on 21 March 2018. I reject the claim for 21 March 2018 but accept the plaintiff's evidence in relation to 20 March 2018.
5 April 2018	This related to an appointment with Dr Seah in relation to the suggestion of the plaintiff having arthritis: Exhibit 1 page 198. I reject the plaintiff's claim for this day.
1 May 2018	There was no doctor's appointment for this day. There are also a number of payments relating to the plaintiff being at Casula Mall. In the light of the cross-examination I reject the plaintiff's claim for this day.
17 May 2018	There was no doctor's appointment on this day but overall I accept the plaintiff's evidence that it related to her illness.
29 May 2018	The plaintiff did not have a doctor's appointment on this day but I accept her evidence that it related to her injury.
5 June 2018	I accept the plaintiff's evidence that the absence related to her injury.
18 June 2018	The extent of the shopping apparently undertaken on that day by the plaintiff would in my view negate the claim being linked to her illness in the absence of something like a doctor's appointment. In the light of the cross-examination I reject the claim for that day.
2 July 2018	There was no doctor's appointment on this day. In the light of the cross-examination concerning the plaintiff shopping on this day I do not accept that the plaintiff has established that this is connected to her injuries.
23 July 2018	I accept the plaintiff's evidence that this was linked to her injury.
31 July 2018	I accept the plaintiff's evidence that this was connected to her injury.
9-10 August 2018	This related to the plaintiff’s injection in her right shoulder and her instruction not to drive for 24 hours. The success of this claim relates to the plaintiff's claim concerning her right shoulder.
4 September 2019	The plaintiff gave evidence that her son was sick on this day. In the light of that evidence I do not accept that the plaintiff has established that her absence on this day was linked to her injury.
20 September 2018	The plaintiff gave evidence that she and her mother had an appointment on that day. In the light of the fact that her mother had a medical appointment and the plaintiff went with her to it I reject the plaintiff's claim in relation to that day.
28 February 2019	I accept the plaintiff's evidence that the day related to her injury.
29 April 2019	This relates to the plaintiff being absent for three days following shoulder surgery. The plaintiff said she could not move her arm which was still in a sling. The plaintiff's claim for these days depends on the outcome of her claim concerning her right shoulder.
13 June 2019	The plaintiff said that her mother had a medical appointment on this day. In the light of the cross-examination I do not accept the plaintiff has established the claim for this day.
18 June 2019	The plaintiff said that her mother had a medical appointment and also she had a physiotherapist appointment. As this was after the plaintiff’s shoulder operation I do not accept this claim.
20 June 2019	This is allowed as this was the date where the plaintiff saw Dr Spira for the purposes of a medicolegal report.
2 September 2019	The plaintiff stated that she was having physiotherapy on this day. This was after her shoulder operation. I do not allow the day.
17 September 2019	The plaintiff states that she was having physiotherapy on this day. This was after her shoulder operation. I do not allow this day.
23 September 2019	The plaintiff the states that she was having physiotherapy on this day. This was after her shoulder operation. I do not allow this day.

59. The plaintiff rejected the suggestions put to her that the days that she had claimed as set out in Exhibit 7 were a fiction and involved the plaintiff abusing her employer's generosity. The plaintiff also denied that by November 2017 the pain in her thumb had settled and she was having no ongoing thumb problems.

60. In re-examination, the plaintiff confirmed that her husband also used her Westpac debit card regularly, although there was only one card. The plaintiff said her income was more reliable and regular than her husband's income. She also stated that she frequently went shopping or had coffee with her husband in the later evening.

61. The plaintiff gave evidence that in her employment as a teacher at [XXX] College she was entitled to 15 sick days a year and if they were unused in the year they accumulated and carried over for later years.

62. The plaintiff said that when she had days off as personal leave from the College she was unwell and often in excruciating pain and not able to come to work. She then said she took Nurofen and often felt better in the afternoon and was then able to go to the shops to do necessary shopping. By this time the school day had largely completed and it was not appropriate in her view for her to go to school to complete her job for an hour or two.

63. Overall, the plaintiff struck me as a fairly honest witness who in general terms was doing her best to answer questions frankly and completely. However, the plaintiff clearly is of the view that all her problems physically are due to the accident on 31 October 2016 which, as I indicate below, I do not consider to be the position. The plaintiff also, in my view, exaggerated aspects of her evidence including the number of hours of domestic duties which she completed daily before the accident while she was working (the amount claimed appeared very unlikely for someone working full-time – see T59-60.33;), the extent of weeding and gardening duties which she undertook before the accident (having regard to the plaintiff's garden as shown in Exhibit 4, the hours claimed by the plaintiff appear unlikely and are inconsistent with the evidence of the plaintiff's husband – see T140-1 cf T231) and her claimed sick leave days (it is clear to me as set out above that a number of these days are not justified as being connected to the injury).

64. Accordingly, in my view I must exercise some caution in relation to the plaintiff's evidence particularly where it relates to the ongoing asserted deterioration in her medical condition.

Oral evidence of Mr Akay Salih

65. Oral evidence was given by the plaintiff's husband, Mr Akay Salih. Mr Salih stated he was a builder by profession and had trained as a carpenter.

66. He was asked questions about the accident and its surrounding events. In general terms, he confirmed much of the plaintiff's account. Mr Salih said he did not see the accident itself when the compartment door fell on the plaintiff's hand but said that she came to him holding her hand in distress and saying that the compartment door had fallen on her hand. Mr Salih said that the steward took all of the bags out of the compartment in question and put them in an overhead compartment next to the one involved in the accident: T219.43.

67. In cross-examination, Mr Salih confirmed that the plaintiff carried the backpack with the baby's prerequisites onto the flight herself. He said he did not see what she did with the bag: T226.1. He does not recall the baby crying before the incident or seeing his wife access the compartment before the incident: T226.5. As far as he is aware, when the plaintiff went to the compartment this was the first time that she had accessed it. After the accident, Mr Salih said that he got the bottle for the baby from the relevant compartment. He confirmed that he opened it and importantly, he also confirmed that it opened in “the normal fashion”. He said “Well, yeah, it just opened”: T226.50. He did not mention the compartment door falling suddenly or heavily when he opened it. Mr Salih stated that he got the bag from the overhead compartment and then attended to his son to feed him. Afterwards, he said he believes he kept the backpack next to him.

68. Mr Salih was asked a number of questions about domestic duties both before and after the accident. Prior to the accident, Mr Salih said that his wife did all the cooking, cleaning and other housework including vacuuming and mopping. After the accident, Mr Salih said that he undertook most of these activities. He said that his wife said to him that she could not do them because her hand was in too much pain. He said that the family mostly ate takeaway now (on two or three occasions per week – T228.38) but on two occasions per week his wife prepared meals, usually stir fried meals, for which he prepared the ingredients. He said he did it as cutting the vegetables was too hard for his wife.

69. In relation to the laundry, Mr Salih said that he did it at weekends whereas previously the laundry had been completed by his wife two or three times per week (cf the plaintiff who said four times per week: T59.49). He said this took him three to four hours per week: T221.15. He said that as washing was done less regularly, the children often wore their school uniform for two to three days.

70. Mr Salih said that his wife was of the view that he was not very good with the housework and this had created conflict between them. He said that he found the housework overwhelming and he was tired when he came home from work. He said before the accident his wife kept an immaculate house and that she was “very into” her cleaning and wanted the housework to be done perfectly: T222.1; T222.36. Mr Salih said that they could not afford to obtain a commercial cleaner which he understood would cost $140 to $150 per week: T222.11. He said that the family would rather spend the money on the children's schooling or the children’s other activities.

71. Mr Salih described the future in relation to domestic duties as “very difficult” as he was not very good at it and it had caused tension between them: T222.17.

72. Mr Salih said that he always did the lawns but now the garden was a mess as his wife had previously maintained it. His children occasionally helped with jobs but they are only young with the eldest being 10 years old.

73. In cross-examination, Mr Salih said that he was a self-employed builder and had been for 12 years. He said he did all types of building including maintenance, renovations and commercial building. He said he was trained as a carpenter. Mr Salih gave evidence that for the last two to two and a half years he had been building for himself as his brothers and he had inherited land from their father and he was building a factory on it. In that time he said that his other income was more limited although he still contributed to the family budget.

74. Mr Salih was asked in cross-examination about his wife's complaints of pain. He said that she had complained a lot about her pain including in her hand. He said he could not recall the plaintiff complaining about pain in her forearm but he did recall the plaintiff complaining about pain in her shoulder a few years after the accident: T228.1-.20.

75. In relation to his domestic duties, Mr Salih said in cross-examination that his wife cooked about twice a week and he prepared the ingredients which took him about 20 minutes to half an hour on each occasion. In relation to the garden, Mr Salih said that he spent about two hours per fortnight pruning but he also had to supervise the children as he was at the front of the house: T221.15-.42.

76. In re-examination, Mr Salih gave evidence that prior to the accident his wife cooked five times a week and they had takeaway food on the weekends: T234.24.

77. Mr Salih struck me as an honest witness. He made concessions where appropriate. I accept his evidence that he does a considerable portion of the domestic duties now when he is able to. He appeared to have some difficulty recalling the time his wife spent in outside duties before the accident: see T230.46-T231.21.

Oral evidence of Dr Bodel, Orthopaedic Surgeon

78. Oral evidence was given by Dr James Bodel, Orthopaedic Surgeon, who has provided two medicolegal reports on instructions from the solicitors for the plaintiff. These are discussed in further detail below in these reasons.

79. Dr Bodel was first taken to his second report dated 15 September 2019 where he stated in answer to question five on page 2 of the report (Exhibit A page 34) as follows: “No, the shoulder injury occurred as a result of the incident on the plane and not as a consequence of the injury to the thumb. The thumb and the shoulder both occurred at the same time, as I would understand it.”

80. Dr Bodel stated that he had answered the question incorrectly and the plaintiff’s shoulder pathology came on at a later stage rather than at the specific time of the accident: T167.44. Dr Bodel understood that the correct history was that the plaintiff's complaint was really the thumb and mainly the thumb side of the hand. The little finger side of the hand and the wrist were as he understood it not areas of acute injury at the time of the accident and the shoulder came on at some later stage: T168.1.

81. Dr Bodel was then taken to his first report at pages 6 to 7 (Exhibit A pages 29 to 30) where he stated:

“The injuries appear to have been soft tissue injuries involving the right wrist and thumb and consequential conditions involving the upper limb involving the right shoulder and possibly the neck … A definitive pathological diagnosis is not possible but there appears to be multiple soft tissue injuries caused by this accident”.

82. Dr Bodel stated that he understood that the injury the plaintiff had sustained in the accident was a soft tissue injury to her right thumb, wrist and hand area although there was a suggestion of a fracture to the fifth metacarpal. He noted that the plaintiff had no pain on that side of the hand where the small finger was. He agreed that the fifth metacarpal was the only non-soft tissue injury that was recorded in the early part of the plaintiff's history. He said much later there was an MRI scan of the right shoulder which indicated pathology in the shoulder, but that was in July 2018. According to that about 18 to 20 months after the accident there was evidence of bursitis but an intact rotator cuff which he described as “a relatively minor soft tissue injury type of pathology”. It was his view that there was potential for aggravation of the underlying asymptomatic early degenerative process in the shoulder by the periods of immobilisation associated with the injury management of the thumb and the hand in the early stages: T168.26-.42.

83. It was put to Dr Bodel that by his answer he had moved away from the statement that he made in his reports that the right shoulder problem was a soft tissue injury at the time of the accident. He agreed with that: T168.47. It was then put to Dr Bodel that in terms of the alleged fracture to the fifth metacarpal (the plaintiff's right small finger), one of the problems with the conclusion was that there was no complaint of pain in the area and it was suggested that that would tend to indicate that it was unlikely that the fracture occurred in the accident. Dr Bodel indicated that he would tend to agree with that suggestion. He said a better judgment could have been made on the issue if he had the opportunity to view the finger clinically at the time. He said that the records showed there was no initial complaint by the plaintiff in relation to the ulnar border side of the hand near the little finger: T169.4. It was put to Dr Bodel, in the light of comments from doctors, that it was most likely the suggestion of a fracture in the fifth metacarpal was an artefact due to a blood vessel. Dr Bodel said that he agreed in principle with that view and it was not uncommon as a blood vessel can create a line on an x-ray which could be mistaken for a fracture: T169.18. Accordingly, the doctor was of the view that the report of a fracture to the fifth metacarpal was likely an incorrect report.

84. Dr Bodel was asked whether he understood that the plaintiff sustained an injury to her wrist in the accident. He stated that he understood that the mechanism of the injury was to the base of the thumb, the palm of the hand and the wrist: T169.25.

85. Dr Bodel was asked to assume that the first complaint of symptoms anywhere else apart from the base of the thumb area by the plaintiff was recorded on 10 April 2017, approximately six months after the accident. He was asked whether this would cause him to be of the opinion that the wrist problem reported at that time was unlikely to be related to the effects of the accident. On the basis of that assumption, Dr Bodel stated that he accepted that it was a possibility that the plaintiff had a soft tissue injury to her wrist in the accident or she did not have such a soft tissue injury and that it was a “bit hard to say definitely”: T169.49. He agreed that it was not a major complaint if it had not been recorded in the earlier contemporaneous documentation.

86. Dr Bodel was then asked questions about the plaintiff's right shoulder. He was asked to assume that the plaintiff saw Dr Gupta, Orthopaedic Surgeon, who subsequently operated upon her shoulder on 6 November 2017 and that the pain in the shoulder was reported by the plaintiff to have started a matter of weeks before that. On that basis, Dr Bodel agreed that there was no injury per se to the plaintiff's right shoulder in the accident on board the plane: T170.11. Dr Bodel expressed the opinion that the problem in the shoulder may well be related to a period of the plaintiff not using her arm normally due to a period of immobilisation in a particular area. He said he was able to accept that an injury to the hand and the thumb could lead to an aggravation of a minor soft tissue problem in the shoulder: T170.18. However, he said that that was more common in an older age group and the plaintiff was at the bottom end of that age range.

87. Dr Bodel was asked to assume that the developing forearm pain on the right side of the plaintiff occurred in the early part of 2017 in the context of her caring for her children particularly her younger son. He was asked whether it would seem that the onset of shoulder pain shortly before November 2017 was unlikely to be related to any period of immobilisation of the plaintiff’s hand in the latter part of 2016. Dr Bodel agreed with that suggestion: T170.46.

88. Dr Bodel was taken to the “Summary of Injuries” on page 2 of his first report (Exhibit A page 25) and stated that these were his clinical findings and he was not saying that they were connected to the injuries sustained in the accident. He said they could or could not have been associated with the accident. He agreed that the recitation of current complaints on page 4 of his first report (Exhibit A page 27) was a recording by him of what the plaintiff told him about her current complaints. He also confirmed that the plaintiff told him that she had pain “over the top of the shoulders and at the base of the neck on the right hand side”: Exhibit A page 27; T171.19-.34 and T171.39.

89. Dr Bodel was asked about his finding of numbness and tingling in the whole of the plaintiff's right arm and whether there was any pathological basis for that: T171.36. Dr Bodel expressed the opinion that the complaint did not fit the normal dermatomal pattern and was not what he would normally expect: T171.42

90. Dr Bodel was then taken to his examination on page 5 of his first report (Exhibit A page 28) where he found that the plaintiff's grip strength was normal, her reflexes were present and equal, she did complain of diffuse tenderness but there was no wasting or pain on circumduction of the thumb.

91. Dr Bodel said that wasting was indicative of either loss of use or neurological problems and as neither was present the plaintiff was using her hand. He said the relevance of circumduction of the thumb was that it did not elicit a painful response from the plaintiff: T173.4. Accordingly, Dr Bodel agreed that with the exception of diffuse tenderness it was otherwise a normal examination of the thumb: T173.12. When asked whether his clinical findings would be consistent with his expressed opinion that the plaintiff suffered a soft tissue injury only to the thumb in the accident, Dr Bodel agreed that that was the “probable diagnosis”: T173.16.

92. Dr Bodel stated that usually at the plaintiff's age such a soft tissue injury to the thumb would involve an expected period of recovery in the eight to 12 week period: T173.21. He agreed that one way of interpreting Dr Gupta's opinion of 6 November 2017 that the plaintiff’s thumb pain had resolved was that she had recovered by a period of approximately 11 months after the accident: T173.29.

93. In relation to the suggestion of arthritis, Dr Bodel said that the plaintiff may well have had a generalised form of arthritic process which was unrelated to injury or accident and which should be assessed by a rheumatologist: T173.37. Dr Bodel said that he understood that the plaintiff was being assessed in relation to more generalised joint complaints rather than localised joint complaints: T173.49.

94. In re-examination, Dr Bodel was asked about his view that the shoulder problem happened later in time and may have been due to a lack of mobility of the arm. Dr Bodel agreed that that was a possible cause for aggravation of an underlying pathological process over time: T174.43. He also agreed that it could be associated with any form of immobilisation including the splint the plaintiff had on the plane or the one that was constructed after that: T174.47. Dr Bodel agreed that there was a “possibility” that with the plaintiff being unable to use the right hand and the forearm in a normal manner, she was putting an extra load further up the arm to the shoulder and this caused an underlying pathological process which may or may not be related to a generalised arthritic condition which was being further aggravated: T175.15-.24. He did not see it as being relevant that there were no previous symptoms disclosed: T175.27. He said that the “lack of symptoms is really largely irrelevant”: T175.27.

Boarding pass

95. The plaintiff tendered her boarding pass in her name for flight EK414 on 31 October 2016.

Economic loss records

96. The plaintiff tendered as part of Exhibit A her resume and an offer of employment from [XXX] College where the plaintiff worked as a primary school teacher, which refers to the plaintiff being offered a temporary fulltime appointment with effect from 14 June 2005.

97. The plaintiff also tendered her income tax returns for the years 2014 to 2018. These provided as follows.

Year	Gross	Net	After deductions (work)
2014	$83,559	$62,243	$57,856
2015	$90,792	$67,386	$64,404
2016	$95,515	$70,293	$68,488
2017	$33,364	$25,999	$25,120
2018	$Nil This seems to be incorrect as the plaintiff was in fulltime work during the year – see Exhibit 7

Plaintiff's medical evidence

Radiological evidence

Report of Dr Leung

98. In a report of Dr Anthony Leung dated 11 November 2016 following a CT scan of the plaintiff’s first metacarpal and thumb on the right, Dr Leung concluded that there was no evidence of a fracture demonstrated at the first metacarpal and in the bones of the right thumb. Dr Leung recorded the presence of a small undisplaced fracture at the dorsi-ulnar aspect of the base of the fifth metacarpal (small finger). He stated that this did not correspond to the site of pain and tenderness.

MRI of the right shoulder

99. In Exhibit A was an MRI report of the right shoulder dated 18 July 2018 of Dr James Linklater. Dr Linklater found a moderate thickening of the bursa and small bursal effusion, mild distal supraspinatus tendinosis without tear, no labral tear and no evidence of a capsulitis.

Injections

100. The materials include a number of reports of injections into the plaintiff’s thumb, hand and right shoulder.

Plaintiff’s treating records and reports

Report of Dr Chand, general practitioner

101. In the plaintiff's tender bundle is a report of Dr Chand, general practitioner, who first saw the plaintiff after she had an x-ray and CT of the right hand. Dr Chand found on examination tenderness over the right thumb on palpation and that the CT scan confirmed a small displacement fracture to the bone of the fifth metacarpal on the right hand. The doctor put the plaintiff in a hand cast for six weeks and in that time she was not able to do full duties. Dr Chand noted that the plaintiff had developed chronic pain to the right hand and shoulder and had consulted with the hand surgeon Dr Gupta and the rheumatologist Dr Seah.

102. There is also a referral by Dr Chand to Dr Gupta where he notes that the plaintiff was seen for physiotherapy off and on and although the pain to the thumb and right metacarpal settled, the plaintiff had pain to her right wrist since April 2017 and denied any new injury.

Report of Dr Gupta, hand surgeon

103. In a report dated 6 November 2017, Dr V Gupta, hand surgeon, noted that the plaintiff said that the thumb pain had resolved. However, the plaintiff complained of pain which was centred over the ulnar side of the wrist which radiates into the ulnar side of the hand and into the forearm. The plaintiff complained of tingling into the fourth and fifth fingers which affected her sleep as well as pain in the arm and shoulder.

104. Dr Gupta found some tenderness on examination in the wrist and right shoulder. He expressed the opinion that there was a functional problem with the right hand with compression neuropathy of the ulnar nerve as well as rotator cuff syndrome and supra-chromial bursitis without any frank tears. His diagnosis was:

“Right hand injury seven months ago with ulnar-sided wrist and hand pain and recent development of shoulder pain. Likely diagnosis ulnar nerve entrapment at the hand and rotator cuff syndrome of the shoulder.”

105. In a later report dated 20 July 2018, the plaintiff complained of persistent ulnar hand pain and right shoulder pain. Dr Gupta diagnosed significant right shoulder pain with weakness and impairment and right ulnar hand pain.

106. In a further report dated 24 September 2019, Dr Gupta made a similar diagnosis. He reported that the plaintiff remained in significant pain and has a very tender shoulder joint with joint impingement. He noted that the plaintiff was on the list to perform shoulder surgery.

Medico-legal reports

Reports of Dr Bodel, Orthopaedic Surgeon

107. As stated above, the plaintiff tendered two reports of Dr James Bodel, Orthopaedic Surgeon. Dr Bodel significantly qualified aspects of his opinions in these reports in cross-examination.

108. In his first report dated 4 February 2019, Dr Bodel set out the plaintiff's complaints of pain: over the top of the shoulders and at the base of the neck on the right hand side, pain in the front of the right shoulder, pain that radiates down the right arm, numbness and tingling generally in the whole of the right arm involving all five digits and pain at the base of the right thumb. The plaintiff made no complaint of pain over the ulnar border of the right hand. The plaintiff said she was taking Nurofen and Panadol and using ice packs and heat packs.

109. On examination, Dr Bodel noted the plaintiff had a restricted range of shoulder movement on the right side with generalised tenderness over the superior aspect of the shoulder in the area of the trapezius muscles and the supra-spinatus. He noted mild tenderness over the rotator cuff anteriorly. Dr Bodel also referred to the radiological investigations. He noted there was no clinical sign of localised pathology at the base of the fifth metacarpal.

110. Dr Bodel diagnosed soft tissue injuries involving the right wrist and thumb and consequential conditions involving the upper limb, extending to the right shoulder and possibly the neck. He had earlier described the mechanism of the injury as a hyperextension of the region of the right arm and a hyperextension of the wrist as well as a strain along the whole of the right arm causing pain in the thumb and the hand.

111. Dr Bodel stated:

“The diagnosis and prognosis here are difficult. A definitive pathological diagnosis is not possible but there appears to be multiple soft tissue injuries caused by this accident. Her prognosis is guarded because she is still symptomatic at this stage nearly 2 1/2 years after the injury.”

112. Dr Bodel was of the opinion in his first report that there was a direct causal link between the injury as described by the plaintiff and her ongoing complaints. He noted that there was no definite indication of aggravation of a pre-existing abnormality. He was of the view that the plaintiff may struggle with work in the longer term but was currently coping. He also noted that the plaintiff was booked in for an arthroscopic decompression in the region of the right shoulder which he regarded as reasonable and necessary treatment for the injury. He said that the plaintiff would require physiotherapy intermittently as well as domestic assistance for heavy household maintenance and cleaning activities and “ongoing domestic assistance indefinitely”, although he recommended that the plaintiff be formally assessed by an occupational therapist.

113. In his second report dated 15 September 2019, Dr Bodel was more definite. He expressed the opinion that the plaintiff suffered an injury to the right thumb as a result of the accident which was confirmed by the MRI scan of the right thumb on 15 November 2016 which shows soft tissue oedema in the region of the right thumb but no definite fracture. He also noted the fracture at the right fifth metacarpal which he said he found “a little difficult to correlate as her main complaint was at the radial side of the hand and the thumb and not on the little finger side of the hand” but expressed the opinion that the fracture appeared to be a fresh fracture in the films that he had seen. He also was of the view that the plaintiff suffered an injury to the right shoulder in the accident because of the mechanism of how the accident occurred. He thought that it was unlikely that there was an aggravation of an underlying degenerative condition and saw clinical evidence of rotator cuff pathology and bursitis and tendinitis which he was of the view was caused by the injury. Dr Bodel expressed the opinion that the need for shoulder surgery arose as a consequence of the pathology in the region of the shoulder and that it was causally related to the incident. Again, these views were heavily qualified in Dr Bodel’s oral evidence.

114. After considering the opinion of Professor Spira, briefed by the solicitors for the defendant, Dr Bodel expressed disagreement with him that the injuries were to the thumb and that domestic assistance was not needed. Dr Bodel states as follows in his report:

“The mechanism of the injury in my view was a compression injury to the thumb and a traction injury to the arm. This has caused the soft tissue injuries described above and the ongoing disabilities are in part due to that injury but also in part due to the lengthy period of immobilisation which has slowed down her recovery.”

Reports of Dr Porteous, occupational physician

115. The plaintiff relied on two reports of Dr Andrew Porteous, occupational physician. In his first report dated 5 February 2019, Dr Porteous noted the plaintiff's complaint that the pain was first in the base of the thumb and then spread to involve the medial wrist and then over the next year spread up the arm to involve the right shoulder and neck area. The plaintiff complained of pain at the right base of the thumb, right neck pain and right shoulder pain. She also complained of reduced sensation from the right mid upper arm through to the right wrist with a feeling of pins and needles in the wrist and medial hand.

116. In relation to the claimed fracture of the right metacarpal as disclosed on the CT scan Dr Porteous said this:

“A CT scan suggested a fracture of the base of the fifth metacarpal but there was never tenderness there and this is considered an error … Unfortunately the pain did not settle in the right thumb and it spread to involve the medial wrist and then up the right arm to involve the right upper arm, the right shoulder and the right neck.”

117. In his diagnosis, Dr Porteous was of the opinion that the plaintiff more likely than not had a musculo-ligamentous sprain of the joints of the right thumb. As to the further injury he said as follows (Exhibit A page 41):

“Given the reported then spreading pain she plausibly had a traction injury to the thumb peripheral nerves in the area or a traction injury to the right cervical plexus. Subsequently, as result of this she developed spreading pain in the right arm, shoulder and neck most suggestive of a neurological related pain disorder. Commenting on these is outside my area of expertise and a pain specialist opinion will be required. Today, there was restricted right shoulder range of motion consistent with an underlying bursitis and rotator cuff pathology.”

118. Dr Porteous was of the view that there was a clear causal connection between the accident and the plaintiff's right thumb injury and the pain relating to that. He was of the view that the gradual spreading of the pain up the arm over a year suggested the probability of some form of pain disorder and that this was outside his area of expertise. He made a number of recommendations for the plaintiff to attend a pain clinic, for analgesics, to see a psychologist, to see an occupational therapist and regularly to see her general practitioner. He was of the view that the plaintiff had a reduced capacity in work competing on the open market. Having regard to her restrictions, Dr Porteous was of the view that the plaintiff would reasonably require professional domestic and home care support for activities that she is restricted from if she did not have gratuitous support.

119. In the course of the trial, the plaintiff relied on a further report of Dr Porteous dated 17 September 2019. The second report appeared to be prepared with no further consultation with the plaintiff.

120. Dr Porteous stated on page 2 of his second report that when he saw the plaintiff, the history and examination suggested that she had more likely than not had musculo-ligamentous strain of the joints of her right thumb. On page 6 of the report, after considering the report of Dr Spira, Dr Porteous confirmed that his view was that the plaintiff had a soft tissue injury to the right thumb. Dr Porteous was of the view, having reviewed the Dr Spira's report, that there was a clear temporal association between the plaintiff’s reported current thumb pain and the restrictions with it and her reduced capacity in her thumb. He confirmed that the treatment to date, including the pain relief and physiotherapy, has clearly been required as a result of the chronic right thumb pain condition. Dr Porteous expressed the opinion that the need for assessment at a pain clinic and for a course of treatment was reasonable given the chronic thumb pain and associated reduced capacity regardless of the other pain reported. He added that the chronic thumb pain and restrictions reasonably resulted in a requirement for psychologist assessment and likely psychotherapy to assist with management. The right thumb pain alone would also require regular review by the plaintiff's general practitioner long-term and because of limitations, the chronic right thumb pain would on its own in Dr Porteous' view, result in the need for required domestic assistance as recommended by him.

121. Dr Porteous, while commenting that the plaintiff's history was consistent with the pain spreading up her right arm, expressed the view that it was outside his area of expertise and a pain specialist opinion was indicated to be required to comment on the subsequent right upper limb chronic pain. He repeated this in a number of places in his second report.

122. On page 2 of his second report, Dr Porteous said that there was no evidence when he saw the plaintiff that she had specifically suffered an injury to her right hand as a result of the subject accident as opposed to her right thumb, although he noted that the plaintiff reported that after initially injuring the thumb, the pain spread to involve the hand and wrist. Dr Porteous said he was unclear of the cause of this. Dr Porteous said he was unable to diagnose aggravation of an underlying degenerative change in the right shoulder. In conclusion, Dr Porteous' view was there was a soft tissue injury sprain to the right thumb which had become chronic. He was of the view that the substantial cause of the ongoing thumb condition was the accident.

Evidence on behalf of the defendant

Mr Danker’s affidavit

123. The defendant read an affidavit of Christopher Danker affirmed 30 September 2019. In his affidavit Mr Danker stated that he was an engineer working for the defendant Emirates and had worked in aircraft maintenance since March 1985. He said he had been working with Emirates since 2014 based in Dubai and since December 2018 in Melbourne.

124. Mr Danker said that in his role he supervised the inspection of aircraft post-flight. He said the procedures of the defendant included for the purser on board an aircraft to complete an aircraft cabin defect log sector record. He said the purpose of the log was to record all issues encountered with equipment in the aircraft cabin during a flight. He said the log was the defendant's record of any faulty or defective equipment in an aircraft cabin and copies of the log were retained by the defendant for its records.

125. Mr Danker said the practice of the defendant was for engineers to inspect the defendant's aircraft after each flight and to review the log and attend to issues. In that way the log was a record of any faulty or defective equipment in the aircraft cabin and of any repairs made.

126. Mr Danker annexes to his affidavit two documents. The first document is a copy of the log for flight EK414 from Dubai to Sydney. The defect log did not record any defect in the overhead compartment in question. An apparent computer-generated log for the plane for the relevant flight also did not disclose any defects to the overhead compartment.

The defendant’s Medical Evidence

Radiological evidence - x-ray of right thumb

127. In the general practitioner notes is a reference to an x-ray report of Dr F Wong dated 2 November 2016. Dr Wong found no fracture or dislocation of the plaintiff's right thumb.

MRI right hand

128. In the defendant’s court bundle exhibit was an MRI report of the plaintiff's right hand by Dr Eugene Ng dated 15 November 2016. Dr Ng noted a minor oedema representing either muscle bruising or a strain of the muscle from recent trauma, minor post-traumatic joint synovitis, no significant marrow oedema involving the metacarpals to implicate a bone bruise or stress fracture particularly at the first and fifth metacarpals, and soft tissue change seen around the first metacarpal joint in keeping with a capsular injury. The view was expressed that there did not appear to be significant abnormality seen of the flexor or extensor tendons of the thumb.

Report of Dr McGlone

129. Part of Exhibit 1 was a report of Dr Sarah McGlone dated 31 October 2017. Following an x-ray of the right hand, Dr McGlone reported no residual deformity of the base of the fifth metacarpal and that the appearance of the bones was normal. In relation to an ultrasound of the plaintiff's right hand, no soft tissue deformity was noted at the plaintiff's previous site of symptoms and there was no evidence of synovitis or oedema.

Treating records and reports

Referral of Dr Chand

130. In the materials was a referral by Dr Chand, the plaintiff's general practitioner, to a physiotherapist dated 12 November 2016. The referral referred to assessment and “organising splint/cast for fracture to base of fifth metacarpal”. This was the asserted fracture which is disputed in a number of the later reports.

General practitioner notes

131. The defendant tendered the complete record of the plaintiff's general practitioner notes at the Astley Medical Centre up to April 2018. There does not appear to be any relevant pre-accident history relating to the plaintiff’s thumb, hand or right arm. The consultation notes relevantly included the following:

1. 2 November 2016 – Dr Leones: “Injury Monday on flight returning to Sydney door of hand carry bags suddenly dropped open onto her right thumb when she unlocks it painful right thumb icepack while on flight still painful and tender x-ray no fracture soft tissue injury rest analgesia”;

2. 10 November 2016 – Dr Lin: “For results of x-ray of R thumb – advised NAD 10 days ago door of overhead plane cabin suddenly dropped onto R thumb still painful over the R first MC, not improving, worsening…swelling improved still painful to hold and carry avoiding use of the R thumb due to pain no swelling range of movements of thumb full but painful”;

3. 12 November 2016 – Dr Chand: The plaintiff was referred by Dr Chand to Dr Gupta, hand surgeon, for opinion. The consultation notes include “clinically patient is tender to base of first metacarpal patient is not tender at base of fifth metacarpal.”;

4. 14 November 2016 – Dr Chand: “MRI of RT hand splint to come off before MRI … D/W Dr Wong – regarding CT results Dr Wong suggests if base of fifth metacarpal is not tender it is most likely an artefact – blood vessal [sic]”;

5. 18 November 2016 – Dr Chand: “MRI results discussed no fracture but/capsular R injury to first metacarpal referred to physio happy to refer to hand surgeon if she prefers but she will wait”;

6. 23 January 2017 – Dr Escio–Musson: “Back in October 2016 had injury to R hand was told has tissue damaged base from CT scan still flaring up”;

7. 30 January 2017 – Dr Suleman: “Trauma to right thumb three months ago, referred to physio as still painful”;

8. 10 April 2017 – Dr Leones: “Still with pain along thumb and radial wrist; and mid wrist pain no recent injury known with post-traumatic synovitis on MRI November 2016 had functional splint”;

9. 24 July 2017 – Dr Suleman: “Surgery consultation last year hurt her R hand had a fracture last year in Emirates flight still very sore, not coping.

Examination:

Tender forearm medial aspect

ROM OK

Neurovascularly OK”;

10. 2 August 2017 – Dr Suleman: “Surgery consultation doing physios for the forearm pain PT had one session only PT feels tight on forearm muscles range of movements is OK”;

11. 29 September 2017 – Dr Chand: this is a referral to Dr Gupta in relation to the injury with the referral saying that the pain to the thumb and right metacarpal settled and there was new pain to the right wrist since April with the plaintiff denying a new injury;

12. 24 October 2017 – Dr Lin: “Last yr fracture of the R hand fifth MC

Didn't see hand surgeon then

Was in cast for 6 weeks

Pain improved but low grade pain persisted

Sees hand physio regularly.

Range of movements of hand/wrist full

A lot of hand use as have young kids.

Still tender over the R thenar eminnace [sic – eminence – palm muscles]”;

13. 6 November 2017 – Dr Lin: The plaintiff reported seeing a hand physiotherapist with there being no improvement. There was also a complaint of low-grade pain over the fifth metacarpal.

Physiotherapy reports

132. Included in Exhibit 1 were a number of physiotherapy reports following assessments from 12 November 2016 of the plaintiff by physiotherapists at Precision Physio. The referral was initially because of the diagnosis of a fracture at the base of the fifth metacarpal. On 12 November 2016, the physiotherapist made a splint for the right thumb and immobilised the fifth metacarpal.

133. The physiotherapy records are detailed and show continual treatment of the plaintiff up to October 2017. The records of the physiotherapists show a referral from Dr Suleman dated 24 July 2017 for assessment of the plaintiff's complaints relating to right forearm pain and right wrist pain.

[13]  By majority the Court held that both a failure to act as well as an affirmative act could constitute an event. It held that the rejection of an explicit request for assistance would be an “event” or “happening”. The minority held that a failure to act cannot amount to an event or happening. In reasoning the minority cited with approval the Victorian Supreme Court of Appeal decision of Qantas Ltd v Povey (‘Povey’) as authority that a failure (to warn of the risk of DVT) does not amount to an event.

[14]  The Court also recognised that any injury is the product of a chain of causes. What is necessary is that any one link in the causal chain must be unusual or unexpected. The Supreme Court proceeded on the assumption that the attendant’s conduct was unusual or unexpected and did not determine that issue because the trial finding that the conduct was unusual or unexpected was not the subject of challenge on appeal.

[15]  Subsequent to the decision in Husain, the case of Povey came before the High Court of Australia. Povey dealt with whether the occurrence of a deep vein thrombosis (‘DVT’) as a result of a flight amounted to an accident. Argument as to what constituted “an accident” within Article 17 was again advanced from an acceptance that the definition in Saks was to be adopted. The appellant argued that conditions and procedures for passengers constituted a combination of acts and omissions that amounted to an accident. These were said to involve cramped seating conditions, impediments to leaving seats and encouragement to remain seated, the provision of alcohol and caffeine and the failure to warn about the risk of DVT.

[16]  The Court accepted that an ‘accident’ may happen because of omissions as well as acts or by some combination of acts and omissions. It was also no part of the inquiry to ask whether the event or happening was intentional or accidental. Rather, it said the concept of an accident:

…invites two questions: first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected?

[17]  The correctness of the decision in Husain was not challenged in Povey. The Court said questions of identification of an event as canvassed in Husain did not arise because the appellant passenger’s case was that nothing happened in the conditions or procedures that was unusual or unexpected. The Court said that a concept of ‘failure to warn’ as an omission was unhelpful, as it imported concepts of a common law duty to warn that were not found in the treaty and otherwise were not referable to some standard of behaviour against which to measure any alleged failure. By reference to the two questions set out by the Court, as reproduced in paragraph 16, the inquiry is limited to what happened not to ‘what might or could or perhaps should have happened’.

[18]  The following principles can be summarised from these cases, apply to determine whether an ‘accident’ has occurred:

(a) A passenger’s own internal reaction to the usual, normal and expected operation of the aircraft is not an accident;

(b) An accident that is a cause of an injury is different to the occurrence of injury itself;

(c) It is necessary to identify an event or happening that is external to the passenger;

(d) Identifying an event requires flexible application. An event may arise from acts, omissions or from a combination of acts and omissions;

(e) The event must be unexpected or unusual;

(f) There may be a chain of events that lead to injury;

(g) It is sufficient that some link in the chain of causal events was an unexpected or unusual event external to the passenger;

(h) If the event is described as inaction or as a failure to do something, the absence of action will not amount to an event unless it can be shown to be an omission by reference to some legal standard requiring action;

(i) Common law notions of actions or failure to act arising from a duty of care owed to passengers are irrelevant;

(j) Whether an accident has occurred is a question of fact.”

176. In Di Falco, Forbes J referred to the decision of the High Court in Povey v Qantas Airways Ltd (2005) 223 CLR 189. In that case, the High Court considered the similarly worded Article 17 of the Warsaw Convention. The High Court followed the decision of the United States Supreme Court as to the meaning of “accident” in Article 17 in Air France v Saks (1985) 470 US 392. The majority of the High Court stated the following in paragraphs 32-33:

“An “accident”?

[32]  As was pointed out in Saks, the Warsaw Convention was drafted in French by continental jurists. And as an international treaty, it would be wrong to read Montreal No 4 as if it reflected some particular cause of action or body of learning that is derived from, say, the common law. It was said in Saks that “the French legal meaning of the term 'accident' differs little from the meaning of the term in Great Britain, Germany, or the United States”. Both in French, and in Anglo-American legal discourse (and, we would add, so too in Australian legal discourse) “accident” may be used to refer to the event of a person's injury or to the cause of injury. By contrast, “accidental” is usually used to describe the cause of an injury rather than the event and is often used as an antonym to “intentional”.

[33]  In Art 17, “accident” is used to refer to the event rather than the cause of injury. And that event is one which Art 17 requires to be located at a place (“on board the aircraft”) or otherwise to be fixed by reference to circumstances of time and place (“in the course of any of the operations of embarking or disembarking”).”

177. The High Court majority later determined the meaning of “accident” in the Convention in paragraph 36 of its reasons as follows:

“[36]  No doubt as Saks indicates, the concept of “accident” is not to be overrefined. It is a concept which invites two questions: first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected? And as already pointed out, showing only that while on board or in the course of embarking or disembarking a passenger sustained some adverse physiological change does not identify the occurrence of an accident.”

178. Later the High Court stated as follows in paragraph 42:

“[42]  The references to failure are unhelpful because they suggest that the only point at which some relevant warning could or should have been given is on board the aircraft. But if some warning was necessary or appropriate, it is not apparent why it should not have been given at a much earlier point of making arrangements to travel by air, rather than on board the aircraft. Further, reference to failure is unhelpful because it diverts attention from what it is that happened on board to what might have, could have, or perhaps should have happened there and why that should be so. If, as earlier indicated, it is appropriate to ask “what happened on board?” the answer in this case is that the appellant alleges that nothing unexpected or unusual happened there.”

179. Applying the test in Povey as stated by the High Court and the summary of Forbes J in Di Falco, in my view there was no “accident” in the present case within the Convention. An “accident” that is a cause of an injury is different to the occurrence of injury itself. It is necessary to identify an event or happening that is external to the passenger which may arise from an act or omission or from a combination of acts or omissions and where the event must be unexpected or unusual. A passenger’s own reaction to the usual, normal and expected operation of the aircraft or any part of it is not an accident. While the plaintiff claims that something unexpected or unusual did happen by the door falling heavily onto her hand, I have found based on the affidavit of Mr Danker, the documentary evidence and the evidence of the plaintiff's husband that the door was not defective or faulty. Accordingly, the thumb was injured by the door dropping in the usual, normal and expected way. That is not an “accident” within the Convention. What it is, is merely the occurrence of an injury itself.

180. I note that the High Court decision in Povey has been followed with approval in numerous later authorities: see South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 at [294]; Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216 at [52], [60]-[62] and [66]-[67] per Beazley P (with whom Payne JA agreed). Povey was also followed by Wilson J in Dibbs v Emirates [2015] NSWSC 1332 at [10]-[14]. At [14], her Honour noted that the evidentiary onus is on the plaintiff to prove on the balance of probabilities that the plaintiff suffered injury that was caused by an unexpected or unusual event or happening that was external to her.

181. Having regard to the findings which I have made above, the plaintiff has not satisfied this onus and accordingly there was no “accident” within Article 17.1 of the Montréal Convention. The claim of the plaintiff accordingly does not succeed.

Contributory negligence

182. Under Article 20 of the Montréal Convention if a carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. Section 9H of the 1959 Act sets out the mechanism by which contributory negligence is to be assessed under Article 20 of the Convention. Under s 9H(2) of the 1959 Act the court must determine the damages that would have been recoverable if there was no limit on the amount of damages fixed by or in accordance with the Convention and there had been no negligence on the part of the passenger or consignor and then reduce the damages to the extent the Court thinks just and equitable having regard to the share of the passenger in the responsibility for the damage.

183. As stated above, the CLA also in my view applies to the extent it is consistent with the 1959 Act.

184. Sections 5R and 5S of the CLA provide as follows:

“5R   Standard of contributory negligence

(1)  The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2)  For that purpose:

(a)  the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b)  the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S   Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”

185. In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom Meagher and White JJA agreed) stated as follows in paragraphs [92]-[94]:

“92.  The question of whether a person has been guilty of contributory negligence is to be determined objectively – whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing).

93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant’s damages by reason of contributory negligence.

94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant’s position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]-[15] (Basten JA).”

186. Therefore, whether a person has been guilty of contributory negligence under the CLA is to be determined objectively. Did the plaintiff take that degree of care for his or her own safety that an ordinary reasonable person would take? The principles in ss 5B and 5C of the CLA apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury.

187. The risk of harm in the present case is of a person injuring their hand by the overhead compartment door being opened and falling down onto a part of their hand.

188. The relevant background facts in the present case on this issue are:

1. It was the middle of the flight at night at the time the accident occurred;

2. The cabin of the aeroplane was dark other than the usual safety nightlights;

3. The plaintiff's child had begun to cry and she needed to access the child’s bottle in order for him to be fed;

4. There is no evidence that there was any light available to be put on immediately near the overhead locker;

5. The manner in which the plaintiff indicated that she opened the locker, which I accept, would appear to be a normal and sensible method which a reasonable person in the plaintiff's position would have taken.

189. Even if, as I have found, the locker opened in a slower fashion than the plaintiff gave evidence about due to the hydraulic operation of the door, I am not satisfied that the plaintiff took any less care for her own safety than an ordinary reasonable person would take in the circumstances. The plaintiff said she was facing the locker in the darkened cabin (T112.2). It seems to be the case that the locker caught her thumb and injured it. The risk of injury would appear to be insignificant. There is nothing in the facts of the case which leads me to a conclusion that there is any contributory negligence which should reduce any damages which I find for the plaintiff.

Causation

190. Sections 5D and 5E of the CLA provide as follows:

“5D   General principles

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

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

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

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

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

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

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

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

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

191. The plaintiff therefore always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. The determination of factual causation in accordance with s 5D(1)(a) of the CLA involves the application of a “but for” test of causation, being a determination that in accordance with the section, that negligence was a necessary condition of the occurrence of harm and a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19].

192. In the present case, I have found there was no “accident” within the Convention. If I am in error in that finding, I am satisfied that but for the “accident” the plaintiff would not have injured her thumb. I have found above that the accident did not cause a fracture of the fifth metacarpal joint. The medical findings which I have made above lead to the conclusion that only those injuries which I have found were caused by the accident in the sense that but for the accident they would not have occurred. In my view, there is not sufficient medical expert evidence to establish that but for the accident the plaintiff's wrist, arm and shoulder injuries would not have occurred.

Damages

Introduction

193. I have found there was no “accident” within Article 17.1 of the Convention. If I am found to be in error on this issue, I proceed to assess damages. These are to be assessed under the CLA as I have referred to above.

Non-economic loss

194. Under s 16(1) of the CLA, no damages may be awarded to a plaintiff for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Under s 16(3) of the CLA, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table set out in that section.

195. The maximum that may be ordered is $658,000 but that is only to be awarded in a most extreme case: s 16(2); see also the Civil Liability (Non-Economic Loss) Amendment Order 2019 amending the amount from 1 October 2019.

196. The proper approach to this issue is set out in Lloyd v Thornbury, above, at [161]-[162] and [167]-[172]. I have made my factual findings above in relation to the plaintiff’s injuries arising from the accident as established by the evidence. The assessment which the court makes is an evaluative one in which precision cannot be arrived at. It is not suggested in the present case that any loss of expectation of life occurred as a result of the injury or any disfigurement. The relevant issues are the pain and suffering and loss of amenities of life to the plaintiff as a result of her injury. I have found that the plaintiff injured her right thumb, did not injure her small finger and that pain resulted in her hand which has continued to cause her some pain and restrictions in the hand. This requires the plaintiff to take analgesics and anti-inflammatories to assist her with the pain and continued physiotherapy assistance. Dr Bodel’s report shows that the plaintiff continues to use her hand which is not disputed.

197. The defendant submits the appropriate percentage is not greater than 5% whereas the plaintiff claims a much higher figure no doubt based on the claim that all the arm conditions relate to the injury.

198. Taking the above matters and submissions into account, in my view the severity of the non-economic loss as a proportion of a most extreme case is 15% which equates to 1% of the maximum amount that may be awarded for non-economic loss. Although initially attracted to even a lower figure, the fact that this has impacted upon the plaintiff's work, her domestic duties and has caused her continuing pain over a lengthy period warrants the figure in my view which I have arrived at. Accordingly, I allow $6,500 which is 1% of the maximum which may be awarded rounded down as required.

Past out-of-pocket expenses

199. The plaintiff submitted that she was entitled to $14,643.88 in relation to past out-of-pocket expenses: Exhibit E. The defendant conceded $1,540 but disputed the remainder submitting that the plaintiff’s thumb and hand injury arising from the accident had resolved, at the latest, by 6 November 2017.

200. The resolution of this dispute relies heavily on my medical findings as set out above. I consider each amount claimed in the table below taking into account the submissions made orally and in writing.

No.	Date	Sum	Allowed/Not allowed
1.  Nepean Hospital (Surgery)	$8,304.88	As this relates to the plaintiff’s right shoulder condition, it is not allowed having regard to my medical findings that the shoulder condition was not caused by the air injury – Not allowed.
2.  Nepean Hospital (Nerve Conduction)	23/9/19	$565.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
3.  Nepean Hospital – physiotherapy	$1,012.00
23/4/19	$125.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
1/5/19	$125.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
16/5/19	$125.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
28/5/19	$125.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
9/7/19	$128.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
2/9/19	$128.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
23/9/19	$128.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
8/10/19	$128.00	Not allowed – there is no evidence it relates to the hand/thumb – see Exhibit E. Having regard to the date of the shoulder surgery, it more likely relates to it.
4.  Precision Physiotherapy
12/11/16-5/9/17	$560.00	Agreed by parties. Allow $560.
23/9/17-28/10/17	$425.00	Defendant agrees $212.50 being 50% of $425 claimed. The plaintiff concedes that the treatment provided is 50% attributable to the plaintiff’s shoulder injury and 50% attributable to the plaintiff’s thumb and hand injury. Allow $212.50.
5.  Castlereagh Imaging MRI right shoulder	$170.00	Allow Nil as related to right shoulder.
6.  Dr Manish Gupta	$535.80
6/11/17	$167.25	Agreed. Allow $167.25.
5/7/18	$160.00	No evidence of reason. Not allowed.
20/7/18	$160.00	No evidence of reason. Not allowed.
24/9/18	$160.00	Relates to right shoulder. Not allowed.
11/7/19	$160.00	Relates to right shoulder. Not allowed.
7.  Dr Stanley Seah	$95.80	Allow as reasonable to investigate problem initially as submitted by plaintiff.
8.  Medicare	$2,975.40
Dr A Leung	$209.00	Allow $209 agreed.
Dr Wijetunga	$51.30	Allowed. X-ray of hand and wrist and forearm. Allow $51.30.
Dr Leones
2/11/16	$37.05	Allowed agreed.
10/4/17	$37.05	Allowed agreed.
28/7/17	$37.05	Allowed as included hand.
Dr Escio-Mussen
23/1/17	$71.70	Chest pain and anaemia. Not allowed as unrelated.
Dr S C McGlone
31/10/17	$103.65	Allowed. Agreed.
31/10/17	$33.05	Allowed. Agreed.
Dr Chi-Vien Duong
28/10/17	$37.05	Migraines. Not allowed as unrelated.
Dr V Chand
12/11/16	$71.70	Allowed. Agreed.
14/11/16	$71.70	Allowed. Agreed.
18/11/16	$37.05	Allowed. Agreed.
2/2/17	$71.70	Not allowed. Unrelated.
29/9/17	$71.70	Not allowed. Forearm and wrist.
17/10/17	$71.70	Allowed. Referral to Dr Seah.
21/10/17	$37.05	Allowed. As partly related to hand.
Dr S Suleman
30/1/17	$37.05	Not allowed. Unrelated.
18/2/17	$49.00	Not allowed. Unrelated.
24/7/17	$37.05	Allowed as referral for x-ray including hand.
2/8/17	$37.05	Not allowed as relates to right forearm.
5/9/17	$37.05	Not allowed. Unrelated.
Total allowed: $1,869.95

201. Accordingly, I allow the amount of $1,869.95 in relation to past out-of-pocket expenses. It will be seen that I have rejected a number of the claims which, on the evidence, in my view relate to the plaintiff’s upper arm or shoulder which I have found on the medical evidence to be unconnected to the accident.

Future out-of-pocket expenses

202. These have to be considered in the light of the limited medical injuries and restrictions which I have found. Some amount should be allowed for the purchase of analgesics which the plaintiff needs, for pain review on a six monthly basis by her general practitioner for a limited period and for some physiotherapy assistance. The plaintiff also needs to be reviewed by a pain specialist in relation to her thumb and hand as is recommended by Dr Porteous. I do not find the other recommendations of Dr Porteous to be established having regard to the limited restrictions which I have found. With continued physiotherapy, the plaintiff's hand condition should improve, although it has lasted for some duration. I am not persuaded that there is any necessity for psychological treatment arising purely out of the thumb and related hand injury.

203. Taking into account all of these matters, I would allow an amount of $7,000. I do not see any need established to make any allowance for attendance upon an orthopaedic specialist as claimed in the plaintiff's schedule of damages.

Past economic loss

204. Compensation for loss of earning capacity for a plaintiff is awarded because there is a diminution in the plaintiff's earning capacity which is or may be productive of financial loss. The plaintiff must prove the loss for which compensation is claimed: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80].

205. The plaintiff claims 31.5 days of “personal leave” from her usual employment because of her injuries at $280 net per day plus past superannuation at 11% totalling $9,790.20. This is, in effect, sick leave. The defendant claims that nothing should be awarded under this head.

206. The evidence establishes that whenever the plaintiff has taken time off from work because of alleged pain or restrictions for any reason that her employer [XXX] College has paid her salary in full. Accordingly, the plaintiff has not suffered any loss financially in relation to lost salary. The general principle is that the plaintiff should not recover anything as there has been no financial loss even where sick leave has been taken: see Paff v Speed (1961) 105 CLR 549 at 567; Graham v Baker (1961) 106 CLR 340 at 343, 346; Redding v Lee (1983) 151 CLR 117 at 122.

207. There was no evidence before me as to the plaintiff’s current sick leave balance: cf Exhibit 7. The evidence is that the plaintiff has taken substantial sick leave since the accident and her employer has still paid her. The plaintiff receives 15 days of sick leave per year and it accumulates if she does not take it: Exhibit C. Exhibit 7 suggests that as the plaintiff has taken off 31.5 days as claimed since the accident she must be in credit in relation to her sick leave as more than 3 years have expired since the accident.

208. There is no evidence that the plaintiff may “cash out” sick leave if she leaves her employment or that there is any likelihood she will leave her position. However, as stated in Luntz, Assessment of Damages for Personal Injury and Death, 4th Edition, at paragraph 8.3.4: “In the more usual case where there is no financial benefit accruing from not using up an entitlement to sick leave, then the loss is the value of the chance that the plaintiff might fall ill in the future and be compelled to take leave without pay. The value will, of course, vary with the circumstances.” This is relevant here because of my findings in relation to the plaintiff’s right shoulder.

209. On this basis I would make some allowance for the chance of a future loss of benefits due to some sick leave being already used because of the accident which the plaintiff would not otherwise be able to use. Doing the best I can having regard to my analysis of the claim for loss of days above, I would allow $1,554 (4 days x $280 plus 11% superannuation). This also allows for the possibility that the sick leave of the plaintiff may never be exhausted through use because of other injuries or conditions.

Future economic loss

210. There is no evidence of the plaintiff having any pre-existing problems with her thumb or hand. Under s 13 of the CLA, the court must satisfy itself about any assumptions about future earning capacity or other events on which an award of damages is to be based, unless it accords with the claimant’s most likely future circumstances but for the injury as found by the Court: see Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [110]-[115]; Gulic v Angelovski [2018] NSWCA 161 at [34]-[38].

211. In my view, but for the accident the plaintiff would have returned to work at the [XXX] College and probably worked with infant classes as opposed to primary school classes of children. In my opinion she would most likely be working fulltime as she is at present. The plaintiff in my view is likely to continue in the future working at [XXX] College. Although the plaintiff expressed some concern in relation to her employment for the days that she has taken off, her employer appears to have been very supportive and will likely remain so. I also think it likely that the plaintiff, if she has any particular difficulty with working, will more likely have this because of her shoulder and apparent arthritis difficulties and less likely because of her hand and thumb with which she seems to be managing.

212. The plaintiff gave evidence that she has not succeeded in two promotion applications for higher positions which she has made. However, there was no evidence on which I could rely which suggested this was due to her injuries. Nevertheless, it is expected that practically speaking schools are probably more likely to promote people as teachers who have a good attendance record and have no difficulties teaching across a range of ages.

213. The plaintiff asserts that $57,000 should be allowed as a buffer for future economic loss pursuant to Penrith City Council v Parkes [2004] NSWCA 201. The defendant says that no such amount should be awarded.

214. In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity at [79]-[81] as follows:

“79  I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.

80  Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).

81 It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the Court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.”

215. Accordingly, the award of a buffer or cushion is reserved for a situation where the precise loss of the plaintiff is difficult to determine and there is a “smallish risk” that the plaintiff’s secure employment prospects will come to an end or the plaintiff’s capacity has been clearly reduced, but how this will inhibit his or her earning capacity in consequence of the injury suffered by the plaintiff is uncertain. See also Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [6]-[9].

216. The plaintiff here has a clear ongoing injury according to my medical findings. In my view, it has limited her earning capacity to some degree as she is limited in her teaching activities, in the classes she can take and her role on the sporting committee. It has also caused some absences.

217. In my view, there is a possibility that the plaintiff will suffer some economic loss in the future as a result of her injuries and a reduction in her capacity within the above authorities to indicate that a buffer should be awarded. However, this is small having regard to the attitude which the plaintiff’s employer has taken and her ability so far to cope with some difficulty with her thumb and hand difficulties. Accepting that the award is to a degree impressionistic, I allow $25,000 only under this head.

Past domestic assistance

218. Nothing is claimed for past domestic assistance.

Future commercial assistance

219. The evidence establishes that between the plaintiff and her husband with occasionally a small degree of assistance from their young children, the domestic duties and cooking are undertaken for the family.

220. The plaintiff's husband describes the plaintiff as not being satisfied with the way he does the housework and that this has caused friction. He said the plaintiff previously kept an immaculate house and liked it kept perfectly: T222.36. The court does not award amounts to keep an immaculate perfect house but only assistance to a reasonable standard when established.

221. In Miller v Galderisi [2009] NSWCA 353 the Court of Appeal set aside an award of damages for commercial domestic assistance where it held that there was no satisfactory evidence that the gratuitous assistance being provided to the plaintiff would cease. The Court of Appeal held that there needed to be evidence that the commercial care was necessary and that there was “a need for commercial domestic assistance likely to arise in the future”: at [18]. A similar question was asked by Macfarlan JA (with whom Meagher and White JJA agreed) in Smith v Alone [2017] NSWCA 287. Macfarlan JA referred to asking the question whether the commercial care sought was “necessary” (at [73]) and whether commercial care would be “needed in the future”: at [75].

222. It seems from the evidence that the plaintiff is able to undertake simple cooking and very simple domestic tasks and that otherwise the plaintiff's husband does the work.

223. I also need to take into account that no amount should be allowed for any injury or disability to the plaintiff's arm or shoulder which I have found is unconnected to the accident.

224. Evidence was given by the plaintiff and her husband about the tasks which the husband undertook.

225. The plaintiff gave evidence that before the accident she completed, it appeared, over seven hours of domestic duties per day even when she worked. In my view, this likely involved a degree of exaggeration.

226. In my opinion, the evidence given by the plaintiff's husband was more reliable on this issue. I accept that the plaintiff undertook all the domestic tasks prior to the accident within the house including cooking and cleaning and some gardening with the plaintiff's husband doing the lawn and probably heavier gardening tasks. I also accept that the plaintiff's husband undertakes a substantial amount of domestic duties now, although there is heavy reliance on less cleaning, less washing and the purchase of takeaway food.

227. I must also take into account the possibility of the plaintiff's hand improving with the continued physiotherapy which I have allowed for.

228. The plaintiff seeks two hours per week at $47 per hour until age 68 which amounts to $77,268. The defendant says nothing should be awarded. In my view, the appropriate rate is $47 per hour: see Exhibit D. I also need to heavily discount any amount because of the likelihood that many of the plaintiff’s difficulties arise because of her arm and shoulder pain and restrictions.

229. Taking all of these matters into account, I would have allowed one hour a week of commercial assistance for a closed period of five years. This would allow a more thorough cleaning of the house every fortnight for two hours and for a period which would enable the plaintiff’s hand to improve to undertake more domestic duties. This totals $10,880 (231.5 × 47). Any greater amount would, in my view, not take into account the plaintiff's other injuries (including the right shoulder injury) which I have found have not been established as arising from the accident and the fact that the domestic duties are already being done to a less than satisfactory standard. I accordingly find that there is a reasonable need to have a more thorough cleaning of the house every fortnight to take into account the more limited availability of the plaintiff’s husband and his performance of tasks at a lesser standard than is reasonable.

Disposition

230. For the above reasons I accordingly would have allowed the following amounts:

Non-economic loss	$6,500.00
Past out of pocket expenses	$1,869.95
Future out of pocket expenses	$7,000.00
Past economic loss	Nil but allow $1,554 re lost sick leave availability
Future economic loss	$25,000.00
Past domestic assistance	Nil
Future commercial assistance	$10,880.00
Total	$52,803.95

231. I therefore make the following orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs as agreed or assessed.

3. Any application to vary the costs order in (2) above should be made within 14 days.

4. Exhibits to be returned in 28 days.

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Decision last updated: 29 November 2019