Ventrice v Joneal Pty Ltd
[2009] VCC 463
•19 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-00633
| Lina Ventrice | Plaintiff |
| v | |
| Joneal Pty Ltd (trading as Melrose Reception | Defendant |
| and Convention Centre) |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11-13, 16 March 2009 |
| DATE OF JUDGMENT: | 19 May 2009 |
| CASE MAY BE CITED AS: | Ventrice v Joneal Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 463 |
REASONS FOR JUDGMENT
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Catchwords: TORT - NEGLIGENCE – Duty of Care – damages – aggravation of pre- existing injury to back, right shoulder and neck due to slipping on wet dance floor – claim for past and future medical and pharmaceutical expenses – claim for past and future care services – general damages
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell S.C. | Nowicki Carbone |
| With Mr C. Thompson | ||
| For the Defendant | Mr C. Grainger | Wisewoulds |
| HER HONOUR: |
1 The plaintiff attended a wedding reception on 11 February 2007 at the reception centre occupied by the defendant. The reception was attended by more than 600 guests and took place in the centre’s ballroom. In the middle of the carpeted ballroom, there was a sunken, round wooden dance floor. There was a balustrade around the carpeted area of the ballroom, with access to the dance floor via two separate stairways comprising two steps each. That night, there were round tables and chairs for guests on the carpeted area of the ballroom. There was also a row of round tables on the dance floor. They were spread around its perimeter. Food and drinks were served to all the tables by staff, but guests were expected to pour their own drinks.
2 The plaintiff says that while dancing a circle dance with other guests on the dance floor between 9.30 and 10.00 that evening, she slipped on some liquid on the dance floor and fell onto the floor, aggravating pre-existing injuries to her right shoulder, neck and back. She says that the defendant was negligent in failing to take reasonable care to prevent her injury by placing tables on the dance floor. She brings her claim at common law and pursuant to the provisions of the Wrongs Act 1958 (‘the Act”). She claims general damages as well as damages for past and future medical and pharmaceutical expenses, and for past and future care services.
3 The defendant admits that it was the occupier of the reception centre[1] but says that it had a system for keeping the ballroom clean and for observing and cleaning spillages which included inspection of the dance floor prior to the commencement of dancing. It says that this system was a reasonable response by the defendant to the prospective risk of injury to patrons at its functions. The defendant says that any allowance for damages should be discounted to take account of:
[1] Thereby attracting the provisions of the Wrongs Act 1958
•
the pre-existing injuries to the back, right shoulder and neck from various accidents which caused the plaintiff pain and limited her enjoyment of life but which were not fully disclosed to the medical experts who examined her in relation to the wedding fall;
•
the medical evidence to the effect that the material contribution of the fall to her condition was short-lived;
•
video surveillance material and other evidence, such as her capacity to travel to Italy for ten weeks in 2007, suggesting that her incapacity is not as great as she suggested;
•
the evidence that some of the past and future care services relate not solely to the plaintiff’s injury but rather jointly for the upkeep of her injured husband.
Negligence
4 The plaintiff gave evidence that the dance floor had a row of round tables around it and that beer, wine, champagne and soft drinks were served at those tables. Her table was not on the dance floor. During the evening she said she saw people moving about carrying drinks. She went to the dance floor at around 9.30 p.m. to do a folk dance holding hands with seven or eight other people. The dance floor was very crowded. She was wearing comfortable shoes with a rubber sole. They danced around in a circle a few times and then she slipped, twisting around and falling to the dance floor about two metres from the nearest table. She felt pain in her right buttock, right shoulder, neck, back and right leg and right thumb. She felt confused and was shaking. She saw a liquid on the floor. She said she did not see anyone cleaning the dance floor while she was at the function, nor was she warned to take care on the dance floor. She was helped back to her table by another female guest and noticed that the back of her dress was all wet. She sat for a few minutes at her table and then left the reception with her husband about ten minutes later. She did not report the incident to management on the night because she was embarrassed. She insisted that she rang the centre the next day and spoke to a man she thought was called Tony to tell him about the fall and he told her to see a doctor.
5 The plaintiff’s cousin, Mrs Catanzariti, attended the wedding reception and sat at a table with the plaintiff on the carpeted part of the ballroom. She saw people walking around the tables during the evening and saw children walking around with soft drinks. She danced in a circle dance with the plaintiff and said the dance floor was full. She said that they went around a few times in a circle and then she saw the plaintiff slip and fall. She noticed that the dance floor was wet. She said the plaintiff seemed in shock and was pale and shaking. With the help of another female guest, she helped the plaintiff up and back to her table. When the plaintiff was about to sit down, Mrs Catanzariti said she noticed the plaintiff’s dress was wet. She said the plaintiff left soon after the fall. She did not see any cleaning take place while she was at the reception, and did not see anyone clean the wet part of the floor. She said she told other dancers to be careful because the floor was wet, but did not report the fall to waiters or to management.
6 Mr John Toscano has been the assistant manager at the reception centre for the past fifteen years. He did not recall the function on 11 February 2007. He said that the centre has five to seven functions per week and three weddings per week with 600 or more guests. He said the centre did not have a male staff member called Tony in February 2007.
7 Mr Toscano said that for a function of that size he provides two waiters for every six tables and would have between fourteen to eighteen staff on duty. In addition, all the management of the centre would be present and occasionally some roaming staff such as hospitality students doing training. There is a cleaner looking after the toilets. The cold entrée is laid out on the table before the guests are seated, but the main course and dessert are served to the tables. He said it was common for there to be tables on the dance floor at Italian weddings and this was often requested by the families. He said that staff are briefed before each function to keep their areas clean and that the drinks at the tables are replenished before service. He said that the cleaner could be asked to clean spillages. He agreed that patrons walk around the ballroom holding drinks and that staff must move efficiently to stick within the timetable for the function. He agreed that there is no demarcation on the dance floor between the tables and the dancing area. He said that before dancing begins at a function management would walk around the perimeter of the dance floor and would see any shiny spots. He agreed that if liquid spilled on the dance floor where would be a real risk of someone slipping, and that it would be hard for a cleaner to see any spills when the dance floor was full of dancers. He said that the centre kept an incident book and there was no reference in that book to an incident that night. He said that if someone rang the centre after a function to complain about something his father, who is part of the centre’s management team, would deal with it. He agreed that patrons would be told to get medical attention, and that the centre would wait to see if there were any further developments.
8 Mr Dean Nugent, student, worked part-time as a waiter at the centre for two years up to 2007. He did not recall working on 2 February 2007. He said that there was a staff meeting before each function, and that sometimes management would tell staff to keep an eye out for things to clean up or to tell head waiters about. He agreed that with smaller weddings there were not usually tables on the dance floor. He said that as the evening wears on, and guests consume more alcohol, spillage is more likely. He said the lighting on the dance floor was not dimmed so that staff could see where they are going to serve drinks at the tables. He said there were posters around the kitchen about spillages but that in the staff meetings prior to functions this was not a regular topic of instruction.
9 I found the plaintiff and Mrs Catanzariti to be straightforward witnesses and I accept their uncontradicted accounts of the circumstances in which the plaintiff fell on the dance floor at the reception on that night.
10 In determining what reasonable care demanded of the defendant on 2 February 2007, the court is entitled to take into account common sense and the ordinary experience of life[2] The defendant accepted a booking for a reception on that evening for over 600 guests and provided a setup that included a row of tables on the dance floor around its perimeter. Contrary to the carpeted floor area in the rest of the ballroom, the surface of the dance floor was smooth and hard. Food and drinks were served at the tables on the dance floor. Guests poured their own drinks and moved between tables with drinks in hand. There was no demarcation on the dance floor between the seating area and the dancing area. With a function of that size, once general dancing began, the dance floor could be expected to be crowded and there was a risk that any spillage would be concealed from dancers. The plaintiff and Mrs Catanzariti said the dance floor was very crowded when they danced. They had no practical opportunity to look at the dance floor and see any spillages. In my opinion this set up carried an inherent risk, which was known to the defendant, of spillage of food or drinks on the dance floor. If spillage occurred, it was reasonably foreseeable in my opinion that a patron could fall and suffer serious injury, for example, by breaking limbs or hitting their heads on the floor.
[2] Evans v Repco Transmission Co. Pty. Ltd. [1975] VR 150 at 153
11 In these circumstances, I consider that because of the inherent risk of slippage on the dance floor, there should either have been no tables on the dance floor, or the seating area around the tables should have been clearly demarcated from the dancing area, for example, with the use of ropes. Alternatively, no dancing should have been permitted while the tables were located on the dance floor.
12 Even if I am wrong in this regard, and I accept that it was reasonable to put tables on the dance floor, I consider that, at the very least, given the inherent risk of spillage that night, there ought to have been a full inspection of the entire dance floor by management. Mr Toscano did not recall what happened on that night but said he would have stood on the perimeter of the dance floor and had a look for any spillage. Having regard to the fact that the dance floor was 21 metres in diameter, I do not consider that this inspection was sufficient. Whatever attention staff was supposed to pay to spillages, on this night the system adopted by management failed to detect the liquid on the floor that caused the plaintiff to slip and fall.
13 In determining whether the defendant has discharged its duty of care, I am required to consider the factors set out in section 14B(4) of the Act. The factors relevant to this case are those set out in sub-paragraph (a)-(f) and (g) of section 14B(4) of the Act.
14 Sub-section (a) refers to “the gravity and likelihood of the probably injury”. I consider that in this case the likelihood of injury was high, and, as the injury was could occur through loss of balance and falling with force on a hard surface, the injury was likely to be serious.
15 Sub-section (b) refers to “the circumstances of the entry onto the premises”. In this case, the premises comprised a function centre controlled by the defendant with the entry of guests and the layout of tables controlled by the defendant and with a dance floor which the plaintiff had no practical chance to assess prior to dancing.
16 Sub-section (c) refers to “the nature of the premises”. In this case, the defendant running the function knew of the number of guests who would be present on the night and that the dance floor would be used for dancing.
17 Sub-section (d) refers to the “knowledge which the occupier has or ought to have had of the likelihood of persons or property being on the premises”. It is clear that the defendant set up the tables on the dance floor and arranged for food and drink to be served to those tables and that it knew that large numbers of guests would be dancing close to tables on the dance floor where food and drink were served and that the plaintiff would have no practical chance to assess the safety of the dance floor prior to dancing.
18 Sub-section (e) concerns the age of the person entering the premises. Here, the plaintiff was 57 and the defendant could expect people of all ages to attend the wedding of a young couple.
19 Sub-section (f) concerns “the ability of the person entering the premises to appreciate the danger”. In my view it was clear that given the crowded dance floor the plaintiff had no capacity to appreciate the danger, and that one would not expect someone dancing to look closely at the floor.
20 Finally, sub-section (g) refers to “the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person”. I consider that the burden of completely eliminating the danger was small compared with the risk of the danger of injury from falling due to a spillage on the dance floor. This could have been accomplished by not having tables on the dance floor at all, or by demarcating the dance area from the tables, or by having a close and full inspection of the dance floor before any guests were permitted to dance.
21 I note that, in opening his case, counsel for the defendant indicated that his client relied on section 48 of the Act. He made no final submissions on this point. For the sake of completeness, I turn to the factors set out in sub-section 48(2)(a)-(d). I consider that it was probable that a fall would occur if care were not taken to prevent spillage on the dance floor; that it was likely that harm to a guest from slipping on the floor would be serious; that the burden of taking precautions against such spillage was small and involved little or no cost; and that there was no social utility in holding a function in an unsafe manner by allowing tables on the dance floor at which food and drinks were served and allowing dancing in that same area.
22 For the reasons outlined above I am satisfied that the defendant breached its duty of care to the plaintiff.
Damages
23 I turn to consider the plaintiff’s injuries resulting from the wedding fall. The claimed injuries are physical injuries only comprising soft tissue injury to the right shoulder and spine (neck and lower back) and aggravation of degenerative changes in the right shoulder, neck and lower back. In addition, the plaintiff claims she suffered a full thickness tear of the supraspinatus tendon of the right shoulder in the fall.
24 Counsel for the plaintiff produced written summary submissions as to quantum of damages. He submitted that she should be awarded $45,000 in general damages (on the basis that the sequelae of her injury will last for another five years or so) or, alternatively, $25,000 (if the Court finds that the injury resulting from the incident was of only 2 years’ duration).
25 Although there was evidence of gratuitous care services in the past provided after the wedding fall by the plaintiff’s daughter and husband for approximately eighteen hours per week, the sum sought by the plaintiff was based on twelve hours per week, at $21.68 per week, for 109 weeks to the date of the conclusion of the trial, which amounts to $28,357. In respect of future gratuitous care services to be provided by her husband and daughter, the plaintiff seeks the sum of $13,242.00 (calculated on the basis of 12 hours per week for one year).
26 The plaintiff seeks the sum of $1774.25 for past medical expenses and the sum of $745 for past pharmaceutical expenses. The sum of $2628.00 is sought for future medical and pharmaceutical expenses.
27 The total quantum of damages sought is $91,746.00 (if general damages of $45,000 are awarded).
28 The defendant submitted that the quantum of damages ought to be substantially discounted due to the plaintiff’s pre-existing neck, back and right shoulder injuries, her failure to disclose such injuries to a number of treating and medico-legal examiners, and her presentation on video surveillance footage which suggests that she is less restricted than she claims by her symptoms. I will deal with each of these issues in turn.
Pre-existing injuries
29 The plaintiff had a number of other accidents prior to her fall at the wedding in February 2007 (“the wedding fall”). She suffered a fracture to the left wrist in the early 1980’s from which she recovered. In March 1999 she fell at a Safeway supermarket and hurt her left foot and heel. On 19 April 1999 she was injured in a motor vehicle accident (“the 1999 car accident”), and, relevantly, hurt her neck and low back. She also had bilateral shoulder problems emanating from the neck. On 30 December 2000 she had a fall at a Safeway supermarket (“the 2000 supermarket fall”), landing hard on her back on a wet floor and suffered, relevantly, injuries to her neck, low back and shoulders. These injuries resulted in legal claims. The 1999 car accident and the 2000 supermarket fall are relevant to this case because the injuries sustained in them overlap with those alleged to have been sustained in this case. The plaintiff did not tell some orthopaedic surgeons she saw for medico- legal purposes in relation to the 1999 car accident (Professor Myers in 2001 and 2007, and Mr Hadley and Mr Shannon in 2002) about the 2000 supermarket fall. She did not tell Dr Lewi, her treating general practitioner in relation to the 2000 supermarket fall, that she injured her neck, lower back and right shoulder in the 1999 car accident.[3] She said this was because she was sent to different doctors for each of the claims and did not want to confuse them.
[3] The plaintiff was also involved in a further motor vehicle accident in June 2003, which she did not recall, but in which she suffered lumbar pain, bruised legs and pain in the left costal margin from the seatbelt.
30 The plaintiff agreed that she had treatment with medication and physiotherapy for the neck, back and right arm (affecting her arm up to the right shoulder) injuries sustained in the 1999 car accident, and that she took Traminal, Panadeine Forte and Celebrex for these symptoms which were prescribed by her then doctor, Dr Brodski, until some time in 2003. She agreed that her daughter helped her with housework, washing her hair and dressing until 2005.
31 The plaintiff also agreed that she saw Dr Lewi after the 2000 supermarket fall and was treated by him for symptoms in the right arm, neck and back until 2003. She agreed that she had an injection into the right shoulder as a result of this fall.
32 However, the plaintiff said that in the two years prior to February 2007 she was progressing well and having only minor pain in the right shoulder, back and neck, and that this was an improvement over her position in previous years . She was not having any treatment for these pains, and the pain did not prevent her undertaking her usual activities. The plaintiff was not challenged on this point. Her daughter said that her mother took a few years to get well after December 2000 but she did improve over that period and the amount of help she needed to give her decreased greatly. Ms Codespoti said her mother’s condition was “pretty good” in the months leading up to the wedding fall and that she only went to help her once or twice per week. Ms Codespoti’s evidence was unchallenged on this point.
33 The plaintiff also told Mr Kudelka, an orthopaedic surgeon who examined her for medico-legal purposes in November 2008 in relation to the 2007 wedding fall[4], of the 1999 car accident in which she hurt her neck and back, and that she had recovered from that accident. Professor Myers noted in December 2007 the history of a gradual improvement after the 1999 in the neck and back symptoms and that the plaintiff said she stopped seeing her doctor for them.
[4] He had also provided a medico-legal report in August 2002 in relation to the 1999 car accident, and noted the plaintiff’s complaint, inter alia, of neck and upper and lower back pain. He diagnosed a probable injury to her cervical discs and chronic strain of the attachment muscles to her cervical spine. He also diagnosed injury to her lumbar discs with aggravation to considerable degeneration of her L5/S1 disc and chronic strain of the attachment muscles to her thoracic and lumbar spine.
34 Dr Lewi, the plaintiff’s treating doctor since 2000, said that the last prescription he wrote for the plaintiff for Panadeine Forte prior to the wedding fall was in June 2003 after the car accident. The last complaint by her of shoulder pain prior to the wedding fall was recorded by Dr Lewi in November 2003, while her last complaint of lumbar pain was recorded by him in March 2005, and her last complaint of neck tenderness was recorded in December 2006. The last prescription for anti-inflammatories prior to the wedding fall was in October 2003.
35 Although Professor Myers did not get a history of the 2000 supermarket fall when he saw the plaintiff in 2001 in relation to the 1999 car accident, in late December 2007 when he saw her again he noted her comments that after the 1999 car accident her back and neck gradually improved and she stopped seeing her doctor for them.
36 At the hearing, Professor Myers said that the account given by the plaintiff to the court of an improvement in her right shoulder, back and neck symptoms in the two years prior to the wedding fall with only minor pain and no restriction in activities or treatment or medication was consistent with what the plaintiff told him in 2007. However, he agreed that he would have been more confident about his opinion if he had known of the other incidents including supermarket falls in 1996 and 2000 and the 2003 car accident.
37 Dr Shannon examined the plaintiff in 2008 in relation to the wedding fall but reported she did not tell him of the 2000 supermarket fall. She told him she did not recall the injuries from the 1999 car accident.
38 I consider that the evidence of the plaintiff and her daughter is broadly consistent with the clinical notes of Dr Lewi and his evidence, as well as that of Professor Myers and Mr Kudelka and I am satisfied that the sequelae of the 1999 car accident and the 2000 supermarket fall in terms of right shoulder, back and neck symptoms had largely abated some two years prior to the wedding fall. I note, however, that the plaintiff never returned to work after the 1999 car accident and needed help with her personal and domestic life as a result of that accident.
Injuries resulting from 2007 wedding fall
Significance of video surveillance footage39 The plaintiff said that since the fall in 2007 she has been seeing her doctor, Dr Lewi, for constant pain in her neck, back and right shoulder. She has been taking Panadeine Forte three times per day for her pain, as well as Endep (one at night), Voltaren (twice per day), Codapain as well as a medication to relieve the stomach problems brought about by the other medications. She needs help from her husband with dressing after her shower, and with a bit of light cleaning and cooking. Her daughter helps her by doing the shopping, cleaning the house, doing the washing, hanging the clothes and vacuuming. She said she can no longer dance or walk as she could prior to the fall, that her sleep is interrupted by pain, and that she has to use her left hand to do her hair and clean her face (she is right-handed) because since the wedding fall her right arm gets very tired and she cannot use it. She said she cannot write, or lift saucepans, or carry things with her right arm (unless they are very light). She agreed that she was walking, driving and carrying goods on the video surveillance material, but said that she was in pain even if she carried bags, and that the plant she carried was not heavy.
40 She agreed that the husband has had a bad back and been off work since 2005 and that he cannot bend to tie his laces. She agreed that the shopping done by the daughter is done for both of them. She said her husband helped her to dress in the morning and to undress at night, but agreed that there were times when he could not help her because of his own pain. She agreed that his pain disturbed her sleep, but said she was also in pain.
41 Her daughter said that after the fall her mother was more dependent on her help, and she was there “more or less every day”, spending two to three hours at her mother’s house, doing the washing, cleaning, cooking and house duties. Her daughter said the plaintiff did not sleep much at night, and tells her that her shoulder and back are painful and that she cannot do anything. She travelled with her family and the plaintiff to Italy for nine to ten weeks in 2007 but said the plaintiff took her medication while she was away and told her she was in pain in the shoulder, neck and lower back. Her daughter said that the plaintiff travelled with her to South Australia by car twice in 2008 for a few days, but that they took frequent stops and the plaintiff took her medication.
42 I have taken account of the radiological reports. I note that lumbar spine x-ray and CT scan of the lumbo-sacral spine in 2001 revealed some degenerative narrowing at the L5/S1 disc level consistent with degenerative arthritis[5] but that CT scan of the cervical spine was normal.
[5] Similar finding at that level were reported on x-rays in November 2003, March 2005 and February 2007.
43 In November 2003, ultrasound and x-ray of the right shoulder were normal except for “slight thickening” of the subdeltoid bursa and “minimal sclerosis along the greater tuberosity and along the under surface of the acromium”. In February 2007, similar tests revealed a small full thickness supraspinatus tear anteriorly measuring 6x6 mm with associated minor features of bursitis causing limited abduction and forward flexion and slightly limited external rotation suggesting associated mild adhesive capsulitis”. In September 2008, ultrasound guided steroid injection into the right shoulder confirmed the existence of a small full thickness supraspinatus tear anteriorly measuring 7x9 mm, as well as “associated bursal thickening and bunching with abduction” consistent with bursitis. It was noted that the “small old full thickness supraspinatus tear was “slightly larger than in February 2007”.
44 Dr Lewi has treated the plaintiff since October 2001 when he saw her in relation to the 2000 supermarket fall and concluded that she had suffered some injury to the lumbar spine and a mild rotator cuff injury in the right shoulder. At the hearing, Dr Lewi said he felt that there was some permanent damage to the right rotator cuff from the 2000 supermarket fall causing right shoulder symptoms, but he was uncertain whether there was a tear in the right rotator cuff before the 2007 fall, although he felt that if there was it was likely to be minor. He noted that on ultrasound the rotator cuff was intact in November 2003, that a small supraspinatus tear was reported on ultrasound in February 2007 and that in September 2008 ultrasound injection confirmed the tear was slightly larger than that identified in 2007. He felt that the fall in February 2007 could have caused the tear and some later trauma or jolt could have made it wider. Dr Lewi said the plaintiff’s right shoulder complaints were consistent with her injury. He said she would continue permanently to have restricted range of movements in the right shoulder and would continue to need medication (Panadeine Forte, Endep, Voltaren, Codapain) and possibly physiotherapy.
45 Dr Lewi felt that video footage of her using her right arm to close a car’s boot was not necessarily inconsistent with her right shoulder complaints because some movements could be less uncomfortable depending on the position of the right hand.
46 Dr Lewi said that he received no history of an injury to the neck in the wedding fall and that the fall would only have caused a soft tissue injury to the neck with a temporary effect lasting less than 12 months. He did not feel that the neck was an important part of her ongoing symptomatology.[6]
[6] Mr Shannon also reported in 2008 that the plaintiff presented the same way in 2002 and 2008 in relation to her neck, with almost no movement at all, but that this was inconsistent with the free movement he observed at the hearing on the video surveillance material he was shown.
47 He accepted Mr Hadley’s that the plaintiff suffered a chronic back strain in the 1999 car accident but said that the plaintiff had complained of back pain more since the 2007 wedding fall. He felt that video footage of the plaintiff bending into a car for 30 seconds or so was not inconsistent with the plaintiff’s condition, as he said many people with severe back pain still have a fairly good range of movement in the lumbar spine.
48 In 2008, Mr Shannon reported that the plaintiff presented (in relation to the consequences of the wedding fall) very similarly as she had in 2002 (when he examined her in relation to the 1999 car accident), with gross restriction of movement of her neck and back, and non-organic features to her presentation. He found no evidence of impingement or “intrinsic shoulder pathology”. He did not feel that the supraspinatus tear was “necessarily attributable” to the wedding fall. He conceded that her pre-existing symptoms to the back, neck and right shoulder may have been exacerbated by the wedding fall but did not feel that they resulted in any significant increase in her impairment.[7]
[7] He reached a similar conclusion in his report of 9 February 2009.
49 At the hearing, Mr Shannon said that in the surveillance footage he saw there was no evidence of injury to the right shoulder. When closing the boot of the car he said she elevated her arm to a much greater degree than when he examined her, with no sign of guarding the right arm. He disagreed with Mr Kudelka’s opinion about the possibility of rotating the arm to allow movement including the extension to close the boot of the car and said he saw no trick movement or guarding but that the plaintiff reached up quite easily. He agreed it was possible that the tear of the supraspinatus was caused, or rendered symptomatic by the wedding fall, however he said he could not assess her impairment due to lack of cooperation from her on examination. He felt that in spite of the shoulder pathology her right shoulder symptoms were coming from the neck.
50 Mr Shannon said that the video footage showing the plaintiff bending with near normal range of lumbar flexion was inconsistent with her presentation on examination (when there was a complete absence of movement) and was not explicable in terms of good and bad days. He agreed that given the absence of complaints of back pain to her treating doctor from 2003 and 2006 there was possibly some improvement in her symptoms and that the use of medication after the wedding fall could indicate some worsening after that fall.
51 In December 2007, Professor Myers re-examined the plaintiff, who told him that in the wedding fall she fell on her back and left side, and that the back pain suffered after the wedding fall was in a different position, and more severe, than that suffered after the 1999 car accident. She also complained, relevantly, about ongoing right shoulder pain. He felt that the wedding fall aggravated pre-existing lumbar spine degeneration and caused the injury to the right rotator cuff structures. He felt that she would continue to have long- term persisting symptoms in the back and right shoulder and would be restricted in her occupational, domestic and recreational activities due to these symptoms.
52 Mr Kudelka, orthopaedic surgeon, reported in December 2008 that she complained of persistent right shoulder pain and back aches since the wedding fall. He concluded that the fall aggravated pre-existing degenerative changes in the lumbar and cervical spine and significantly aggravated a rotator cuff lesion in the right shoulder. He felt the plaintiff would experience permanent restrictions in movement of the cervical and lumbar spine and that half of this restriction could be said to flow from the fall of 2007. He felt that the right shoulder required active treatment possibly with arthroscopic surgery which might reduce pain even if it did not improve restrictions.
53 At the hearing Mr Kudelka saw the video footage of the plaintiff bending into the back seat of a car and said the plaintiff demonstrated greater lumbar spine movement than he had observed but that this did not affect his opinion, which was based on the x-rays. He said that the video footage of the plaintiff extending her right arm upwards to close the boot of a car was not inconsistent with her right shoulder condition. He said one could accomplish this by “trick movements” involving rotation of the shoulder. He felt that a shoulder tear could not occur spontaneously but could gradually worsen over time without trauma and simply through the performance of ordinary domestic tasks.
54 On balance, I accept the evidence of the plaintiff and her daughter and that of her treating doctor, Dr Lewi, concerning the neck, back and right shoulder symptoms she has suffered as a result of the 2007 wedding fall. I do not consider that the video surveillance footage referred to by Mr Kudelka and Mr Shannon materially affects my conclusion, as they disagreed about the significance of the plaintiff’s movements and activities and I am disinclined in the light of this disagreement to reach conclusions adverse to the plaintiff on the question of credit. I also accept the conclusions of Professor Myers and Mr Kudelka to the effect that the plaintiff will suffer permanent pain and restrictions flowing from the right shoulder injury and, to a lesser extent, from the lumbar spine symptoms (whether by aggravation of pre-existing symptoms or by further frank injury in the 2007 wedding fall) and will require assistance with the activities of daily living.
Need for services
55 At the hearing, Dr Lewi said that the plaintiff is currently in a “severe phase” of her pain and needed substantial help with showering, dressing, cooking and cleaning from her husband and daughter, although he felt that her husband could only provide sporadic help given his own severe back injury. He disagreed with Mr Kudelka’s opinion that any care needs would dissipate within a year or two of the wedding fall.
56 Dr Lewi said that because the plaintiff’s husband had a severe back injury he could only be of sporadic help to her with light cleaning and assistance in dressing. He disagreed with Mr Kudelka that any care needs resulting from the plaintiff’s lumbar spine symptoms would resolve within 2 years of the accident and that any ongoing need for care related to age-related degenerative changes rather than the wedding fall. He said he felt that the plaintiff’s disability could go on for years and that she would have pain and restriction of movement requiring help, for the long term. He also felt that she could suffer ongoing nagging back pain requiring medication.
57 Mr Kudelka reported in February 2009 that the household help received by the plaintiff from her husband and daughter since February 2007 was the result of the wedding fall, but believed the symptoms resulting from the fall would have subsided after two years and that any ongoing assistance would relate to age- related degenerative changes in the neck, right shoulder and back. He would only support the claim for domestic assistance up to January 2009. At the hearing, he reaffirmed his opinion that surgeons generally consider that it takes around two years for the effects of an aggravation to subside.
58 There was a paucity of evidence as to the time devoted by the husband to helping the plaintiff both after the 1999 car accident and after the 2007 wedding fall. However, I note that in any event during the hearing the plaintiff’s claim concerning the number of hours for which she will require assistance in the future was amended from the 17 hours claimed in the writ to 12 hours, the bulk of which could be attributed to the need since the wedding fall for her daughter to attend nearly every day for two to three hours per day whereas prior to that fall she was attending only one or two days per week for a couple of hours.
59 I prefer the evidence of Dr Lewi, the plaintiff’s longstanding treating doctor, to the more general evidence of Mr Kudelka, because Dr Lewi knows her particular needs better and is in a better position to estimate how long those needs may in fact continue. For this reason, I consider that the plaintiff should be awarded the amount ($28,357.00) claimed for gratuitous care services to the date of conclusion of the trial as well as the amount ($13,242.00) claimed for those services for a further one year.
60 There was no issue taken with the sum sought for past and future medical and pharmaceutical expenses, and I consider that the plaintiff should be awarded the sum of $1774.25 sought for past medical expenses, the sum of $745 for past pharmaceutical expenses, and the sum of $2628 for future medical and pharmaceutical expenses.
General damages
61 The plaintiff conceded that if the injury resulting from the wedding fall was found to have lasted only two years, the appropriate sum of general damages would be $25,000. However, on the basis of the evidence of Dr Lewi, Professor Myers and Mr Kudelka, the plaintiff claimed general damages in the sum of $45,000.
62 At law, general damages for non-economic loss include pain and suffering, loss of amenities of life and loss of enjoyment of life. As noted above, the plaintiff suffers constant pain in her neck, back and right shoulder as a result of the wedding fall in 2007. She takes a considerable amount of strong analgesic medication daily for her pain but her sleep is interrupted by pain. She needs help to dress, cook, clean the house and do the washing. She can no longer dance or walk as she used to. She cannot use her dominant right hand.
63 In the light of the evidence from Dr Lewi, Professor Myers and Mr Kudelka that the plaintiff will suffer permanent pain and restrictions flowing from the right shoulder injury and, to a lesser extent, from the lumbar spine symptoms, and having regard to the plaintiff’s evidence about the impact of right shoulder and back injury upon her life, I consider the appropriate quantum of damages to be in the order of $45,000.
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