Vasilikopoulos v New South Wales Department of Housing

[2009] NSWDC 114

CITATION:	Vasilikopoulos v New South Wales Department of Housing [2009] NSWDC 114
HEARING DATE(S):	6, 7 and 8 May 2009
JUDGMENT DATE:	5 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the defendant against the plaintiff; parties to be heard on costs before final orders are made.
CATCHWORDS:	TORTS - Negligence - Personal injury - Rented residential premises - Injury to member of tenant's household - Fall in bathroom - Unsuitability of bathroom faciltities due to resultant condition from two total knee replacements - Liability of landlord - Whether a relevant duty of care and breach thereof - Duty limited to remedying defects in the premises - Whether a conventional bathroom can be a dangerous defect - Contributory negligence - Assessment of damges
LEGISLATION CITED:	Civil Liability Act 2002, ss 15(2), 15(3) and 16(1) Housing Act 2001 Residential Tenancies Act 1987
CASES CITED:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bryant v New South Wales Department of Housing [2007] NSWDC 208 Cavalier v Pope [1906] AC 428 Donoghue v Stevenson [1932] AC 562 Gray v Queensland Housing Commission [2004] QSC 276 Indermaur v Dames (1866) LR 1 CP 274 Jones v Bartlett (2000) 205 CLR 166 Le Lievre v Gould [1893] 1 QB 491 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Parker v South Australian Housing Trust (1986) 41 SASR 493 Roads and Traffic Authority v McGregor [2005] NSWCA 388
PARTIES:	Betty Vasilikopoulos - Plaintiff New South Wales Department of Housing - Defendant
FILE NUMBER(S):	No 3084 of 2008
COUNSEL:	Mr AJ Lidden SC and Mr PN Khandhar for Plaintiff Mr MA Barko for Defendant
SOLICITORS:	Brydens Law office for Plaintiff Deacons for Defendant

JUDGMENT

1 In this action the plaintiff, Betty Vasilikopoulos, fell to the floor of her bathroom at home on 9 December 2007 as she attempted to step out of the bathtub after having a shower. The plaintiff shared the premises, a home unit at Leichhardt, with her husband Athas Vasilikopoulos and had done so since September 1987. The premises were occupied under a tenancy agreement made on 10 September 1987 between the defendant, the New South Wales Department of Housing, as landlord and Mr Vasilikopoulos as tenant. The unit comprised two bedrooms, a living/dining room, kitchen, laundry and bathroom; the bathroom had a toilet, washbasin and conventional bathtub with a shower above it.

Context of the case

2 On 12 September 2006 the plaintiff had a right knee replacement and on 12 June 2007 she had a left knee replacement. The result of the surgery apparently made it difficult for the plaintiff in having a shower to get into and out of the bathtub. Indeed, in late-September 2007 she fell in the bathroom onto her knees while doing so because the height of the bathtub was too high to comfortably negotiate and her general practitioner, Dr P Rajendran, on 28 September 2007 wrote to the defendant to see “if the shower could be fixed at the earliest to prevent her having another fall and injuring her knees.” On 5 October 2007, after the plaintiff had another fall in the bathroom a couple of days earlier, Dr John Psarommatis wrote to the defendant requesting “immediate attention especially in the bathroom and toilet area before a catastrophic accident occurred undoing whatever benefit was obtained by her operations (total knee replacements).” It seems that in the meantime, after Dr Rajendran’s letter, the defendant sent tradesmen to measure the bathroom for appropriate alterations but no work was carried out to do so. On 12 November 2007 Jane McDonald, an occupational therapist with the Sydney South West Area Health Service of New South Wales Health, wrote to the defendant after a joint visit to the plaintiff’s unit with Vince Tizzone of the defendant setting out the modifications required to the bathroom, including removal of the bathtub and installation of a shower recess with grab rails; sketches of what was required were attached. That visit occurred after an initial letter to the defendant from Ms McDonald on 25 June 2007 seeking removal of the bathtub and installation of a walk-in shower with rails.

3 It should be added that records of the defendant disclosed the plaintiff’s daughter on 18 September 2006, shortly after the first knee replacement, reported to the defendant a need for a grab handrail in the bathroom. The matter was treated by the defendant as a “fault” and given “Priority 1” for remedial action. No work, however, was performed. Then, on 9 December 2007 the subject fall occurred causing injury to the plaintiff of a fractured left ankle. Although aggravation to the knees occurred that shortly resolved but the injury to the left ankle was said to affect the plaintiff’s personal, domestic and social life in a continuing way; she had retired from the workforce as a shop assistant in 2004. The modifications to the bathroom as required were commenced on 10 January 2008 and completed on 7 February 2008 at a total cost of $8,965.79.

The claim and the defence

4 The plaintiff’s claim was brought in negligence against the defendant in its capacity as owner/landlord of the premises for breach of its duty of care to the plaintiff to provide premises which were safe for use as a home. The specific omission relied upon was that it did nothing to modify the shower facilities in the bathroom, notwithstanding advice as to their inadequacy and agreement to make the modifications requested, so that they were suitable for the plaintiff’s needs.

5 The particulars of negligence pleaded were:

a. “ Failing to take any or any adequate precautions for the Plaintiff’s safety;
b. Putting the Plaintiff in a position of peril in the circumstances;
c. Failing to provide the Plaintiff with a shower which was suitable for her needs;
d. Having received correspondence in respect to two earlier falls failing to modify the Plaintiff’s shower as a matter of urgency;
e. Failing to provide the Plaintiff with a portable shower or other short term measure so as to accommodate her needs whilst the premises were modified;
f. Failing to provide the Plaintiff with short term alternative premises so as to allow her to take a shower;
g. Failing to heed the Plaintiff’s complaints and those of her doctor as to her need for a shower which was not atop a high bathtub.”

6 As a result of the said failures it was pleaded the plaintiff suffered loss and damage from her injuries. The heads of damages concerned non-economic loss, out-of-pocket expenses and domestic assistance; no claim was made for economic loss due to the plaintiff’s retirement from the workforce in 2004.

7 For the defendant, it was admitted it was aware that the plaintiff had undergone two total knee replacements but did not admit she had any difficulty getting into or out of the bathtub or that the two falls in September/October 2007 occurred. As to the failure to modify the shower so as to be fit for use by the plaintiff, it was pleaded the defendant had no obligation to do so and, in any case, no such modifications had been made by the time of the plaintiff’s subject fall on 9 December 2007. The allegations of negligence were denied and the alleged injuries sustained and consequent disabilities were not admitted. By way of defence, contributory negligence by the plaintiff was pleaded for failure to have regard for her own safety.

8 It is fair to say that the plaintiff’s claims were vigorously defended as to both liability and damages. Specifically, a primary submission of the defendant was that it had no responsibility to make the modifications sought by the plaintiff, whether under the tenancy agreement or otherwise, and its only liability was the ordinary common law duty of a landlord/owner of a residence. For instance, it was emphasised that the claim was brought in negligence and no reliance was placed, nor could it be, on the duties of the defendant under the Residential Tenancies Act 1987 or the Housing Act 2001 to make any modifications to the premises. At most, as it was conceded but which was not the case here, if modifications were done by the defendant negligently thereby causing loss or damage to the plaintiff then that would clearly be a breach of the duty of care that it had. Thus, and as counsel put, whilst some duty of care existed in the defendant the nature and extent of that duty in the present circumstances did not extend to making modifications to the bathroom to make its facilities more suitable for the plaintiff’s needs following her two total knee replacements.

9 The provisions of the Civil Liability Act 2002 apply to the determination of this matter.

Plaintiff’s background

10 The plaintiff was born in Greece on 5 May 1948 and so was 58 years of age at the time of the accident and 61 years at the date of trial. She migrated to Australia in 1966 alone after leaving school at 12 years of age and obtained a job as a process worker at National Can (NSW) Pty Limited for a couple of years. She then did cleaning work at Gladesville Hospital for about a year until she married Mr Vasilikopoulos in March 1968; two children were born from the marriage in 1969 and 1975. Remaining in the workforce, the plaintiff had various semi-skilled jobs from 1968 in factories but in 1978 she worked in takeaway food shops as a shop assistant until her retirement from work in 2004 at only age 56 years. With her husband and children she moved into the subject premises in 1987. It seemed she developed osteoarthritis in the knees which made work difficult and, eventually, on 2 September 2006 she had the right knee replacement and the left knee replacement on 2 June 2007; by that stage the children had left home and she and her husband remained in the unit at Leichhardt.

11 The plaintiff described the layout and facilities in the bathroom existing as at the year 2006. There was a toilet, a washbasin and a built-in bathtub against the wall with a shower over the bathtub which had its side at a height of about 600mm above the floor; the plaintiff said there were no handrails to hold onto to get into and out of the bathtub when taking a shower.

12 After the first knee replacement operation to the right knee in September 2006 the plaintiff was discharged from hospital after six days. At first, her mobility was very impaired and her youngest daughter, Maria, assisted her at home; she used a walking frame for a short time but then used a walking stick for about four months when she was able to return to perform the ordinary household duties she had always done of cooking, cleaning, washing up and laundry work. In the following months the plaintiff said she had difficulty with showering in getting into and out of the bathtub. The plaintiff was a lady of sizeable proportion and before the surgery she weighed 116kgs which had to be reduced to enable the operation to proceed – she successfully achieved 92kgs by adjusting her diet. The second knee replacement in June 2007 involved similar consequences.

13 By December 2007, however, just before the subject fall, she weighed 96kgs and presently, due to an inability to exercise as much, she said she weighed 122kgs. The assistance provided the plaintiff after each of the two operations by both of her daughters, Maria and Kaliopy, lasted for some three or four weeks and involved the care of her while showering but then she was able to shower herself with her daughters helping her when they happened to be present. That was the position just before the subject fall. In the six-week period after each operation the plaintiff used a board over the bathtub to sit on to enable her to swing both legs down to the floor.

14 In late-September 2007 the plaintiff, in the course of getting out of the bathtub after a shower, fell and finished up on top of the toilet suite as she grabbed to steady herself – she said she hurt her leg and thigh and sustained some bruising. It was then Dr Rajendran wrote to the defendant requesting something be done to fix the shower after being consulted by the plaintiff for her injuries. Then, early in the next month the plaintiff had a similar fall and hurt her shoulders as she grabbed the washbasin to break the fall. Dr Psarommatis wrote to the defendant and expressed the belief that the bathroom required immediate attention. The plaintiff said no one from the defendant spoke to her about the situation. However, by this time she said she had recovered from the second knee replacement and had no need to use a walking stick. Indeed, the operations were so successful she said her knees “felt like they were my own.”

The accident and effects

15 It was at about 10.00am on 9 December 2007 the plaintiff showered; she did so without any assistance. After drying herself she raised her left leg over the side of the bathtub to get out with the right leg still in the bathtub and then, as she said, “don’t know what happened, I just slipped.” However, later in evidence she denied slipping and maintained “I didn’t slip, I fell.” Even so, she said she landed onto her left leg and foot.

16 The plaintiff was helped to her feet by her husband and rested on the lounge. She did not think the fall was as serious as the two previous falls and did not experience any immediate pain. However, later in the day she sought comfort from her eldest daughter, Kaliopy, who took her a couple of days later to a general practitioner at a medical centre at Wentworthville near her daughter’s home.

Injury to the plaintiff

17 Shortly after the fall the plaintiff’s left ankle became swollen and discoloured with bruising. At the Wentworth Medical Centre, Dr Alfred Renigeris arranged for x-rays which demonstrated a fracture of the left fibula above the left ankle joint and he applied a below-knee full cast. Numbness in the left foot and occurred after nine days and there was serious swelling of the toes and with pain in the left leg and foot which caused Kaliopy to cut the plaster cast. With the foot still painful, the plaintiff on 21 December 2007 presented to the Emergency Department of Fairfield Hospital where a half-plaster was fitted. On 8 January 2008 she consulted Dr Rajendran who referred her to the Orthopaedic Clinic at Royal Prince Alfred Hospital on 9 January 2008 where a special compression “moon boot” was provided for the left foot and ankle. On 18 January 2008, as reported by Dr Rajendran, the hospital reviewed her and found the fracture had healed so that normal weight bearing could occur. The boot was worn for eight or nine weeks.

18 In his report of 18 February 2009, Dr Rajendran said he again saw the plaintiff on 17 September 2008 when she complained of left ankle pain, although he noted there was no deformity or swelling; analgesics were prescribed. Dr Rajendran offered this opinion and diagnosis:

“Mrs Vasilikopoulos has suffered an undisclosed fracture of the left distal fibula which was treated non-operatively. She continues to suffer from left leg/ankle pain, especially on walking long distances. She has been advised further investigations and orthopaedic review if pain persists.”

19 For herself, the plaintiff said she still used a walking stick and limited walking to 10 minutes because the left ankle was painful all of the time, particularly on cold mornings, for which she takes Panadol. At present, the plaintiff said her activities were affected because balance tends to be lost in the left ankle joint and stairs were very difficult to negotiate other than one at a time. For treatment, she applies hot packs to the injured ankle and uses ointment; she sees her general practitioner, Dr Peter Calligeros, for review from time-to-time, including for high blood pressure.

20 A surgeon and assessor of permanent impairment, Dr Richard Deveridge examined the plaintiff on 24 June 2008 and took a history from her consistent with the evidence of the plaintiff. Dr Deveridge said in his report of 1 July 2008:

“Your client sustained fracture of the distal fibula and probably also a partial tear of the lateral ligament complex as a result of the fall on 9.12.2007. The fracture has healed but she has ongoing disability with left ankle/foot aches, pains, stiffness and loss of agility. On the balance of probabilities, residual disability in the left ankle and lower leg is attributable to the fall on 9.12.2007. As far as I could determine, she had obtained an excellent result from the previous bilateral knee replacements, and her current disability stems from the fall on 9.12.2007.”

21 Dr Anthony Smith, an orthopaedic surgeon qualified for the defendant, saw the plaintiff on 1 October 2008 and in his report that day found “there is an obvious relationship between the slip and fall and the ankle injury.”

Liability – Whether duty of care and any breach

22 The primary issue argued in this case was the liability of the defendant for what occurred to the plaintiff in falling in the bathroom on 9 December 2007. Specifically, it was submitted there was no duty of care and, in any event, if there were a duty the circumstances of the fall meant no breach had been committed. The failure of the plaintiff to attend to her own safety in using the bathtub was submitted to result in a large measure of contributory negligence even if the defendant be found to have some primary responsibility.

23 For the plaintiff, her case was based on the proposition that the defendant had the ordinary duty of care to her owed by an occupier of premises. There was, as her counsel put, a foreseeability in the defendant of the risk of injury associated with the plaintiff’s use of the bathtub due to the condition of her knees after the replacement surgery – although the bathtub was of a conventional type, it became a defect once the defendant as landlord became aware of its unsuitability for the plaintiff and failed to remedy the fault. It was emphasised here by her counsel that it was common ground the defendant knew of the unsuitability of the bathroom facilities having in mind the two knee replacements and, indeed, it had agreed to remedy the situation. However, and beyond a reasonable time to do so, no action was taken and the accident causing injury to the plaintiff resulted. Liability, said counsel, was clearly established. As to contributory negligence, counsel simply suggested there was really no question that it did not exist in the circumstances here of the fall.

24 I have to say at the outset that I have some difficulty in accepting the submission of the plaintiff’s counsel that the defendant’s duty of care here was that of the occupier of the home unit concerned. The duty in that respect was to take such care as is reasonable in the circumstances, that is reasonable care to avoid foreseeable risk of injury: see Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The defendant was certainly the landlord, even perhaps the owner, but that did not in itself mean it “occupied” the premises in the sense it was present to direct what was done on the premises. Further, the plaintiff was not the tenant but rather it was her husband Mr Vasilikopoulos who was the tenant and she was a member of his household. As Gummow and Hayne JJ said in Jones v Bartlett (2000) 205 CLR 166 at 215:

“The relationship between landlord and tenant is so close and direct that the landlord is obliged to take reasonable care that the tenant not suffer injury. In considering the degree of care which must be taken, and the means by which a tenant may be injured, it must be borne in mind…that ordinarily the landlord will surrender occupation of the premises to the tenant . Thus, the content of any duty is likely to be less than that owed by an owner-occupier who retains the ability to direct what is done upon, with and to the premises. Broadly, the content of the landlord's duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence .” (emphasis added)

25 In my view, to state any duty of care of a landlord in terms by reference to that of an ordinary occupier could easily lead to error in identifying the scope of the duty in any particular situation and, just as importantly, in determining whether any breach thereof had occurred. Thus, in present respects the focus is to be on the state of the premises, here the bathroom, as to whether at the time of the plaintiff’s fall in December 2007 they were reasonably fit for habitation as a domestic residence.

26 It is helpful, I think, in ascertaining the nature and scope of the duty of care of a landlord to a tenant (and to members of the tenant’s household) to shortly review the development of the law in this respect.

27 In Cavalier v Pope [1906] AC 428, the wife of a tenant sued the owner of a house for damages for injury caused by the dangerous state of the kitchen floor for want of repair. The owner’s agent had promised that repairs would be effected but nothing was done. The House of Lords held unanimously that the wife, being a stranger to the tenancy contract, had no claim against the owner. However, and apart from contract, Lord James of Hereford considered whether there was any other form in which the wife’s claim could be maintained. His Lordship said (at 431):

“It was ably argued at the Bar that, as the premises belonged to the defendant, he must be taken to be in possession of them, and that, therefore, a duty arose to maintain them in a condition that would not cause injury to anyone who came upon them. But there seems to be a fallacy in this argument. The defendant was not in actual possession of the house in question, and did not occupy it. The plaintiffs were the occupiers, and the statement of claim so alleges. No duty is cast upon a landlord to effect internal repairs unless he contracts so to do.”

28 In his speech in that case, Lord Artkinson said (at 432):

“I am unable to understand how the representation of the existence of a present intention to do a certain act at some future time, unless it amounts to a contract…can create any legal obligation whatever….

… it is well established that no duty is, at law, cast upon a landlord not to let a house in a dangerous or dilapidated condition, and further, that if he does let it while in such a condition, he is not thereby rendered liable in damages for injuries which may be sustained by the tenant, his (the tenant's) servants, guests, customers or others invited by him to enter the premises by reason of this defective condition…

… one of the essential facts necessary to bring a case within that principle ( Indermaur v Dames (1866) LR 1 CP 274) is that the injured person must not have had knowledge or notice of the existence of the danger through which he has suffered. If he knows of the danger and runs the risk he has no cause of action….”

29 However, in Australia the law has moved forward. In Parker v South Australian Housing Trust (1986) 41 SASR 493 at 516-517, King CJ considered the supposed rule in Cavalier v Pope against any duty of care of a lessor towards a member of the tenant’s household to be “inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson [1932] AC 562.” As Gaudron J commented in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 358:

“It cannot, in my view, be doubted that the law has now developed to the point that, so far as concerns premises leased for residential purposes, the relationship between a landlord and those who constitute a tenant's household is one that gives rise to a duty on the part of the landlord to take reasonable care for their safety by putting and keeping the premises in a safe state of repair.”

30 The majority of the High Court in Northern Sandblasting declined to follow Cavalier v Pope and, in general terms, stated the position consistently with what Gaudron J said.

31 Jones v Bartlett was a case in which the adult child of the tenants walked into a glass door and received severe laceration injuries for which damages were claimed for negligence. In denying relief to the child, Gleeson CJ focussed on the test of the duty being to remedy dangerous or defective conditions and observed (at 177) that “all residential premises contain hazards to their occupants”; and Gaudron J (at 188–189) did not see any requirement to replace, as was the glass door in that case, items which were undamaged and in good working order. Her Honour (at 192) effectively repeated the formulation of the duty as she expressed it in Northern Sandblasting, and as was consistent with the approach there by Brennan CJ, in terms that the landlord should ensure the premises were as safe from defects as reasonable care and skill could make them. To use the words of Gummow and Hayne JJ in Jones v Bartlett (at 215), as cited above, the landlord had a duty to keep the premises “reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.” It will be clearly apparent, then, that in formulating the landlord’s duty of care the authorities refer to the need to remedy “defects” known or ought to be known by the landlord which make the premises unsafe for the use to which they are put. And, as Gleeson CJ observed in Jones v Bartlett (at 177), making something safer “does not mean it is dangerous or defective.”

32 Gummow and Hayne JJ in Jones v Bartlett (at 217) referred to a dangerous defect as being “dangerous in a way not expected by their normal use…ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.”

33 In Gray v Queensland Housing Commission [2004] QSC 276, Chesterman J had to consider the liability of an owner of premises to a tenant who slipped and fell on a ceramic tiled floor and sustained an injury to the left knee. In finding the fall was not caused by any condition of the house which was fit for habitation so that the fall was not the result of any breach of duty by the owner, his Honour referred to the recent authorities of Northern Sandblasting and Jones v Bartlett and drew (in para[22]) the proposition that:

“…the duty imposed by the general law upon a landlord I take that duty to be that a landlord must exercise reasonable care not to let premises containing a defect in features or fittings which is of such a nature that it is likely to cause injury in the ordinary occupation of the premises. The duty extends only to the repair or removal of defects of which the landlord knows or which are obvious on an inspection of the premises...The duty is thus concerned with the repair or removal of defects which a landlord might reasonably foresee would cause injury during the ordinary course of occupation by the tenant.”

34 In the present case, it was not argued for the plaintiff, nor do I think it could have been, that the configuration of the bathroom facilities with the shower over the bathtub made them unfit for habitation as a domestic residence so as to render usage unsafe. Use of the bathtub as a bathtub without the use of the shower would have had the same result. The plaintiff with her family had lived in the unit for 20 years without any apparent difficulties with the bathroom. It was a conventional bathroom for a home unit of its size and type. And neither was it argued, nor do I think it could have been, that the bathroom facilities contained some inherent defects needing remedial action or otherwise required repairs. Plainly, in my view, the bathroom was fit for its intended use. The real vice complained of was that the bathroom became unsuitable for the plaintiff after she had had the two knee replacements and faced a risk of injury by falling in getting into and out of the bathtub. Of course, that is a risk any use of a conventional bathtub faces – but it cannot be said to be a “defect” in the facility let alone a “dangerous defect.”

35 If the duty of care as stated in Cavalier v Pope be applied then the plaintiff’s case must surely fail because the defendant here was not in possession of the premises, it had no duty to effect any work to the bathroom to make it more suitable for the plaintiff’s needs as they were after the knee replacements and the plaintiff herself was not the tenant. But even given that the law, in Australia at least, has developed beyond Cavalier v Pope to be as stated in Northern Sandblasting and Jones v Bartlett, it has not, in my view of the authorities, extended beyond the duty of a landlord to remedy defects which the landlord knows or ought to know make the premises unsafe for habitation as a domestic residence. Here, I repeat, there were no defects in the bathroom only that the facilities had become unsuitable for the plaintiff following her knee replacements. I do not see how, but as the plaintiff’s counsel suggested, something unsuitable can become a defect once there is knowledge of it. It would be a step too far, it seems to me, to extend the duty of a landlord from the concept of “defects” to one of “unsuitability” in the facilities provided to a tenant or to members of a tenant’s household. This is consistent with the approach I adopted in Bryant v New South Wales Department of Housing [2007] NSWDC 208 in para [54].

36 In the result, I conclude that in the circumstances here the defendant did not owe any relevant duty of care to the plaintiff. As Lord Esker MR observed in Le Lievre v Gould [1893] 1 QB 491 at 497, “a man is entitled to be as negligent as he pleases towards the whole world if he owes them no duty.” It follows that the plaintiff’s fall on 9 December 2007 was not the result of any breach of duty on the part of the defendant. The defendant is, therefore, entitled to a verdict.

37 Even if a duty of care were to exist, against what I have found, in the defendant to have a responsibility to make the bathroom more suitable for the particular needs of the plaintiff, my view is that it did not commit any breach of it. The plaintiff had two operations to replace her knees following which, without any request to the defendant, she obtained assistance in the domestic situation for her personal bathing needs from her daughters and by the use of a bathtub board over the bathtub to sit on while getting into and out of the bathtub. Those measures are unexceptional and as may be expected in the ordinary course of recovery from the type of surgery received. It was not until she had the first fall that Dr Rajendran on 28 September 2007 wrote to the defendant about the problem and then Dr Psarommatis on 5 October 2007 wrote after the second fall. In November 2007 Ms McDonald, after a visit to the home unit with Mr Tizzone from the defendant, provided detailed sketches of the changes sought to the bathroom. Regrettably, the plaintiff fell shortly thereafter on 9 December 2007 before any work had been done but after approval by the defendant to make modifications which duly occurred in January 2008.

38 Where arrangements had been settled for the modification work to be done, I think the satisfaction of any duty on the defendant would have been within a reasonable time. The time-frame, in my view, for work of the nature concerned was not unreasonable such as would make the defendant in breach of any duty.

39 In the meantime, of course, the plaintiff may reasonably be expected herself to have the duty to put in place appropriate measures to safely have a bath or shower, as indeed she did after each knee replacement operation. Apart from assistance by her family, the use of the bath board was an obvious means to enable bathing by herself, as she had used one after each operation. That the plaintiff did not take such steps pending the modification work must sound in some contributory negligence on her part if the defendant were to be found primarily liable in negligence for breach of some duty of care. It is difficult to be precise as to the degree of any such contributory negligence because one has to balance it against what the defendant failed to do and I have found no negligent omission by the defendant. Even so, I think some allowance for contribution by the plaintiff would be appropriate here but in a modest amount of, say, 10 per cent. I would so minimise any contribution by her as on the occurrence of the fall it may well have involved “mere inadvertence, inattention or misjudgement” on her part: see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310.

40 Although the plaintiff’s claim must fail, it is appropriate to shortly deal with damages.

Damages

41 The heads of loss claimed, as stated earlier, were for non-economic loss, out-of-pocket expenses and gratuitous domestic assistance. The thrust of the defendant’s opposition was that the plaintiff suffered a minor injury only of a line fracture not involving the ankle joint and there was no evidence of any consequent arthritic changes. The plaintiff was said by counsel to be exaggerating her disabilities which had really resolved. In the domestic situation the plaintiff was able to do many tasks and after the fall continued to receive assistance from her daughters which she had enjoyed beforehand following the knee replacements. For the plaintiff, counsel relied on acceptance of her evidence and that of her daughters in relation to a person who was extremely house proud but now unable to do the domestic tasks. She had, on her counsel’s approach, suffered a relatively serious injury with ongoing disabilities.

42 Medical evidence: Dr Anthony Smith examined the plaintiff on 1 October 2008 for the defendant. He noted the plaintiff’s complaints from the injury of less mobility, swelling of the left leg and pain from time-to-time on weather changes and after lengthy standing and some numbness about the toes but which was improving. Dr Smith on examination noted she was “a little overweight…an antalgic limp favouring the left lower limb…some swelling about the left ankle…” This opinion was then expressed:

“This woman gives a history that would suggest that she slipped and fell at home when getting out of a bathtub on 9.12.07, sustaining a minor fracture to the left ankle which was treated appropriately and has done well.

The swelling will occur at the end of the day for some 24 months down the track from 9.12.07. She will have some occasional discomfort for at least two years from time-to-time with, say, lengthy periods on her feet.

Her current complaints would be within the bounds of reason. The fracture has united. She will not get arthritis. There will be no long term sequelae subsequent to this injury.

There is an excellent prognosis.”

43 Dr Smith added the view that the plaintiff has “substantially recovered” and did not require any domestic assistance apart from when she had the ankle plaster in place. In a second report of 20 April 2009, Dr Smith effectively confirmed his earlier views.

44 Dr Richard Deveridge provided a report dated 1 July 2008 for the plaintiff after examining her on 24 June 2008. He said:

“The injury has reduced her capacity to stand, walk, crouch, and negotiate stairs and inclines…She has reasonably required additional assistance with domestic home care tasks. I would estimate the domestic home care requirement at 4 to 6 hours weekly, extending from the time of the fall into the indefinite future…

Future treatment will be along conservative lines. She requires non-prescription analgesia on a regular basis (Panadol)…She may benefit from a few sessions of physiotherapy ($65 per session) to the left ankle. She needs suitable footwear with good ankle support. She is not expected to come to any surgical procedures, as a result of the subject fall.

The left lower leg condition is chronic and stabilised. She has reached a point of maximal medical improvement. The fracture was largely extra articular, so it should not predispose to significant secondary osteoarthritis or other adverse sequelae. The prognosis remains guarded.”

45 The essential difference between Dr Smith and Dr Deveridge was that the former thought the plaintiff had substantially recovered within 10 months and with occasional discomfort until December 2009 whereas the latter found an ongoing chronic condition with a reduced capacity. The prognosis was respectively “excellent” and “guarded.” On the domestic assistance side, Dr Smith considered none was needed, other than for the period of the plaster cast, but Dr Deveridge assessed it at four to six hours weekly from December 2007 into the foreseeable future.

46 Dr Deveridge’s opinion was more consistent with the plaintiff’s evidence before me, but which I think was somewhat graphically over-stated and exaggerated as to her disabilities. I think the reality is that the plaintiff does have a disabling condition from the December 2007 fall which is chronic but stabilised; her subsequent weight gain clearly would not assist weight bearing on the left ankle and she continues to use a walking stick. Even so, Dr Deveridge thought only a relatively small amount of domestic assistance was required. For present purposes, I would lean towards the overall view of Dr Deveridge.

47 Non-economic loss: The claim was for assessment at 30 per cent of a most extreme case whereas the defendant put it at less than the 15 per cent threshold in s 16(1) of the Civil Liability Act but even if Dr Smith were accepted it would be no more than 18 per cent.

48 The plaintiff in her years after retirement from the workforce suffered a traumatic incident from which the recovery from her knee replacement procedures was interrupted. The injury itself was of a minor fracture which was successfully treated but with ongoing disabilities in the left ankle affecting her mobility and day-to-day domestic activity. Her condition does not require further treatment, other than perhaps some physiotherapy to the ankle and Panadol for pain, although the complaints of pain and numbness will persist for at least two years from the date of the fall into the foreseeable future.

49 I would assess non-economic loss at 22 per cent of a most extreme case, that is $20,500 being 4.5 per cent of the maximum amount of $450,000.

50 Past out-of-pocket expenses: These were agreed in the amount of $460.20.

51 Future out-of-pocket expenses: The defendant suggested a small buffer of $1,000 whereas a buffer of $5,000 was sought for the plaintiff. Treatment and medication in the future will most likely be very minimal. I think an amount of $2,250 would be reasonable for this element.

52 Past domestic assistance: The claim was for 16 hours per week at a rate of $22.60 per hour (rate was agreed) for the 72 weeks since the December 2007 fall giving an amount of $26,035.20. The defendant conceded four to six hours per day of assistance for two months after the fall, one hour per day for the third month and nil thereafter; applying s 15(2) and (3) of the Civil Liability Act it was said the necessary “six hour six month” threshold had not been reached so that no amount was due: see also Roads and Traffic Authority v McGregor [2005] NSWCA 388.

53 I accept the plaintiff’s evidence that before her knee replacement operations she did the domestic work in the household; after each of the two procedures her daughters helped for three or four weeks and thereafter when they visited. For the period of eight or nine weeks after the subject fall the plaintiff had the plaster cast fitted when she did not do anything in the house and was looked after by her youngest daughter and husband.

54 Maria Lakis, the plaintiff’s youngest daughter, said in evidence she spent about 2.5 hours per day for three or four days a week doing domestic chores at the unit after the accident and that has continued to the present time. Kaliopy Panagopoulos, the plaintiff’s eldest daughter, in evidence said after the fall the plaintiff stayed with her and her family for three weeks so full care could be given. Now, she collects the plaintiff on Friday evening to take home for the weekend where she attends to all her mother’s needs.

55 I think the plaintiff ‘s claim for past domestic care of 16 hours per week for the 76 weeks from the date of the fall to the present time is reasonable at a rate of $22.60 per hour, that is, an amount of $27,481.60.

56 Future domestic assistance: The claim here was for the plaintiff’s future life expectancy of 27.56 years of 10 hours per week at a commercial rate of $30.00 per hour. The defendant resisted any amount being allowed.

57 Dr Smith said no assistance was needed other than when the plaster cast was fitted and that the plaintiff’s present symptoms should abate by December 2009 or, perhaps, by March 2010. At most, Dr Deveridge assessed four to six hours per day from the time of the fall into the indefinite future.

58 I would be prepared to allow 10 hours per week for the 26-week period to the end of 2009 at $22.60 per hour. There was no evidence from the plaintiff she desired or would accept commercial assistance; indeed, her family orientation suggested to me she would not. This gives an amount of $5,751.70 (multiplier of 25.45 on 5% tables). Thereafter, I would allow 6 hours per week for one year to the end of 2010 at $22.60 per hour, on the basis that any later care would not reach the required statutory threshold. This gives an amount of $6,902.04 (multiplier of 50.9 on 5% tables) but deferred for six months resulting in an amount now of $6,736.39 (deferred multiplier of 0.976 on 5% tables).

59 The total amount so calculated for future domestic assistance is $12,488.09.

60 Summary of damages: The amounts I would allow are $20,500 for non-economic loss; $460.20 for past out-of-pocket expenses; $2,250 for future out-of-pocket expenses; $27,481.60 for past domestic assistance; and $12,488.09 for future domestic assistance – the total damages are thus $63,179.89. Allowing 10 per cent reduction for contributory negligence, the resultant damages if the defendant’s liability had been established are $56,861.90.

Conclusion

61 The defendant did not, in the circumstances of this case, owe any relevant duty of care to the plaintiff. The fall by the plaintiff in her bathroom at home on 9 December 2007 was not the result of any breach of duty by the defendant. The plaintiff’s claim must accordingly fail and a verdict be given for the defendant. If the defendant had been found liable, damages are assessed in the sum of $56,861.90.

Orders

62 The defendant is entitled to a verdict against the plaintiff. The parties will be heard on costs before final orders are made.

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