Tsiaras v SPI Management Pty Ltd

[2023] VCC 699

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No.  CI-20-01885

SOPHIE TSIARAS	Plaintiff
v
SPI MANAGEMENT PTY LTD (ACN 140 301 622)	Defendant

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JUDGE:	HER HONOUR JUDGE ROBERTSON
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22 and 23 February 2022
DATE OF JUDGMENT:	9 May 2023
CASE MAY BE CITED AS:	Tsiaras v SPI Management Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 699

REASONS FOR JUDGMENT

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Subject:TORT

Catchwords:              Negligence – occupier’s liability – scope of duty – breach – causation – contributory negligence – left shoulder injury after falling on dance floor – streamers on dance floor – damages

Legislation Cited:      Wrongs Act 1958, s14B, s28, Part X, s47, s48, s49, s51, s52, s62

Cases Cited:              Youkhana v Di Veroli [2010] NSWCA 322; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd[2013] NSWCA 443; Jones v Dunkel (1959) 101 CLR 298; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Kocis v S E Dickens Pty Ltd [1998] 3 VR 408; Erickson v Bagley [2015] VSCA 220; Vairy v Wyong Shire Council (2005) 223 CLR 422; Dovurov Pty Ltd v Wilkins (2003) 215 CLR 317; Derrick v Cheung (2001) 181 ALR 301; Wyong Shire Council v Shirt (1980) 146 CLR 40; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431; Allied Pumps Pty Ltd v Hooker [2020] WASCA 72; Erickson v Bagley & Anor [2014] VCC 2126; Neindorf v Junkovic (2005) 80 ALJR 341; Benic v State of New South Wales [2010] NSWSC 1039; Shaw v Thomas [2010] NSWCA 169; Adeel’s Palace v Moubarak (2009) 239 CLR 420; Strong v Woolworths Ltd (2012) 246 CLR 182; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; TC v State of New South Wales [2000] NSWSC 292; Tabet v Gett (2010) 240 CLR 537; Lithgow City Council v Jackson (2011) 244 CLR 352; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; McGiffin v Fosterville Gold Mine Pty Ltd [2022] VSC 665; Stavrakijev v Ready Workforce & Anor [2018] VSC 690; Kalos v Goodyear & Dunlop Tyres (Aust) Pty Ltd & Anor [2016] VSC 715; Sutton v Victorian Alps Wine Company Pty Ltd [2014] VCC 2183; Graham v Baker (1961) 106 CLR 340; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594; Alcoa Portland Aluminium Pty Ltd v Victorian Workcover Authority (2007) 18 VR 146

Judgment:                  Judgment for the defendant. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC with Ms C Moore	Slater and Gordon Lawyers
For the Defendant	Mr E Makowski	Meridian Lawyers

Table of Contents

Introduction

Factual background

The claim

Issues

Submissions

Plaintiff’s submissions

Defendant’s submissions

Witnesses and evidence adduced at trial

The Plaintiff

Medical history

Circumstances of injury

Injury and treatment

Impact of injury

Pain

Employment

Activities of daily living

Personal care

Sleep

Gardening

Grandchildren

Driving

Holidays

Sophie Koskos

Michael Tsiaras

Joanna Tsiaras

Plaintiff’s medical evidence

Dr Craig Mills, orthopaedic surgeon

Report dated 17 September 2019

Report dated 28 October 2020

Report dated 8 June 2021

Dr Terence Saxby, consultant orthopaedic surgeon

The defendant

Missing witnesses

Credit

Findings

Factual issues relevant to liability

Was the dance floor slippery?

Were there streamers on the dance floor when the Plaintiff fell?

Were the streamers slippery and difficult to break?

Where was the Plaintiff when she fell?

Did the plaintiff’s heel become tangled in streamers?

Did the Plaintiff slip on a streamer?

What injury did the Plaintiff suffer when she fell?

What were the effects of the Plaintiff’s injuries?

Legal principles and analysis

Duty of care

Identification of risk

Breach of duty

Reasonable foreseeability of risk of harm

Was the risk of injury ‘not insignificant’?

Would the exercise of reasonable care on the part of the Defendant have involved taking the precautions the Plaintiff alleges were not taken in this case?

Did the exercise of reasonable care on the part of the Defendant require taking the precautions by removing streamers within minutes of midnight?

Did the Defendant fail to take the precautions?

Was the Defendant’s conduct unreasonable?

Causation

Contributory negligence

Failing to take any or any adequate care for her own safety

Failing to keep a proper lookout

Failing to watch where she placed her feet

Failing to hold onto the dancer next to her for support

Dancing when she was already suffering from a pre-existing hand and/or arm injury

Damages

Non-economic loss

Past economic loss

Future economic loss - loss of earning capacity

Past gratuitous care

Future gratuitous care

Past medical care

Future medical care

Conclusion

HER HONOUR:

Introduction

1Very soon after midnight on New Year’s Eve, 31 December 2018 (“the said date”), Sophie Tsiaras (“the plaintiff”) was injured when she fell while dancing on the dance floor at Stars International Reception and Function Centre, a function centre located in Preston (“the premises”).  SPI Management Pty Ltd (“the defendant”) was the occupier and responsible for the management of the premises.  The plaintiff alleged her feet became tangled in streamers on the dance floor, causing her to slip and fall.  Alternatively, she slipped on a streamer, resulting in her fall.

Factual background

2A great deal of the factual background to the plaintiff’s injury was not in dispute. 

3The plaintiff had attended the New Year’s Eve function at the premises with her husband, her sister, and their friends.  She had attended the premises three times before that night, including a previous New Year’s Eve dinner dance in 2017/2018.

4There were between 300 and 400 people at the premises.

5There was a band playing.  The band was positioned on a stage at one end of the function room.

6There were between thirty and forty tables with place settings for eight to ten people at each table. 

7Tables were arranged around a circular dance floor.

8The surface of the dance floor was wooden floorboards.

9The tables were set with cutlery and glasses and on each table there were streamers and “pop-up things” that were “shaped like a champagne bottle” with a string which, when pulled, released small streamers.

10There were no streamers on the dance floor prior to midnight.

11The plaintiff first danced at about 9.30pm and then danced again later in the evening.  There were no issues with the surface of the dance floor when she was dancing before midnight.

12At about 11.40pm, the band began to play slow waltzes.  The plaintiff got up to dance with her husband, her sister, and their friends.

13As midnight approached, the lights were dimmed, and the band started counting down to midnight from ten to zero.  When the countdown reached one, the lights were turned off momentarily.  The clock struck midnight.  People kissed each other and said Happy New Year. 

14Patrons at the function threw streamers from various directions onto the dance floor.

15After the lights were turned back on again, the band started playing.  The plaintiff’s husband, her sister and their friends returned to their table.  The plaintiff remained on the dance floor as she had seen her friend, Ms Sophie Koskos (“Ms Koskos”).  They had worked at different shops close to each other at Epping Plaza.  The plaintiff had not seen Ms Koskos outside work since she had ceased working at Epping Plaza.  She did not even know her surname.  They had not attended the function together and just happened to see each other on the dance floor. 

16They began dancing.

17Not long after they began dancing, the plaintiff fell and injured herself.

18At the time she fell, the plaintiff was wearing black, ‘Supersoft’ brand, high-heeled sandal shoes, with a squared toe which had been purchased from Myer.  They were three to four years’ old, and they had a 6-centimetre heel.

19There was no evidence of liquid spillage or food on the dance floor.

20There was no evidence the plaintiff had been drinking alcohol.

The claim

21The plaintiff alleged that the defendant owed her a duty as occupier pursuant to s14B(3) of the Wrongs Act 1958 (“the Act”), and a common law duty, to take all reasonable steps to prevent her suffering harm at the premises by either entangling her feet in, or slipping on, streamers on the dance floor soon after midnight on New Year’s Eve. 

22The Particulars of Negligence alleged that the defendant was negligent by:

(a)   failing to ensure the safety of the plaintiff in circumstances where the defendant knew, or ought to have known, that the plaintiff was at risk of injury;

(b)   failing to exercise due care for the safety of the plaintiff in all the circumstances;

(c)   failing to take any, or any adequate, precaution to prevent the presence of the streamers on the dance floor from causing harm to the plaintiff;

(d)   failing to ensure that the streamers did not pose a tripping hazard to patrons at the time of the incident;

(e)   failing to remove the streamers from the floor, including the dance floor, before patrons started dancing on the said date;

(f)    failing to provide any, or any adequate, training to staff in relation to keeping the floor, including the dance floor, free of tripping and/or other hazards;

(g)   failing to have any, or any adequate, system for keeping the floor, including the dance floor, free of tripping and/or other hazards;

(h)   providing streamers to patrons when it knew, or ought to have known, that the streamers represented a tripping/slipping hazard, particularly if they were on the dance floor surface;

(i)    permitting patrons to throw streamers on the floor surface and in particular, the surface of the dance floor;

(j)    failing to undertake any, or any adequate, risk assessment of the dance floor surface on the said date;

(k)   failing to adequately inspect the dance floor surface on the said date;

(l)    failing to provide any or any adequate warning to the plaintiff of the tripping/slipping hazard represented by the streamers.

23The defendant did not admit that:

(a)   there were numerous streamers and party poppers on the dance floor of the venue when the incident occurred; 

(b)   when the plaintiff was dancing, her foot became tangled in streamers on the dance floor, causing her to slip and fall to the ground; or that

(c)   as a result of the incident, the plaintiff suffered injury. 

24Further, the defendant denied the plaintiff’s alleged injuries were caused by its negligence. 

Issues

25The issues that arose for my determination were:

(a)First, whether the dance floor was slippery;

(b)Second, whether there were streamers on the dance floor at the time the plaintiff fell;

(c)Third, whether the streamers were slippery and difficult to break;

(d)Fourth, where the plaintiff was when she fell;

(e)Fifth, whether the plaintiff’s heel became tangled in streamers on the dance floor, causing her to slip and fall; whether the plaintiff slipped on a streamer, causing her to fall, or whether her fall occurred for some other reason;

(f)Sixth, whether, as a result of her fall, the plaintiff suffered injury and, if so, what injury and what was the impact for the plaintiff;

(g)Seventh, whether there was any negligence and/or breach of statutory duty on the part of the defendant;

(h)Eighth, if the defendant was negligent, whether there was any contributory negligence on the part of the plaintiff;

(i)Ninth, if there was negligence on the part of the defendant, whether it was a cause of the plaintiff’s injuries;

(j)Tenth, if there was negligence on the part of the defendant which was a cause of the plaintiff’s injuries, what damages ought to be awarded.

Submissions

Plaintiff’s submissions

26It was submitted on behalf of the plaintiff that her feet became tangled in, and/or she slipped on, streamers and/or party poppers which were present on the dance floor shortly after midnight.

27The plaintiff submitted the defendant owed her a duty as occupier pursuant to s14B(3) of the Act and at common law to take all reasonable steps to prevent her suffering harm at the premises.

28Streamers on the dance floor posed a risk of injury which was reasonably foreseeable, not insignificant and which could have been guarded against had reasonable precautions been taken by the defendant.  Relevant precautions could have included having no streamers on the dance floor; requiring any streamers which were on the dance floor to be cleaned up before dancing recommenced after midnight; ensuring a risk assessment was undertaken and a system was in place to train staff in relation to keeping the floor free of slipping and tripping hazards, and/or providing warnings to patrons about the slipping and tripping hazards. 

29The plaintiff submitted the defendant failed to take any precautions and thereby breached the statutory and common law duty of care it owed.

30Further, that the defendant’s negligence caused the plaintiff’s injuries.

31Because of the defendant’s negligence, it was further submitted the plaintiff sustained loss and damage.  The plaintiff quantified the damages she claimed as:

(a)   $175,000 for general damages;

(b)   $43,940 for past gratuitous care;

(c)   $50,000 for future gratuitous care; 

(d)   $3,000 for past medical expenses;

(e)   $15,000 for future medical expenses; 

(f)    $12,129 for past economic loss; and

(g)   $15,000 for future economic loss. 

32Finally, the plaintiff submitted she was not guilty of contributory negligence. 

Defendant’s submissions

33The defendant accepted that it owed a duty as occupier of the venue pursuant to s14B of the Act and at common law but said that it had not breached the duty.

34The defendant submitted that the presence of streamers on the dance floor did not pose a risk of injury.  It was not reasonably foreseeable the plaintiff would slip or trip in the way she did.  There was no expert or other evidence the streamer(s) were slippery.  They broke easily. 

35Even if there was a risk of injury which was reasonably foreseeable, the risk of it arising was objectively insignificant.  There had been no prior complaints of injury or incidents in the previous fifteen years and there had been no change to the defendant’s systems after the plaintiff’s fall.  There was no evidence from which any inference could be drawn there had been previous accidents or complaints.  It was not open to the Court to fill gaps in the evidence by drawing an inference and concluding that uncalled evidence about prior accidents or incidents would have been damaging to the defendant.[1]

[1]        Youkhana v Di Veroli [2010] NSWCA 322 at paragraph [19]

36Because the probability of the risk of a person slipping on a streamer materialising was so low, a reasonable occupier would not have been required to take any steps to guard against it.  Reasonableness did not require a response from the defendant and just because preventative action could have been taken, did not mean it was required to be taken.  On an objective assessment, looking prospectively, the defendant was not negligent, by permitting people to have and throw streamers after a countdown to midnight on New Year’s Eve and to not take the precautions suggested by the plaintiff.

37If the defendant breached the duty of care that it owed to the plaintiff, the plaintiff’s accident and subsequent injuries were not caused by her foot becoming tangled in streamers on the dance floor.

38Finally, if the defendant was negligent and its negligence caused the plaintiff’s accident and subsequent injuries, the plaintiff was guilty of contributory negligence.

39In the event the plaintiff’s claim succeeded, the defendant submitted:

(a)   past economic loss should be limited to the six-month period to June 2019, after which any loss was the result of the impact of the COVID-19 pandemic;

(b)   no future economic loss should be allowed because the plaintiff retained her work capacity.  The plaintiff’s evidence was she would continue to work.  Her pre-and-post-accident earnings demonstrated that the plaintiff’s earnings have remained the same.  Additionally, there was no evidence from an occupational physician or other relevant expert to support the plaintiff’s claim; 

(c)   Any award of damages for gratuitous attendant care should be disallowed because of the variations in the evidence of the plaintiff’s husband, Michael Tsiaras (“Mr Tsiaras”) and the plaintiff’s daughter, Joanna Tsiaras (“Ms Tsiaras”) as to the plaintiff’s level of activity.  Further, there was a lack of independent expert evidence to support the plaintiff’s claim from an appropriately qualified expert with relevant specialised knowledge.  The only expert evidence was provided by an orthopaedic surgeon.  Based on Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd,[2] although not objected to, because the expert opinions on economic loss lacked foundation, they were inadmissible and, if admitted, should be given no weight; 

(d)   No allowance should be made for future medical expenses because, based on the opinions of Dr Mills and Dr Saxby, there is no ongoing need for outpatient review by a general practitioner, physiotherapist or pain specialist and the likelihood of further surgery improving the plaintiff’s condition is low.  In any event, the amounts claimed are not reasonable.

[2] [2013] NSWCA 443

40The defendant did not make any submission as to an appropriate allowance for general damages for pain and suffering.  It was noted the plaintiff had experienced a good recovery.  There had been no recent complaints of pain in her shoulder.  She does not use significant pain medication and has been discharged from physiotherapy.  She enjoys her work, her grandchildren, travel, and is still able to drive.  Further, she leads a relatively active life.

Witnesses and evidence adduced at trial

41Evidence was given at trial by the plaintiff, the plaintiff’s friend, Ms Koskos, Mr Tsiaras and Ms Tsiaras. 

42Various medical reports, x-rays and radiology reports in relation to the plaintiff’s medical history and the nature of the plaintiff’s injury were tendered on her behalf.  The Plaintiff’s Interrogatories and Defendant’s Answers (consolidated version) were also tendered, as was an Ambulance Patient Care record dated 1 January 2019 and an Ambulance Handover and Emergency Discharge Document (extract) dated 1 January 2019. 

43The plaintiff also provided to the Court a document titled “Plaintiff’s summary of matters agreed between the parties (revised)”. Counsel for the defendant accepted that the matters contained within that document were agreed.[3]

[3]        Transcript (“T”) 248, Lines (“L”) L28 – T249, L4

44The defendant tendered a pair of super soft high-heeled shoes (black) and payslips prior to the Plaintiff’s accident on 1 January 2019. It did not call oral evidence.

The Plaintiff

45The plaintiff was born in August 1957 and was sixty-four years old at the date of the trial. 

46She is married to Mr Tsiaras, and together they have four adult children and three grandchildren, aged three, two and nine months.

Medical history

47In evidence, the plaintiff was asked about her medical history. 

48In approximately 2001, the plaintiff sustained a prior injury to her left shoulder requiring surgical insertion, and later removal, of metal plates.  The plaintiff said the injury resolved. This was not seriously challenged. 

49She also suffered from asthma.  She had been prescribed preventative medication and in October 2016, she said she experienced a shortness of breath.  Her evidence was her asthma did not impact her ability to work.

50On 9 October 2015, the plaintiff attended her general practitioner, who recorded a complaint of “right lower back pain-radiate to … right foot”.[4]  The reason for the contact was noted as being “Sciatica - L5/S1 disc prolapse”.[5]  The plaintiff’s evidence was she had attended her general practitioner from time to time for back pain, but she was not troubled by any back pain immediately prior to the accident.  In cross-examination, she confirmed her lower back pain had resolved before her fall.

[4]        Exhibit E, page 142

[5]        Exhibit E, page 142

51The plaintiff also gave evidence about experiencing right foot, left foot and ankle pain.  Again, her recollection was she was not troubled by any foot or ankle pain before the accident. 

52The plaintiff was cross-examined about her left ankle and foot pain.  It was suggested that the pain and swelling was worse than the plaintiff recalled.  The plaintiff agreed she experienced foot pain and swelling underneath her ankle in 2016.  Her recollection was it was left foot pain rather than right foot pain. 

53She accepted that on 18 May 2016, she underwent an ultrasound of the right foot, revealing a partial thickness tear in the right second toe.  She said she hurt her toe on the racks at Myer but made a complete recovery.

54She also agreed that on 29 October 2016, she “fell off the car and injured her foot”[6] such that she could not put weight on it.  She could not recall which ankle was hurt, but she agreed with the description of “swelling, bruised, ankle sprain”.[7]

[6]        T69, L29-31

[7]        T69, L29-31

55The plaintiff accepted that on 22 November 2017, she experienced “left lateral ankle pain and swelling and mid back pains,”[8] but she did not recall being told by her general practitioner she had osteoarthritis in her left ankle.

[8]        Exhibit E, page 136

56A note from the Our Lady of Rivergum Medical Centre records dated 5 December 2017 of “C[T] thoracic spine-wide spread OA” and “C[T] left ankle--? 7 x 5mm diameter area of full thickness chondral loss at the tibiotalar joint”[9] was put to the plaintiff.  The note recorded that the plaintiff was advised about the “[importance] of wearing good orthotic shoes” and to take “Emu oil capsules - pt to start on maximal dose”.[10]  The plaintiff was unable to recall the doctor telling her to wear good orthotic shoes.

[9]        T70, L14-19

[10]        Exhibit E, page 136

57The plaintiff was also asked about a further note in the Our Lady of Rivergum Medical Centre records on 28 August 2018, explaining “Left ankle pain and swelling”, “[range of movement] normal” and “Left Ankle pain-? gout”.  The plaintiff’s response was she recalled having some left ankle issues and swelling which continued intermittently to the date of the trial, but she could not recall her left ankle causing her pain.  She specifically had no memory of her left ankle  swelling or causing her pain on the night of the New Year’s Eve party.   Her evidence was simply, “It was just swollen.  It would just swell if I was standing for too long.”[11]  She agreed it continued to happen “sometimes,” but could not say how often.

[11]        T71, L22-23

Circumstances of injury

58The plaintiff was asked about the circumstances of her injury.  She said when she was injured, she was dancing the “Syrto,” a Greek dance like the Zorba.  She denied the dance was a Hasaposerviko which is a faster dance. 

59The plaintiff described the dance moves involved in a “Syrto”.  She explained how one person holds the hand of the person beside them, and dancers form semi-circles.  Everyone moves together, left to right, and then forwards and backwards in an anti-clockwise direction.  The dance involves some jumping movements at the beginning of the dance.

60The plaintiff said she was positioned at the front of the line, facing away from the stage. Ms Koskos was positioned to her left.  The plaintiff’s left hand was holding Ms Koskos’ right hand and the plaintiff’s right hand was freely moving. 

61As the plaintiff was dancing, she was not looking down at her feet.

62She took about four steps and then put her left foot in front of her.  When she stepped back and put weight on her left foot, she said she “felt something on the heel of my shoe and then as soon as I stepped back and put the weight on my left foot, it just collapsed under me and I fell flat on my back”.[12] The plaintiff thought, when she stepped backwards, she made contact with something and slipped. Her left knee hit the stage and her feet ended up on the right-hand side of the room.  She landed on her back.

[12]        T34, 24-29

63Her evidence was she fell very close – about two feet[13] – from the stage.  She marked on a photograph with the letter “X” the position where she fell.  The position of her feet was marked with an “F”.  The plaintiff said her feet were closer to the stage and her knee hit the stage.

[13]        T43, L4-7

64When she fell, the plaintiff said she did not feel any swelling and she did not have any problems with her left ankle.

65At the time the plaintiff fell, the plaintiff said she saw streamers near the end of her feet.  She demonstrated the position of the streamers in relation to her shoe. 

66She described how streamers covered much of the dance floor when she fell.  With her hands, she showed how the streamers were intertwined and twisted, bound, and overlapping.[14] The plaintiff also threw a streamer during the trial and demonstrated how it unwound in a coil fashion.[15]

[14]        T66, L10-16

[15]        Demonstration by plaintiff of how streamers unwound

67After she fell, the plaintiff said she could not move and her “shoulder was just agony”.[16]  She also had pain and swelling from her knee and some pain to her neck.

[16]        T84, L27-31

68The plaintiff recalled a man called “Spiro,” who worked at the function centre, asking if she was alright.  She had no recollection of telling anyone what had happened.  She did not complain about the streamers.  She was in pain and did not want to talk to anybody.  She did not see Ms Koskos move any streamers. She did not move any streamers away from her foot.

69An ambulance was called and arrived.  The Ambulance Patient Care record dated 1 January 2019 noted that the plaintiff reported she “slipped on pile of confetti falling to the ground causing injury LEFT humerus.  Pt denies headstrike and LOC, stating that this is an isolated injury.  Pt has not consumed alcohol and reports 10/10 pain to LEFT arm.  Pt difficult to assess deformity as is noted to be splintering ar[m] however neurological finding intact.  AV for assessment and management.”[17]  It also noted in the scene findings “Pt lying supine on dance floor – Alert, family members in attendance”.[18]  The plaintiff did not dispute she had a conversation with the ambulance officer or that there was a note that she had slipped on confetti.[19]  However, she said, when cross-examined, there was no confetti.[20]  The ambulance officer gave her a green whistle – an inhaled analgesic to control pain – so they could lift her onto a chair.

[17]        Exhibit E, page 110

[18]        Exhibit E, page 113

[19]        T94, L19 – T96, L29

[20]        T96, L19-31

Injury and treatment

70The plaintiff was transferred to the Austin hospital.

71In the Ambulance Handover and Emergency Discharge Documentation, there was a note that the plaintiff “remembers slipping on the floor”.[21]  Under the heading “Clinical Summary” there was a further note, “Fell dancing – slipped on streamer.  Painful L[eft] shoulder”.[22]  

[21]        Exhibit E, page 115

[22]        Exhbiti E, page 120

72X-rays were taken of her shoulder.  Because she was in so much pain, the plaintiff was given a general anaesthetic and her shoulder was repaired.  She was discharged on 1 January 2019 with a sling which she wore for six to eight weeks.  She took Panadol and some Panadeine Forte for her pain.  She underwent physiotherapy at the Austin Hospital and started hydrotherapy treatment as well.

73The plaintiff then did not attend her general practitioner until 19 January 2019. That was a consultation in relation to ongoing pain to her left knee.  She was prescribed various medications including Augmentin Duo and Targin for pain.  She was referred for an x-ray and ultrasound of her left knee.

74The general practitioner’s notes made no mention of streamers, and the plaintiff did not have a memory of telling her general practitioner about streamers.

75The plaintiff remained off work as a sales’ assistant at women’s clothing store, Noni B, until 24 June 2019.

76Subsequently, in April 2020, the plaintiff experienced some pain for a couple of weeks in her hips.  She underwent an ultrasound and her pain eventually resolved.

77On 26 June 2020, the plaintiff was finding movement in her shoulder very hard.  She could not pull, lift, or put her hand behind her back.  She had an ultrasound-guided injection into her shoulder to ease her pain.  This was of no benefit to her. She was given a further injection on 3 July 2020.  Her pain remained at a nine out of ten.

78The pain the plaintiff experienced affected her work duties.  She had to stop and rest for about 15 to 20 minutes.  She was put on light duties, folding clothes and putting them back on the shelves.  She was not able to do merchandising, work with the mannequins or lift boxes.

79Following the two injections, the plaintiff continued with physiotherapy.  Her evidence was she did all the recommended exercises.  Her arm responded to the physiotherapy; however, it eventually locked up. 

80She underwent surgery on her arm on 6 November 2020.  This had a small impact on her movement.

81The plaintiff continued physiotherapy until August 2021, at which time she was referred to a pain clinic.  Due to the COVID-19 restrictions and because the plaintiff resided outside the area where the pain clinic was located, she found an alternate clinic to attend.  She said she had been advised that it could take up to a year-and-a-half for her to be seen by the new clinic.

82At the date of the trial, the plaintiff said she was no longer having treatment. 

83When cross-examined about her injuries, the plaintiff said her left shoulder had improved.  She said her physiotherapist had determined she did not need to continue with physiotherapy.  Although she said she had investigated private physiotherapy, when pressed about this, she agreed she had not decided on, nor gone to, a physiotherapist since being discharged in August 2021.  In re-examination, the plaintiff explained she had been given exercises by the physiotherapist which she does every second day to prevent her shoulder from freezing and to make it stronger.

84The plaintiff also agreed she had not seen a pain specialist, despite being referred to a pain clinic.  She had also not asked her general practitioner for a referral to a surgeon for a second opinion about her shoulder.

Impact of injury

Pain

85The plaintiff said she is unable to lift her left arm fully above her head.  If she does, it hurts.  She is unable to lift anything heavy or hang clothes out as it is difficult for her to reach over her head.  She can reach across her body with her left arm if her arm is down low, but she cannot cope with sudden movements.

86The plaintiff continues to experience pain in her shoulder.  She demonstrated the location of her pain during her evidence by running her right hand across the front of her left shoulder and up into her neck.  The pain is not constant (she does not have pain in the morning) but after using her shoulder for about two hours, she begins to experience pain.

87The intensity of her pain remains the same as it was before she underwent surgery.  At the end of a working day, her shoulder is painful, and she cannot predict from one day to the next how her shoulder will be.  Generally, the pain is seven out of ten, but on a good day – which is about three days per week – it is five out of ten. 

88In re-examination, the plaintiff said she can put up with a lot of pain, but once her pain level reaches nine out of ten, she starts taking Panadol or Panadeine Forte to enable her to sleep, which she will usually achieve for two hours.

89The plaintiff said she takes medication for her pain.  She initially took Panadeine Forte and Panadol to assist with her pain, but now takes Panadol only occasionally, more at night than during the day.  She does not take medication at work during the day.

90She purchased Panadol once a week for about two months following her accident and thereafter monthly from the supermarket at a cost of $7 to $9.  In the future, the plaintiff said she will be required to purchase Panadol monthly.  She purchased four packets of Panadeine Forte at $15 per packet.  She also purchased physiotherapy tape which cost about $40.

91The plaintiff’s evidence was she had difficulty swallowing tablets, however, in cross-examination, she agreed she was able to take tablets if prescribed to her, but she did not like taking medication. However, she agreed she had taken various medication over the years and had no problems taking Panadeine Forte.

92In cross-examination, she said she no longer sees her general practitioner in relation to her shoulder pain.  She does exercises at home three times a week for ten minutes, depending on her pain levels, to manage her pain. 

Employment

93At the time she was injured, the plaintiff was employed at Noni B.  Her evidence was she was going to be a store manager, but because she could not do all the tasks of a manager, her employer declined its offer of a managerial position.  Additionally, the store where she had been working closed.  When this happened, her evidence was she was initially told her position would be made redundant.  She did not look for another job elsewhere because she believed, with her injuries, no-one would take her on.

94When cross-examined about her evidence that she was going to be offered a manager’s position, the plaintiff agreed she was never given a contract for a manager’s position, or a formal letter of offer and she had no idea what management would have involved in terms of pay or hours.

95The plaintiff was offered an alternate position at the Noni B store in Greensborough.  At the date of trial, she continued to work there four days per week for four hours at a time, cumulating to a total of about sixteen hours per week.  She is paid $24.73 per hour. 

96The plaintiff’s evidence was that since her shoulder injury, she had not been working as many hours as she would have liked.  In cross-examination, she agreed that between September 2018 and 24 December 2018, she was working on average 15.56 hours per week.  If she had not been injured, she thought she would have been working 20 to 25 hours per week.  She recognised though, that her hours had reduced partly due to COVID-19.  She accepted she had not asked for an increase in her weekly hours.  She also agreed when it was put to her, that for the year ended 30 June 2021, she earned $3,714 which was about the same as she had earned for the year ended 2018, and that she would continue to earn at that rate until age sixty-seven.[23]

[23]T105, L8-15. It is noted that the figure of $3,714 agreed to by the plaintiff in cross-examination differed from the figure of $30,714 in the table provided in the Summary of Plaintiff’s Financial Records, Exhibit E, page 155

97In re-examination, the plaintiff agreed that she would accept that in the six months prior to her injury, she was working on average 26.7 hours if that were what the records showed.  She explained that it would now be too hard for her to work those hours because of her injury.  On average, she said she is now working between 12 and 16 hours per week.  She was unsure whether she would be able to increase her work hours, but said when she arrives home from work, she puts a heat pack on her shoulder.  Further, if she works consecutive days, her shoulder hurts.

98The plaintiff said she does not feel secure in her job.

99In her evidence, the plaintiff said her boss makes allowances for her injuries.  She knows that the plaintiff cannot merchandise or prepare the mannequins; she cannot lift boxes and she cannot take the rubbish out.  She hangs clothes and attends to customers. 

100Notwithstanding the constraints suggested by the plaintiff, she accepted, when cross-examined, that she is able to use both her arms to hang clothes – she uses her left arm to bear the weight of an item of clothing on a clothes hanger, and her right arm to hang clothes.  She also accepted that her role is an important role.  She is required to communicate and assist customers.  It is a role which she enjoys.

Activities of daily living

101At home, the plaintiff explained she has trouble with cooking and cleaning.  She can cook, but she cannot lift big pots.  She finds vacuuming hard.  She cannot lift the big vacuum cleaner and must pull it along with a cord.  She acknowledged that shortness of breath affects her ability to vacuum.  She said she could not mop with one hand and using two hands impacts her shoulder.  She said it freezes and increases her pain to nine out of ten.  She is unable to lift to hang clothes on the clothesline.  She cannot clean the showers. 

102Before her injury, the plaintiff said her husband was not very good with the cleaning.  Following her surgery, she has been assisted at home by her husband and daughter.  Ms Tsiaras comes to the house three times per week for about three to four hours to assist with cooking and cleaning.  The plaintiff’s husband also assists her a lot.  The plaintiff estimated Mr Tsiaras does about five to six hours of cleaning each week including mopping, vacuuming, hanging clothes out and cleaning the showers.  Ms Tsiaras also helps with domestic chores for about six to seven hours a week.  Despite this evidence, when cross-examined, the plaintiff agreed she still does most of the housework.

103She can go shopping; however, as she explained, because of her shoulder injury, Ms Tsiaras goes with her and lifts all the heavy groceries.  The plaintiff just walks around.  The girls at the shop put the shopping into the bags and Ms Tsiaras lifts the bags into the car.

104The plaintiff said she can cook but has had to modify the way she cooks.  She said the pot is put on the stove before any of the ingredients are added. When the food is ready, her husband or Ms Tsiaras carry the pot to the bench to be served.  Her injury has also impacted her ability to cook for big events including significant family events.  Whereas previously she did all the cooking, she now has to share it with Ms Tsiaras and her daughters-in-law.

Personal care

105The plaintiff’s activities of daily living have been impacted.  She is no longer able to use her left hand to brush her hair, whereas she did before the injury.  She is unable to put a bra on because it requires her to reach back or to push the bra to her front and this hurts her shoulder.  Her husband now must do that for her.

Sleep

106The plaintiff has disrupted sleep about four to five nights per week.  She used to sleep on her left side, but she can no longer put pressure on her left shoulder.  She now sleeps on her right side.  It is not comfortable and causes her pain.  She wakes feeling sore and tired.

Gardening

107The plaintiff is unable to garden anymore.  Previously, she weeded her garden, planted plants, and cut her roses.  Now this hurts her shoulder.  As she is pulling weeds out it feels like her shoulder is jabbing her backwards.  This creates pain.

Grandchildren

108The plaintiff is unable to spend time caring for her three grandchildren. Although she can bathe and dress them, she cannot pick them up or put them on the changing table.  She described how this makes her feel useless and very sad. 

109In cross-examination, the plaintiff agreed that when she sees her grandchildren, her husband is often with her.  He can lift the children when required and she otherwise enjoys her time with her grandchildren.  She can bathe and support them with her right arm.  She expressed that it will be hard in the future because she will be unable to lift her grandchildren onto the swings.

Driving

110The plaintiff can drive, although turning hurts.  She was aware she could attach a knob to her steering wheel to assist her, but she did not think she should get one of those.

Holidays

111In cross-examination, the plaintiff also agreed she can enjoy holidays and had recently travelled to Surfers Paradise where she had spent time at the beach and enjoyed lots of walks.

112She indicated in re-examination that while on holidays, she was unable to carry her suitcase.  Although she went in the water at the beach, she only went in up to her knees.  She did not swim because “it was too surfy” and because of the injury to her left arm.[24]  She said it is now hard for her to move her arm which can get dragged in the surf.  Her injury has impacted her enjoyment of the beach.

[24]        T113, L14-24

Sophie Koskos

113Ms Koskos was an acquaintance of the plaintiff from work.  She had worked at Epping Plaza many years ago, as had the plaintiff.

114Ms Koskos attended the New Year’s Eve function on the said date with family and friends.  She did not attend with the plaintiff, who she explained she had not seen for three to four years prior to seeing her at the function.

115She has seen the plaintiff about once a month since the New Year’s Eve function when the plaintiff has come into Epping Plaza.  She described saying hello but said she otherwise does not associate with her.

116She described the position of her table at the function as being “right down the back”.  It was dark and not as bright as near the dance floor.

117Ms Koskos said she first saw the plaintiff on the dance floor at the countdown to the New Year.

118After the countdown, there were streamers everywhere.  Everyone was excited and they were throwing the streamers.  Ms Koskos did not think there was a problem with people throwing streamers.  However, when it was put to her in cross-examination that she did not think the dance floor was hazardous or dangerous, she replied: “Well, the thing is, I did think because I’ve had an injury before and I was careful.  I choofed them off a little bit from my feet, like moved the streamers …”[25]  In re-examination, Ms Koskos clarified that by “choofed” she meant moved the streamers with her shoe/foot.  She was excited to see the plaintiff and she “didn’t really look down and say ‘Be careful’”.[26]

[25]        T133, L7-16

[26]        T133, L12-16

119Very soon after midnight, after the countdown, Ms Koskos described getting up to dance with her sister.  It was the first time she had danced that night.  The dance was a “Syrto” or “Kalamatiano”.[27]  Ms Koskos recalled that, because she liked that dance.  She described it as “slow, nothing fancy, nothing cute, fast or anything”.[28]  She said there were no jumping moves.  “… it’s just going forward.  Like, you cross your feet, but to yourself.  You don’t really jump on anyone, no.  It’s very easy.”[29]  The dance moves around the dance floor in one direction.

[27]        T134, L3-11

[28]        T125, L28-30

[29]        T134, L20-26

120Her sister turned back because she did not like the dance and sat down.  Ms Koskos saw the plaintiff and was excited and stayed to dance.

121Ms Koskos grabbed the plaintiff’s left hand with her right hand.  Ms Koskos’ left hand was holding another person’s hand. 

122Ms Koskos described dancing with the plaintiff and said they had not gone around a full circle before the plaintiff slipped.  Ms Koskos described it as “really bad”.[30] She said the plaintiff slipped out of her hand and “fell, streamers everywhere, on her shoes”.[31]  No-one else fell, only the plaintiff.

[30]        T126, L1-7

[31]        T126, L2-7

123When she fell, the plaintiff was right in front of the band.  The band was up high and there was a wall.  The plaintiff’s whole body hit the wall of the stage and the dance floor.

124Ms Koskos marked the position of the plaintiff’s fall on a photograph.[32]  The photograph showed the function room, but it was not taken on the night of the New Year’s Eve function.  Ms Koskos explained that unlike the photograph, on the night of the function there were no flowers across the front of the stage and there was no table.  The floor surface was also full of streamers and pop-up things.

[32]        Exhibit C

125Ms Koskos gave evidence about the mechanism of the plaintiff’s fall.  She said the plaintiff fell on “streamers, a yellow streamer”.[33]  She remembered this because she had been “terrified” as she had been injured before and she was worried the plaintiff could have broken something.

[33]        T128, L29 – T129, L5

126In cross-examination, she first said “She slipped on the streamers.   I saw that.  I could see the streamers around her feet.   The way she slipped, she had streamers on her feet, definitely.  I tried to clean them off her shoes and around her when she fell, yeah.”[34]   However, she later disagreed that there were streamers stuck to the plaintiff’s heel.   She said the streamers were near to the plaintiff’s feet, not on the plaintiff’s shoes.  Her evidence was they were around and still there when the plaintiff fell.   When asked whether it was one streamer she saw or more than one, she initially replied it was “a lot of yellow streamers on the floor and I saw yellow near Soph, a lot of yellow and I remember the yellow”.[35]  She said she remembered yellow streamers around the plaintiff, but later said there were not a lot, but she could not say how many there were.

[34]        T135, L1-7

[35]        T139, L6-13

127Ms Koskos said the plaintiff was in pain after she fell.  People ran over.  Ms Koskos told the band that a lady had fallen and tried to stop the band and the music from playing.  She asked someone to call an ambulance.

128When cross-examined, she agreed she did not tell people to clean up and she did not complain about the presence of streamers or say they were slippery.  She did not recall saying anything about the streamers (although later she said she told her table the plaintiff had fallen on streamers).  Ms Koskos  thought someone may have started cleaning.  She thought the floorboards were clean when the ambulance picked up the plaintiff. But she did not know if someone started sweeping and did not recall if anyone came and cleaned.  She said she was shocked. 

129The ambulance attended.

Michael Tsiaras

130The plaintiff’s husband of forty-three years, Mr Tsiaras, gave evidence.  I found him to be a credible witness.  He made appropriate concessions. 

131Mr Tsiaras described attending the New Year’s Eve function on the said date at the premises.  He had been there twice before; once for a wedding and another time for another New-Year event.  He could not recall when those events were.

132Mr Tsiaras recalled dancing waltzes with the plaintiff on the dance floor in the lead up to the New Year.  He did not think there was a problem with the dance floor.  At that stage, the floor was not covered with streamers.

133Once the countdown reached zero and midnight struck, Mr Tsiaras saw two ladies sitting on tables near the dance floor throwing streamers around.  There were streamers on the dance floor also, although he could not say how many.  He did not throw streamers.

134Mr Tsiaras said he greeted friends on the dance floor and then he returned to his table.  The plaintiff remained on the dance floor to dance.

135The next thing he noticed was there were a lot of people gathered around the dance floor.  He got up to see what had happened.  He realised the plaintiff had fallen to the floor close to the stage for the band.  Mr Tsiaras did not know what caused the plaintiff to fall.  He did not make a complaint about streamers, and he did not see the plaintiff make a complaint about streamers.

136Mr Tsiaras said there were a number of assorted coloured streamers around the plaintiff.  They were curled around her, in the vicinity of her body.  He could not say how close they were to the plaintiff’s body because he was concentrating on the plaintiff.

137Mr Tsiaras said the plaintiff was lying on the floor for about ten minutes until the ambulance arrived.  She was then taken to hospital, where she remained for a day.  Following her discharge from hospital, he said she was sick and injured and as expected, she was not in a particularly good mood.

138Mr Tsiaras said now, if the plaintiff is in pain, he can tell.  He cannot squeeze her when he hugs her due to pain.  She also sleeps a lot less than before she was injured – at most only four hours a night.

139Mr Tsiaras gave evidence the plaintiff was out of work for six months and required assistance around the house with things she had previously done herself.  She was still doing some dusting and light cleaning, and she could still clean the bathrooms on her own without assistance, including the toilet and sink, but Mr Tsiaras said he cleaned the shower screens when needed and helped with the mopping, heavier vacuuming and hanging clothes on the clothesline.  The plaintiff was able to use the lighter handheld vacuum.  He explained he had not performed those activities to any significant extent before the plaintiff was injured because she was “very, very particular the way she cleans the house and she enjoys it”.[36]  He described the plaintiff as a house-proud person who enjoys cleanliness.

[36]        T149, L22-25

140Mr Tsiaras said the level of assistance he has provided with the housework has continued to remain much the same in the time since the accident.  He spends about five to six hours per week vacuuming and mopping the home he shares with the plaintiff, which is a four-bedroom, single storey house.  He disagreed that he now does more housework as he has more time because he has retired.  He explained he does more housework because the plaintiff is injured.  Further, as he explained in re-examination, it takes him longer than it would have previously taken the plaintiff to do those things because the plaintiff is fussy.  Mr Tsiaras also did not accept that the plaintiff’s problems with shortness of breath affected her ability to vacuum.

141Mr Tsiaras assists the plaintiff twice a week with the grocery shopping.

142Mr Tsiaras was cross-examined about how much cooking the plaintiff was able to do.  It was suggested to him that the plaintiff continued to do “most of” the cooking.  Mr Tsiaras disagreed.  He said the plaintiff was still able to cook but what she was able to do was limited and she needed help.  He explained that before the accident, their daughter, Ms Tsiaras, would come to the house to socialise.  In the six months after the plaintiff was injured, Ms Tsiaras came over to the plaintiff’s house three times a week for an average of two hours each time to help with the cooking and with lifting casseroles and bigger dishes in and out of the oven.  She also sometimes put the clothes on the line.

143Mr Tsiaras gave evidence that he and the plaintiff have a big garden.  Since her fall, the plaintiff has been unable to look after it because it strains her shoulder.  She previously looked after the roses and weeded the garden.

144Mr Tsiaras was cross-examined about the time he now spends doing the garden.  He said he never used to look after the flower garden before the plaintiff was injured.  He now looks after the vegetable garden for ten hours a week and works on the flower garden for about two to three hours every fortnight or every three weeks.  He said the plaintiff does “zero for gardening”.[37]

[37]        T161, L15-19

145Mr Tsiaras agreed he retired to spend more time with his grandchildren.  He said the plaintiff still enjoys seeing her grandchildren, but he lifts the grandchildren to the baby chair and if they need to be changed, he lifts them to the change table.  The plaintiff is still able to feed them.  In re-examination, Mr Tsiaras clarified that he assists with the grandchildren because the plaintiff “is struggling”.  She has difficulty lifting the grandchildren with her shoulder.

146The plaintiff remains able to socialise and see friends.  They do not often go out to restaurants, but that is because of the lockdowns.

147The plaintiff continues to drive.

148She has some pain after work but does not complain about it.

Joanna Tsiaras

149Ms Tsiaras gave evidence about her visits to her parents before the plaintiff’s accident.  She outlined she visited once or twice a week before the plaintiff’s fall.  After the accident, the visits increased to three to four times a week.  The visits are now in the evenings and last three to four hours.

150In cross-examination, Ms Tsiaras explained that she works six days a week.  She usually visits her parents on Mondays, Wednesdays and one day on the weekend.  It depends on her roster. 

151On Mondays, she is at her parents’ house from ten past four until around nine o’clock at night.  She does three hours of housework each time she visits.  She assists with the cooking and the cleaning including vacuuming, dusting, mopping, ironing, loading the washing machine, putting the washing on, unloading the washing machine, and hanging out the clothes.  She does that because her mother has difficulty doing those tasks.

152Although Ms Tsiaras could not be precise about when the plaintiff returned to work, she said it was a couple of months after the accident.  Ms Tsiaras said after her mother returned to work, she continued to visit her parents and continued to assist them because her mother remained unable to lift things.  She still visits her parents, with the number of attendances remaining the same as it has since the plaintiff’s accident.

153In relation to the cooking, Ms Tsiaras said she assists with preparation of meals from start to finish because her mother is in a lot of pain, particularly when lifting heavy pots.  Her father assists her.  She described how she gets water and puts it into the pot, puts the pot on the stove or into the oven and then prepares the meal.  She then sets the table, serves the meal, cleans the table, washes the dishes, and cleans up.  She explained some days she cooks more than others.  She gave the example of having previously prepared the meat, thereby reducing the time she might be required to prepare food on the next occasion, enabling her to attend to other tasks like ironing.

154In relation to the cleaning, Ms Tsiaras said she dusts, takes everything off the shelves, vacuums and mops the house, cleans the bathrooms, toilets and showers.  Her father does some housework, but Ms Tsiaras said he does not do a good job, so she does most of the domestic work.  The plaintiff can still use the handheld vacuum cleaner if she needs to.

155Ms Tsiaras said, when cross-examined, she had not seen the plaintiff clean the toilets and she always cleans them herself.  She agreed that if the plaintiff said she cleaned the toilets they may be double cleaning them.  She also agreed that she does the heavier vacuuming, not her father.

156She indicated she intends to provide the same level of care in the future because her mother is in constant pain.  She described how the plaintiff sits on the couch and the fact she is in pain is “written all over her face.  She will sit there sometimes holding her arm like this due to pain.  I will provide her a heat pack to ease off the pain.”[38]

[38]        T179, L11-18

157Ms Tsiaras said if her mother had not been injured, it was unlikely Ms Tsiaras would be assisting.  The plaintiff is house-proud and could do everything herself before her accident.  She was very organised.  She would not have needed Ms Tsiaras.

158Ms Tsiaras said she had never cooked for her parents before the accident.  The plaintiff is a fussy cook and it was easier for the plaintiff, rather than Ms Tsiaras, to cook.

159Ms Tsiaras described her mother as an outgoing person before the accident.  Since the accident, she has returned to work which gets her out of the house. She no longer goes to dances and stays at home most of the time because she is too scared to leave the house in case she slips and does further damage.  When cross-examined, Ms Tsiaras agreed the plaintiff goes out sometimes to dances when they have weddings, engagements and birthdays.

160Ms Tsiaras goes shopping with the plaintiff.  She agreed that her father did not like to shop.

161Since the accident, the plaintiff does not do any gardening.

Plaintiff’s medical evidence

Dr Craig Mills, orthopaedic surgeon

162Dr Mills prepared three reports, dated 17 September 2019, 28 October 2020 and 8 June 2021 which were tendered at trial.

Report dated 17 September 2019

163In his report dated 17 September 2019, Dr Mills noted the plaintiff’s past medical history.  He identified she had sustained a full undisplaced fracture of the greater tuberosity of her left humerus sixteen years prior with a plate removal six to seven months before his report.  He also noted some past right foot arthritis, some osteoarthritis in the left ankle and some thoracic spine osteoarthritis.

164In relation to the incident, Dr Mills referred to the general practitioner’s notes.  The plaintiff had sustained a fall and had a fracture dislocation of the humeral tuberosity of her left shoulder.  She underwent a closed reduction at the Austin Hospital.  Her shoulder was placed in a sling.  Her left knee was also noted to be slightly swollen and tender.

165X-rays taken on 14 May 2019 of the left shoulder revealed a united greater tuberosity in a good position.

166The plaintiff was noted to be working ten hours per fortnight in sales.

167The plaintiff was able to dress herself with fastening of her bra at the front.  She could shower, toilet and drive for a maximum of one hour.  She did light cooking with assistance from her family.  She found vacuuming, mopping, and making beds difficult.  She was unable to garden.  She enjoyed visits with her daughter.

168Upon examination, the plaintiff’s flexion was 110 degrees, extension was 30 degrees, adduction was 10 degrees, abduction was 90 degrees, internal rotation was 20 degrees and external rotation was 30 degrees.

169Dr Mills opined that further surgery was unlikely to improve the plaintiff’s functioning.

Report dated 28 October 2020

170In his report dated 28 October 2020, Dr Mills noted the treatment of the plaintiff’s injury.  He identified she had undergone a closed reduction and had subsequently had two corticosteroid injections administered.  She had a substantial amount of ongoing pain.  There were no plans at that time for surgical repair or reconstruction.

171The plaintiff had marked insomnia when sleeping on her shoulder.  She had been undergoing physiotherapy, but this had stopped because of the coronavirus pandemic.

172The plaintiff was taking occasional Panadeine Forte and medication for her thyroid condition and asthma.

173Dr Mills noted that the plaintiff experienced difficulties fastening her bra, reaching behind herself, brushing and washing her hair, and reaching up.  She also experienced difficulties toileting and showering if she tried to use her injured arm.

174The plaintiff was able to drive.

175She was able to perform light cooking and cleaning but relied on her husband to do heavier tasks.  She was unable to vacuum, mop, or hang out clothes.  She was unable to garden and struggled with shopping. 

176The plaintiff was unable to dance.

177Dr Mills diagnosed post fracture dislocation stiffness consistent with severe adhesive capsulitis and osteoarthritis.  He noted that the plaintiff may have required release surgery and/or eventual replacement, alternatively, arthroscopic capsulectomy and release of hydrodilatations using water.

Report dated 8 June 2021

178In his report dated 8 June 2021, Dr Mills noted the plaintiff’s complaint at that time of pain beginning from the root of the neck, down across the anterior shoulder and down to the upper arm.  She had pain of eight to nine out of ten for seven days a week.  She was never without pain and had continuous sensitivity in her shoulder.

179She continued to work in retail for 15 hours per week.

180Dr Mills noted the difficulties the plaintiff was experiencing with her activities of daily living including brushing her hair and fastening her bra. 

181The plaintiff was noted to live with her husband.  She was able to do light household tasks.  Her husband assisted with hanging out the clothes, vacuuming, lifting heavy items and shopping. 

182The plaintiff remained unable to dance.

183Upon clinical examination, Dr Mills assessed the plaintiff as having flexion of 100 degrees, extension of 30 degrees, adduction of 0 degrees, abduction of 90 degrees, internal rotation of 30 degrees and external rotation of 40 degrees. 

184Dr Mills opined the plaintiff was clinically the same or slightly worse than her previous assessment.  He suggested further review by her treating surgeon or a different surgeon, continued physiotherapy and referral to a pain physician to deal with her Chronic Pain Syndrome.

185He diagnosed the plaintiff as having a united fracture dislocation of the left shoulder after prior internal fixation fracture and removal of metal left humerus.  There was residual soft tissue dysfunction, arthrofibrosis of the left shoulder, wasting, significant scarring and significant cosmetic defect related to both her current shoulder problem and the original shoulder internal fixation.  There was also significant dysfunction of a chronic pain nature.  This was said to be attributable to an incident on 1 November 2019.[39]

[39]This date appears to be a typographical error which first appeared in instructions to Dr Mills and which was subsequently transposed into his report.

186Dr Mills recommended outpatient review by a general practitioner, a physiotherapist, and a pain therapist.  He considered the likelihood of further surgery improving the plaintiff’s condition as low and opined there was a possibility of further osteoarthritic change.

187In his view, the plaintiff was partially incapacitated for her pre-injury occupation and required four to six hours per week of domestic care (which was being carried out by her husband) particularly for heavier tasks. 

Dr Terence Saxby, consultant orthopaedic surgeon

188On 6 May 2021, the plaintiff was examined by Dr Saxby at the request of the defendant.  Dr Saxby prepared a report dated 17 May 2021.  The report was tendered by the plaintiff.

189The history obtained by Dr Saxby from the plaintiff of how her injury occurred was that she was attending a New Year’s Eve function on the said date at the premises.  Just after midnight she said her foot became entangled in streamers and she fell to the ground, landing on her left side. 

190He detailed that the plaintiff had immediate severe pain and was found to have dislocated her shoulder.  She was taken to hospital by ambulance.  An attempt was made to reduce the shoulder in the Emergency Department.  The plaintiff returned to physiotherapy, hydrotherapy, and a gym program was recommended.

191Dr Saxby referred to the fact that the plaintiff had returned to work but was unable to perform any lifting duties.  She was able to do some household chores and to drive a short distance, but had difficulty with overhead activities and personal care, including dressing herself, when required to put her arm behind her back.  She had trouble hanging washing out and was not able to lift her grandchildren.

192Dr Saxby noted that the plaintiff had shoulder flexion of 100 degrees, extension 30 degrees, abduction 90 degrees, adduction 40 degrees, external rotation 40 degrees and internal rotation 30 degrees.

193The only significant variant between Dr Saxby and Dr Mills’ opinion was the degree of the plaintiff’s adduction. Dr Mills assessed this at 0 degrees whereas Dr Saxby assessed it at 40 degrees.

The defendant

194The defendant called no oral evidence.

195The report of Mr Saxby which had been obtained by the defendant was tendered by the plaintiff.

196The defendant tendered a pair of ‘Supersoft’ high-heeled shoes (black)[40] and a bundle of payslips prior to the plaintiff’s accident on 1 January 2019.[41]

[40]        Exhibit 1

[41]        Exhibit 2

Missing witnesses

197Although the defendant anticipated a submission might be made against it with respect to its failure to call witnesses at trial, this did not transpire.  It is consequently unnecessary for me to consider whether any inferences ought to be drawn against the defendant in accordance with Jones v Dunkel.[42] 

[42] (1959) 101 CLR 298

Credit

198I am satisfied that the plaintiff did her best to describe how she was injured and the circumstances in which that occurred.  However, her memory of the specific details of her fall, and several other matters, was vague. 

199More than likely her fall occurred quickly.  She would have had no reason to recall detail about what occurred before she fell, and in the immediate aftermath she was in a lot of pain.  It is understandable, in those circumstances, that she was unable to recall events clearly.  She was an honest witness, but I found her evidence, at times, problematic.  In relation to the mechanism of her fall, I formed the view the plaintiff had little independent recollection of how she fell.  Because of this, aspects of her evidence appeared to have been reconstructed based on what she observed after her fall. 

200Like the plaintiff, Ms Koskos was an honest witness who struck me as being a careful person.  Nevertheless, there were aspects of her evidence which were inherently inconsistent.  Like the plaintiff, I considered that she had reconstructed aspects of the events on the night and did not have a clear memory.

201I am satisfied that the remaining witnesses, Mr Tsiaras and Ms Tsiaras, were both honest witnesses who did their best to recall events on the night and to describe the impact the plaintiff’s injuries have had on her. 

202Mr Tsiaras did not directly witness the plaintiff’s fall.  His evidence was based on what he saw following the fall.  He gave that evidence making appropriate concessions.

203Because of the view I have taken about the lack of clear memory by both the plaintiff and Ms Koskos, I have approached their evidence cautiously.

Findings

Factual issues relevant to liability

Was the dance floor slippery?

204The first issue is whether the dance floor was inherently slippery.

205The plaintiff’s evidence was that the dance floor surface was constructed with wooden floorboards.  They were polished and on the night the plaintiff was injured, they were the same as shown in the photograph comprising Exhibit C.  Ms Koskos, in her evidence, suggested that when floorboards are clean it is possible to slip and that the floorboards were slippery. 

206The defendant, on the other hand, said, in Answers to Interrogatories, that the floor was “a circular non-slip dance floor” and was “without any polish or varnish”.[43]  It had “been at the premises for approximately 15 years without incident.”[44]  The director of the defendant, Spiro Alatsas, had “operated functions from the premises for over 15 years and assessed that the floor was not slippery”[45] and “was safe to dance on”[46] including when it had streamers on it.

[43]        Exhibit E, Defendant’s Answers to the Plaintiff’s Interrogatories (Consolidated), Interrogatory 3

[44]        Exhibit E, Defendant’s Answers to the Plaintiff’s Interrogatories (Consolidated), Interrogatory 3

[45]        Exhibit E, Defendant’s Answers to the Plaintiff’s Interrogatories (Consolidated), Interrogatory 7(a)

[46]        Exhibit E, Defendant’s Answers to the Plaintiff’s Interrogatories (Consolidated), Interrogatory 7(b)

207I have considered the evidence and for the following reasons, I have concluded the dance floor was made of floorboards that were not slippery and did not pose an inherent risk of injury to patrons at the function.  First, the defendant was the occupier of the premises.  It had been responsible for the state of the floor for over fifteen years, and it was likely to recall the state of the floor on the night in question.  Secondly, the plaintiff’s evidence was she had danced on the dance floor on two prior occasions on the night in question and the floor had not been slippery. Third, Mr Tsiaras’ evidence was he did not think there was a problem with the dance floor at any stage that night.  Fourth, there was no expert evidence which suggested that the floor was slippery.  Fifth, there was no evidence of any previous incidents involving falls on the dance floor.  Sixth, although the photograph of the dance floor tendered by the plaintiff appeared to show a shiny floor surface, the photograph was not taken on the night of the New Year’s Eve function.  It was unclear when it was taken and may in fact have been taken after the event.

208I find that the dance floor itself was not slippery. 

Were there streamers on the dance floor when the Plaintiff fell?

209By its Defence to Further Amended Statement of Claim, the defendant did not admit there were numerous streamers on the dance floor of the venue when the plaintiff fell.  It relied on the absence of complaint about the presence of streamers by the plaintiff, by Mr Tsiaras and by Ms Koskos and the lack of mention of streamers in the general practitioner’s notes.

210On the other hand, the plaintiff said at midnight, she saw people throw streamers and at the time she fell, the plaintiff said there were streamers near the end of her feet.  She did not think there was any issue with this.

211Mr Tsiaras also said he saw two ladies sitting on tables near the dance floor throwing streamers around and there were other streamers on the floor also, although he could not say how many.

212After the countdown, Ms Koskos said there were party poppers being popped and streamers everywhere.  The dance floor was “full of them”.[47]  Everyone was excited, and they were throwing them.

[47]        T141, L2-6

213There was also evidence in the Ambulance Patient Care record dated 1 January 2019 that the plaintiff slipped on confetti and in the Ambulance Handover and Emergency Discharge Documentation that the plaintiff “fell dancing – slipped on streamer.”[48]

[48]        Exhibit E, JCB 115 and 116

214The weight of the evidence supports the conclusion, and I find, there were streamers on the dance floor when the plaintiff fell.

Were the streamers slippery and difficult to break?

215At trial, streamers of the type thrown at the New Year’s Eve function were tendered.[49]  They were paper streamers and did not feel slippery.

[49]        Exhibit D

216The plaintiff’s evidence was she slipped on a streamer, not that the streamers were inherently slippery.  She did not perceive that the floor would be dangerous or pose a hazard if streamers had been thrown onto it.

217Ms Koskos considered the streamers were slippery.  Her evidence was:[50]

Q:“But why were you worried about the streamers and why did you move them in the fashion that you’ve said you moved them? ---

A:Because there was a lot of them, because yeah, the dance floor was full of them and I just didn’t want to slip.

Q:You said you weren’t stepping on them.  What was your concern about stepping on them ---

A:Well, I didn’t want to fall and slip, you know, because they are slippery.  For me, paper’s slippery.  I’ve got floorboards at home and a piece of paper, they are clean floors, you can slip and I’ve done that before at home, so yeah, paper, heels, shoes, you know.”

[50]        T141, L2-L13

218There was no expert evidence to confirm whether the streamers were slippery.  The defendant submitted that in the absence of expert evidence, the Court could not speculate that the streamers were slippery.  The plaintiff contended to the contrary.

219The appropriate finding, in my view, is that the streamers were not slippery and did not pose a tripping hazard. 

220I make that finding for the following reasons.

221First, there was no expert evidence supporting the fact that the streamers were slippery. 

222Secondly, the streamers were not slippery.  They did not feel slippery.  They were made of paper.  They were not wet, and there was no evidence food had been spilt on them.

223Thirdly, the plaintiff did not say the streamers were slippery, merely that she slipped on them. 

224Fourthly, although Ms Koskos claimed that the streamers were slippery, she did not tell anyone this before the plaintiff fell.  Her evidence was there were a lot of streamers and she did not want to slip.  She said the streamers were slippery.  She had been injured in the past and was worried she would get injured again so she was cautious and looked after herself.  Rather than conveying the streamers were slippery, when cross-examined, she said at the time, she did not think the streamers posed a problem.

225Finally, it is unlikely the streamers were slippery because they broke easily.  Initially, the plaintiff said that breaking a streamer required hardly any force and they broke on impact.  She later retreated from that evidence and did not agree the streamers would easily have broken with the force of a backward step. However, the ultimate effect of her evidence was she did not know whether stepping on a streamer would have caused it to disintegrate or break.  She was unable to state positively that the streamer would not have broken easily and on impact.

226Considering all the evidence, I find the streamers were not slippery or difficult to break.

Where was the Plaintiff when she fell?

227The plaintiff gave evidence about where she was when she fell.  She explained that she put her left foot in front and felt something on the heel of her shoe.  She then stepped back and put weight on her left foot.  It collapsed under her, and she fell flat on her back.  Her feet ended up on the right-hand side.  She was asked to clarify this and she said she was dancing on the right-hand side of the dance floor in a circle.  She slipped and fell when she put her left foot back. Her feet ended up on the left-hand side of the dance floor.

228In evidence-in-chief, the plaintiff was asked, with respect to the stage, where the fall occurred. She said it occurred “very close to the stage”,[51] and described being two feet away from the stage when she fell.

[51]        T35, L7-8

229The plaintiff marked her position on a photograph which was tendered.[52]  The photograph identified the position of Ms Koskos with the letter “X” and the position of the plaintiff’s feet after she fell, with the letter “F”.  The plaintiff said that her head was positioned where the “X” was marked and her feet were where the top of the letter “F” was marked, her feet being closer to the stage than her head.[53]

[52]        Exhibit A

[53]        T40, L25 – T41, L21

230The plaintiff was cross-examined about her evidence as to how far she was from the stage before she fell, how she fell and where she landed: [54]

[54]        T91, L22 – T92, L23

Q:“Just to be clear, so I – we will see the picture of the diagram you drew but did your feet fall forwards away from the stage or to the left or to the right which you fell? ---

A:To my left.

Q:So towards ---? ---

A:The stage.

Q:Towards the stage, okay.  You must have been very close to the stage? ---

A:Yes.

Q:Extremely close to the stage? ---

A:No, not extremely close.

Q:Because you say your knee contacted the stage ---

A:Yes.

Q:How could it contact the stage if you weren’t extremely close to it? ---

A: We weren’t – I wasn’t stuck to the stage.  We walked past it, it would have been like that, as you’re dancing.

Q: I think you demonstrated yesterday, you were very close to that back wall.  Was that about where you were, literally your back to the stage or how far forwards from the stage? ---

A:No, my back was to the stage, yes.

Q:And approximately how far behind was the stage, doing the best you can for the estimates? ---

A:It would have been about that much, like that.  Okay.”

HER HONOUR:    

Q:“How much approximately in centimetres do you think that is, Ms Tsiaras? ---

A:I’m not quite sure.  I’ve got a ruler here, let me find ---

Q:With respect to your hand, how much ---”

MR MACNAB:       

Your Honour, the plaintiff said she had a ruler.”

HER HONOUR:    

Q:“Has she got a ruler? ---

A:Yeah, I do.

Q:So how far do you think you were? ---

A:About 12cm, give or take.”

MR MAKOWSKI:  

Q:“Do you say the streamers were in front or on the back when you fell? Did you move towards and come into contact with them or did you step backwards and come into contact with them, or you don’t know?---

A:I’m just trying to think, I’m sorry.  I think they were behind me.

Q:So you think as you stepped backwards, you made contact with them at that time and you slipped? ---

A:Yes.”

231In my view, the plaintiff’s responses to questions demonstrated she had limited independent recollection about where she was when she fell.  Although she said in examination-in-chief that the point at which she fell was 2 feet from the stage, I was not convinced by this evidence.  It was evident when the plaintiff used her arms to demonstrate the distance she was from the stage during her evidence, that it was less than 2 feet.  Further, when she had the benefit of a ruler during cross-examination, she measured the distance she said she was from the stage as being only 12 centimetres (noting that the plaintiff did not differentiate in her evidence about whether 12 centimetres from the stage was the position of her feet before or after she fell). 

232Taking the plaintiff’s evidence at its highest, it is not possible to find the precise distance the plaintiff was from the stage when she fell.  However, I am satisfied, consistent with the evidence the plaintiff gave in examination-in-chief, that she was very close to the stage, and certainly close enough that her knee and other parts of her body were able to contact the stage, either as she was dancing or as she fell.  This is consistent with the evidence Ms Koskos gave, that the plaintiff’s whole body hit the wall of the stage and the dance floor and with the position Ms Koskos marked on a photograph of where the plaintiff fell.[55]

350Sutton, on the other hand, involved a plaintiff whose only injury was a shoulder injury.

351Having considered these and the range of other cases, and considering the plaintiff’s injuries and the impact of them on her, I have determined that the amount claimed by the plaintiff for damages for non-economic loss of $175,000 is too high.  I consider the plaintiff’s injuries in this case to be like those sustained in Sutton.  Consequently, had it been necessary to award damages for non-economic loss, I would have awarded the sum of $150,000.

Past economic loss

352The plaintiff claimed the sum of $12,129[98] for past economic loss.  This comprised $9,076 for the period the plaintiff was off work, plus $3,063[99] for a redundancy period between 15 August 2021 and 25 October 2021.  These sums were calculated by using an average amount of $363 for the plaintiff’s net weekly earnings (inclusive of superannuation) between 27 August 2018 and 31 December 2018, multiplied by the number of applicable weeks the plaintiff was out of work.  On the plaintiff’s evidence, she was off work from 1 January 2019 until 24 June 2019,[100] or 25 weeks. 

[98]        The total amount of $12,129 is calculated by adding $9,076 and $3,630

[99]        Counsel for the plaintiff calculated 10 weeks multiplied by $363 as $3,063 when in fact it is $3,630

[100]      T46, L7-10

353It was put to the plaintiff in cross-examination that between September 2018 and 24 December 2018, she worked on average 15.56 hours per week.  She agreed that was correct.

354The fairest way to calculate the plaintiff’s past earnings, in my view, is by considering her payslips.  The plaintiff’s payslips for the period prior to 31 December 2018 were tendered.  These showed the plaintiff worked the following hours:

Dates	Ordinary hours	Superannuation
27/08/18 to 02/09/18	17.75	-
03/09/18 to 03/09/18	20.75	$83.90
10/09/18 to 16/09/18	6.5	$13.75
17/09/18 to 23/09/18	14	$28.92
24/09/18 to 30/09/18	4.5	$9.46
01/10/18 to 07/10/18	19.25	$45.27
08/10/18 to 14/10/18	14	$29.35
15/10/18 to 21/10/18	-	-
22/10/18 to 28/10/18	13.25	$27.77
29/10/18 to 04/11/18	20.75	$48.13
05/11/18 to 11/11/18	13.25	$27.77
12/11/18 to 18/11/18	18.5	$43.22
19/11/18 to 25/11/18	14	$29.35
26/11/18 to 02/12/18	17.75	-
03/12/18 to 09/12/18	14.75	$72.57
17/12/18 to 23/12/18	25.75	$59.54
24/12/18 to 30/12/18	-	-
31/12/18 to 06/01/19	3	$64.59
TOTAL	237.75	$583.59

355Based on the plaintiff’s pre-injury payslips (not taking into account weeks where no payslips were provided), at a rate of $21.52 per hour (which was the ordinary hour rate the plaintiff was earning), the plaintiff’s average income up to the date of the plaintiff’s injury (without superannuation) was 237.75 x 21.52 = $319.77 per week. 

356The plaintiff claims she did not return to work until 24 June 2019.  This was consistent with the plaintiff’s evidence.

357Counsel for the defendant quite properly said there was a brief period of time after the plaintiff fell when the defendant accepted there was economic loss.  He suggested until June but was no more specific than that. 

358I accept the plaintiff’s evidence that she did not return to work until 24 June 2019, which is a period of 25 weeks.  Had she worked during that 25-week period, adopting the average weekly hours and rate at which she would have earned, I accept the plaintiff would have earned $7,994.25 plus superannuation.

359From the plaintiff’s payslips it is possible to calculate the applicable superannuation rate as 9.5 per cent. 

360I have determined that the best way to calculate the plaintiff’s superannuation entitlement is by adopting the superannuation rate of 9.5 per cent and applying that to the income the plaintiff would have earned for the 25 weeks where she did not work.  On that basis, her weekly superannuation entitlement is calculated as 9.5 per cent of $319.77 or $30.38 per week.  For 25 weeks, this equates to a superannuation entitlement of $759.50.

361The plaintiff also claimed the sum of $3,063 (which, based on the submissions of counsel, should properly have been the sum of $3,630) in respect of a redundancy period between 15 August 2021 and 25 October 2021.

362The defendant’s position was the plaintiff was entitled to recover past economic loss for the period after her accident up to the time she returned to work.  Having returned to work in 2019, no allowance should be made in respect of the redundancy in 2021.  I agree.  Although the plaintiff has an ongoing injury, the plaintiff accepted in cross-examination that COVID-19 stopped her working in 2020 and 2021.  Retail was badly affected.  Consequently, her shifts decreased.  It was this that impacted her ability to work in 2021, not her shoulder injury.

363Taking each of these matters into account, if it were necessary to assess the past economic loss sustained by the plaintiff, I would have awarded the plaintiff the sum of $7,994.25 plus $759.50 superannuation, totalling $8,753.75.

Future economic loss - loss of earning capacity

364Compensation for loss of earning capacity for a plaintiff is awarded because a plaintiff’s earning capacity has diminished, and the diminution is or may be productive of financial loss.  The plaintiff must prove the loss for which compensation is claimed.[101] 

[101]      Graham v Baker (1961) 106 CLR 340 at 347

365The plaintiff’s counsel acknowledged that the plaintiff was working similar hours after her accident as she was before, but it was submitted that if she had not been injured, she would have been working more.  If she had not been injured, she thought she would have been working 20 to 25 hours per week.  Further, it was submitted she may be unable to work to age sixty-seven because there was a risk she might require future medical treatment and time off work.  Additionally, if she lost her current job, she might be unable to find suitable alternate employment.  The plaintiff submitted that an allowance of $15,000 should consequently be made for future loss of earnings, “essentially on a Farlow[102] type basis”.

[102]      Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594

366The defendant submitted that the plaintiff had not suffered a loss of earning capacity because of her injury.  She was working after her accident as much as or more than before her accident.  She would have liked to have been doing more, but she recognised that her hours had been reduced due to COVID-19.  Further, she accepted she had not asked for an increase in her weekly hours. Additionally, the summary of the plaintiff’s financial records, included as part of Exhibit E, demonstrated there had been minimal change in the plaintiff’s earning capacity.  For the year ended 30 June 2021, Exhibit E confirmed she earned $30,714, which was about the same as she had earned for the year ending 2018.[103]  Finally, there was no expert evidence from an occupational physician upon which I could base a finding that the plaintiff had sustained a loss of earning capacity.

[103]      Exhibit E, Amended Plaintiff’s Court Book, page 155

367At trial, the plaintiff’s payslips before and after her accident were tendered.  Although the plaintiff said in re-examination that she would agree that in the six months prior to her injury, she was working on average 26.7 hours per week if that was what the records showed, that was not what the records showed.  A review of the records demonstrates that amounts earned by the plaintiff each week varied between 3.00 and 25.75 hours per week.  They did not reach the level of 26.7 hours. 

368I am not satisfied, on the balance of probabilities, that the evidence supports a finding that the plaintiff has suffered a loss of earning capacity.  At the date of the hearing, the plaintiff was continuing to work despite having had surgery, some ongoing pain, and activity-related restrictions with respect to lifting, pushing, pulling and overhead activities.  Her hours each week varied but were broadly like the hours she had been working prior to her injury when her ordinary hours ranged from 3 to 25.75 per week.  The plaintiff’s evidence was she is now working between 12 and 16 hours per week.  This is like the hours she had worked on average prior to her injury, noting the average of the hours the plaintiff worked each week was 14.85 hours per week.  Further, the plaintiff’s earnings were also like what she was earning prior to sustaining her injury.  While the plaintiff was not working as much as she may have wanted to work, I accept that COVID-19 reduced the work available, as the plaintiff acknowledged in cross-examination.

369Despite the submission that there was a risk the plaintiff may require future medical treatment, would require time off work and may be unable to work to age sixty-seven, I am not satisfied, on the balance of probabilities, that there will be a need for the plaintiff to take time off work to undergo future medical treatment.  Dr Mills opined in his report dated 17 September 2019 that “further surgery is unlikely to improve … [the plaintiff’s] current functioning”.  There are no plans for further surgery or hydrodilatation and the plaintiff has a preference for conservative treatment.  In his subsequent report dated 8 June 2021, Dr Mills remained of that view.  He noted the recent surgery which the plaintiff had undertaken and opined that given the plaintiff’s “poor response to recent surgery”, any future review by a surgeon would need to be patient driven rather than recommended.  He noted, in any event, that the likelihood further surgery would improve the plaintiff’s injury was low. 

370Having considered the evidence with respect to loss of earning capacity, had it been necessary to do so, I consequently would have made no award of damages for future economic loss.

Past gratuitous care

371Section 28IA of the Act provides:

“28IA Limitation on damages for gratuitous attendant care

(1)no damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a)There is (or was) a reasonable need for the services to be provided; and

(b)The need has arisen (or arose) solely because of the injury to which the damages relate; and

(c)The services would not be (or would not have been) provided to the claimant but for the injury. 

(2)Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided –

(a)For less than 6 hours per week; and

(b)For less than 6 months.”

372The plaintiff submitted that sub-paragraphs (a) and (b) in ss(2) of s28AI operate alternatively. That is, if only one limb of s28AI(2) is met, a plaintiff can still be awarded damages. For instance, damages can be awarded if gratuitous care is provided for at least six hours per week but for less than six months, or for more than six months but less than six hours per week. I was referred to the decision in Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority[104] as authority for this proposition. 

[104] (2007) 18 VR 146 (“Alcoa”)

373Alcoa involved the question of whether the provisions of the Act applied to a hypothetical assessment of damages under s138 of the Accident Compensation Act. Specifically, whether s28AI of the Act precluded the Court from making an allowance for gratuitous attendant care in the amount assessed for the purposes of factor A calculations of hypothetical damages. Chernov JA considered that the sub-paragraphs of ss(2) were required to be read conjunctively:

“… on the ordinary meaning of s 28IA(2) the prohibition against damages claims for gratuitous services does not operate unless they are of a kind that fall within both paragraphs.  Thus, for example, if the services provided to Husson as found by his Honour fell within para (a) but not para (b), he would nevertheless be entitled to claim the amount as damages, subject to satisfying the requirements of sub‑s (1).  In my view, there is no apparent justification for reading ‘and’ as ‘or’ as Alcoa would have it.  … .”[105]

[105]      Ibid at paragraph [40]

374Although Alcoa involved the interpretation of s28AI in the context of a hypothetical assessment of damages under s138 of the Accident Compensation Act, in my view, the reasoning is nevertheless applicable to the current case.  This means that provided the requirements of ss(1) are satisfied, the plaintiff is entitled to an award of damages.  However, the plaintiff will be disentitled, that is, no damages may be awarded, if both sub-paragraphs (a) and (b) are fulfilled.

375The plaintiff claimed the sum of $43,940 for past gratuitous care.  This claim was based on provision of 9 hours of care per week from the date of injury up to the date of the hearing.

376The plaintiff’s evidence established that she had trouble with cooking and cleaning.  She was unable to lift big pots.  She found vacuuming hard.  She could only mop with one hand.  Using two hands impacted her shoulder, which froze and increased her pain to nine out of ten.  She was unable to hang clothes on the clothesline.  She could not lift to put the pegs onto the clothesline, and she could not clean the showers.  She was no longer able to use her left hand to brush her hair.  She was unable to put a bra on because it required her to reach back or to push it to the front and this hurt her shoulder.  Her husband now had to do that for her.

377I am satisfied that there was a need for some services to be provided to the plaintiff following her accident and consequently, that the plaintiff would have satisfied s28(1)(a) of the Act had I found for the plaintiff in relation to the issues of breach and causation.

378I also accept the need for the services arose solely because of the injury the plaintiff sustained to her shoulder in the fall to which the damages relate pursuant to s28(1)(b) of the Act. Before her accident, the plaintiff was able to cook and clean. She said her husband did not provide much assistance with cleaning before she suffered her injury. She explained that she is European and that she is very particular.

379Similarly, Mr Tsiaras’ evidence, which I accept, was that if the plaintiff had not been injured, he would not have been doing many of the tasks he now has to perform.  The plaintiff was a “house-proud lady” who enjoyed cleanliness and wanted to do things her own way.

380The plaintiff’s need for assistance was also supported by the expert evidence of both Dr Mills and Dr Saxby to which reference has been made.  Dr Mills noted that the plaintiff experienced difficulties fastening her bra, reaching behind herself, brushing and washing her hair, and reaching up.  She also experienced difficulties toileting and showering if she tried to use her injured arm.  She was able to perform light cooking and cleaning but relied on her husband to do heavier tasks.  She was unable to vacuum, mop, or hang out clothes.  She was unable to garden and struggled with shopping.  Similarly, Dr Saxby referred to the fact that the plaintiff had returned to work but was unable to perform any lifting duties.  She was able to do some household chores and to drive a short distance but had difficulty with overhead activities and personal care including dressing herself, when required to put her arm behind her back.  She had trouble hanging washing out and was not able to lift her grandchildren.

381I further accept, based on the evidence of each of the plaintiff, Mr Tsiaras and Ms Tsiaras, that as required by s28(1)(c) of the Act, the services would not have been provided but for the injury. 

382I consequently find that the plaintiff satisfies the requirements of s28AI(1) of the Act. On that basis, if it were necessary to award damages, she would have been entitled to an award of damages.

383In relation to the applicability of s28AI(2), when he prepared his report dated 8 June 2021, Dr Mills was of the opinion the plaintiff “requires four to six hours per week of domestic care”. He did not opine that she had previously required nine hours of domestic care or that she would require more than four to six hours into the future.

384The defendant was critical of the ability of Dr Mills and Dr Saxby to provide expert opinion on the amount and nature of care required by the plaintiff because both are orthopaedic surgeons as opposed to occupational therapists or occupational physicians.  The defendant’s counsel referred me to the decision in Boral Bricks v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd[106] in relation to whether the plaintiff had satisfied the threshold of six hours’ domestic care per week.  In that case, Basten JA observed:[107]

“… On what basis the orthopaedic surgeon assessed the number of hours per week required to undertake domestic duties and gardening was not revealed.  It is not the kind of ‘expertise’ which is normally attributed to orthopaedic surgeons.  The evidence was clearly inadmissible, although not objected to, and should be given no weight at all.  Why the Court was taken to it is obscure.”

[106]      Supra

[107]      Ibid at paragraph [93]

385I accept that Dr Mills did not explain how it might have been said he had specialised knowledge to proffer an opinion assessing the number of hours per week required to undertake domestic duties.  I consequently accept that there is no expert evidence available to me to assess any domestic care requirements of the plaintiff.  Even if this were to be incorrect, and I was prepared to accept Dr Mills’ opinion that the plaintiff requires four to six hours of care per week, damages may not be awarded if the services are provided for less than six hours per week and for less than six months.  In my view, this is the case.  At most, based on Dr Mills’ report, the plaintiff only requires four to six hours’ domestic care per week.  Because the gratuitous care services were provided for less than 6 hours per week, based on that sub-section alone, no damages could be awarded. 

386Next, it is necessary to consider whether the gratuitous care services were provided for less than six months.  The plaintiff returned to work after 25 weeks.  This suggests that the plaintiff had sufficient physical capability to complete domestic tasks without assistance.  However, the plaintiff was required to undergo surgery on her shoulder in 2020 and she said her arm was in a sling for six weeks.  Her evidence was she returned to work after about five weeks.  I accept the plaintiff required at least some domestic assistance during this period.  Additionally, the evidence of each of the plaintiff, Mr Tsiaras and Ms Tsiaras supported the conclusion that the plaintiff continued to receive domestic care services after she returned to work.  For instance, Ms Tsiaras said that after her mother returned to work, she continued to visit her parents and continued to assist them with domestic tasks because her mother remained unable to lift things.  She said she still visits her parents, with the number of attendances remaining the same as it has since the plaintiff’s accident. Mr Tsiaras likewise said he spent about five to six hours per week vacuuming and mopping the home he shares with the plaintiff and explained he did more housework because the plaintiff was injured.  The medical opinions also supported the position that the plaintiff continued to require a degree of domestic assistance even after she returned to work.

387Having considered the evidence, I accept that the plaintiff did require some ongoing domestic assistance after her accident up to the date of the hearing. Consequently, gratuitous care services were provided for more than six months. For that reason, the plaintiff would not be disentitled to an award of damages by reason of s28AI(2)(b) of the Act alone.

388I have found that s28AI(2) requires that both sub-paragraphs (a) and (b) be met before an award of damages is precluded. Because this is not the case, the plaintiff would have been entitled to an award of damages.

389The appropriate award would have depended on the level at which the plaintiff required domestic assistance.  Although the plaintiff claimed she required nine hours of domestic assistance per week for the entire period after she was injured to the date of the hearing, in my view, that amount is excessive. 

390The plaintiff’s evidence was she returned to work after 25 weeks, which is a period less than six months.  Because her job involved some manual work, I infer that she retained an ability to perform some domestic and personal care tasks.  Further, I consider there was a degree of overlap in the tasks said to have been performed by both Ms Tsiaras and Mr Tsiaras.  Both, for instance, seemed to mop and vacuum.  In my view, an allowance of five hours per week for past domestic assistance would have been reasonable.

391I accept that the value of attendant care is $29.77 per hour.[108]  For five hours per week, the value of attendant care is $148.85 per week.  I find that from 1 January 2019 to 18 April 2023, the total number of weeks of attendant care is 223.71.  The plaintiff’s entitlement to past attendant care calculates at $148.85 multiplied by 223.71 to generate total past attendant care of $33,299.23.  I conclude that had I found for the plaintiff in relation to the issues of breach and causation, the plaintiff would have been entitled to $33,299.23 for past attendant care.

[108]      Agreed between the parties

Future gratuitous care

392The plaintiff claimed the sum of $50,000 for future gratuitous care.  The amount claimed was not calculated based on a specific number of hours of care per week or over a particular period.  Rather, Senior Counsel for the plaintiff submitted that the plaintiff required ongoing assistance and it was a matter of “trying to balance out and say, well, where’s the right figure for that sort of care”.

393With respect, I do not accept that submission.  The legislation has put in place a regime which requires that certain criteria be met before any award of damages for gratuitous care can be made.  It is consequently necessary to assess whether the plaintiff has proved, on the balance of probabilities, that she meets the relevant criteria and then, to assess any award of damages. 

394As with the claim to past gratuitous care, for the reasons I have detailed, I accept that there is likely to be a need for some services to be provided to the plaintiff in the future.  She has trouble with cooking and cleaning.  She can cook, but she cannot lift big pots.  She finds vacuuming hard.  She cannot mop with one hand and using two hands impacts her shoulder.  She said it freezes and increases her pain to nine out of ten.  She is unable to hang clothes on the clothesline.  She cannot lift to put the pegs onto the clothesline, and she cannot clean the showers.  She is no longer able to use her left hand to brush her hair whereas she did before the injury.  She is unable to put a bra on because it requires her to reach back or to push it to the front and this hurts her shoulder.  Her husband now must do that for her.

395I also accept that the need for the services to be provided has arisen solely because of the injury the plaintiff sustained to her shoulder in the fall and that the services would not have been provided but for the injury. 

396I accept that the plaintiff satisfies s28AI(1) of the Act and had it been necessary, she would have been entitled to an award of damages for past gratuitous care.

397I also accept, for the reasons I have already detailed in relation to the plaintiff’s claim for past gratuitous care, that the number of hours of domestic assistance she will require into the future will continue to be five hours per week. I find that she will have an ongoing need for gratuitous attendant care services into the future which will extend beyond six months. Because the terms of s28AI(2)(b) are not met, and the plaintiff will require services for more than six months, she would not have been disentitled to an award of damages.

398I accept that the value of attendant care is $29.77 per hour.[109]  For five hours per week, the value of attendant care will continue at a rate of $148.85 per week.  The five per cent multiplier (based on a life expectancy of twenty-four years) agreed by the parties to be applicable is 727.7.  On that basis, the future attendant care calculates at $108,318.15.  Had I been required to do so, I would have discounted this figure by 25 per cent for uncertainties related to the possible improvement of the plaintiff’s shoulder and for vicissitudes, to give a figure of $81,238.61.  I find that the appropriate figure for future gratuitous care would have been an award of $81,238.61.

[109]      Agreed between the parties

Past medical care

399There is little evidence about what past medical and like expenses the plaintiff has incurred.  The parties agreed the sum of $3,000 for past medical and like expenses.  I conclude that I would have allowed $3,000 for past medical and like expenses had it been necessary to do so.

Future medical care

400The plaintiff claimed the sum of $15,000 for future medical expenses.  This was based on Dr Mills’ assessment of the plaintiff. 

401In his report dated 8 June 2021, Dr Mills considered the plaintiff required outpatient review by a general practitioner, a physiotherapist and a pain specialist, the ongoing cost of which he assessed at between $3,000 and $5,000.  The defendant submitted that this should not be allowed because the plaintiff had been discharged with no physiotherapy and there was no evidence from a general practitioner, an occupational therapist, or a pain specialist to support the need for such treatment.  I agree.  In any event, even if I were prepared to make an allowance, I am not satisfied that the appropriate award would have been between $3,000 and $5,000.  The amount for future medical care changed from $1,000 to $2,000 in Dr Mills’ 17 September 2019 report to $3,000 to $5,000 in his 8 June 2021 report without explanation. 

402The plaintiff experiences some ongoing pain in relation to her shoulder.  There is also some probability that the plaintiff will develop osteoarthritic changes in her shoulder.  While this is low (five to ten per cent), I accept that these factors may mean that some specialist review of the plaintiff in the future will be required.  Other than Dr Mills’ evidence as to the cost of such treatment (the foundation for which is unclear), there is limited evidence available to me to make an assessment as to the cost of such future medical treatment.  Doing the best I can, based on all the evidence, I have concluded that $3,000 would have been a reasonable allowance for this aspect of any future medical and like expenses.

403Dr Mills also opined that the plaintiff could require review by a surgeon in relation to further surgical treatment for her shoulder; however, he also said in his report dated 17 September 2019 that “further surgery is unlikely to improve … [the plaintiff’s] current functioning” and he retained that view in his subsequent report dated 8 June 2021.  As already detailed, Dr Mills noted there were no plans for further surgery or hydrodilatation and the plaintiff preferred conservative treatment.  Additionally, the plaintiff had a “poor response” to surgery and Dr Mills’ opinion was that the likelihood that further surgery would improve the plaintiff was low.  Based on all the evidence, I conclude that there is unlikely to be a need for the plaintiff to undergo future surgery. 

404Accordingly, I find that the appropriate allowance for future medical costs, had it been necessary to award damages, would have been $3,000.

405Therefore, had it been necessary for me to assess damages, the total assessment I would have made would have been calculated as follows:

General damages	$150,000.00
Past economic loss	$8,753.75
Future economic loss/loss of earning capacity	Nil
Past gratuitous care	$33,299.23
Future gratuitous care	$81,238.61
Past medical care	$3,000.00
Future medical care	$3,000.00
TOTAL	$279,291.59

406The total figure is to be reduced by 50 per cent for contributory negligence.  Had it been necessary to award damages to the plaintiff, the damages I would therefore have awarded the plaintiff would have totalled $139,645.79.

Conclusion

407There will be judgment for the defendant against the plaintiff.

408I will hear from the parties in relation to appropriate orders and costs.

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