Victorian WorkCover Authority v Strike CCW Pty Ltd (in liq)
[2021] VCC 609
•19 May 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-19-03111
| Victorian Workcover Authority | Plaintiff |
| v | |
| Strike CCW Pty Ltd (in liquidation) (ACN 130 545 738) | Defendant |
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JUDGE: | HIS HONOUR JUDGE Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 19, 20, 21 and 26 April 2021 | |
DATE OF JUDGMENT: | 19 May 2021 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Strike CCW Pty Ltd (in liq) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 609 | |
REASONS FOR JUDGMENT
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Subject:Accident Compensation
Catchwords: Third party recovery proceeding – injury to worker – compensation paid by the Victorian WorkCover Authority – entitlement to an indemnity from a third party tortfeasor – application of the formula in s369 of the Act
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s369, s491; Evidence Act 2008 (Vic) s53, s54; Wrongs Act 1958, s14B, s48, s49, s53, s54
Cases Cited:Malec v Hutton (1990) 169 CLR 638
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Hayes QC with Ms C Spitaleri | Wisewould Mahoney |
| For the Defendant | Mr A W Middleton | Meridian Lawyers |
HIS HONOUR:
The proceeding
1The plaintiff is a body corporate incorporated pursuant to s491 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA Act”). It commenced a proceeding against the defendant, Strike CCW Pty Ltd (“Strike”), pursuant to s369 of the WIRCA Act seeking an indemnity which I will describe later in these reasons.
2The Aveo Group Pty Ltd (“Aveo”) conducts a retirement village business. It employed Ms Chrissie Neill (“Ms Neill”) as a manager of one of its retirement villages in Glen Waverley from 23 April 2012.
3Strike conducts a ten-pin bowling business operating numerous venues across Australia. One of those venues is at 285 Springvale Road, Glen Waverley (“the venue”).
4On 17 September 2014, Ms Neill accepted a staff-wide invitation from Aveo Management to attend a social evening at the venue. It was during the course of engaging in the activity of ten-pin bowling at the venue that Ms Neill suffered injury.
5Ms Neill brought a proceeding against both Aveo and Strike alleging that they were both negligent, and that their negligence resulted in her suffering injury, loss and damage. The proceeding settled, leaving the plaintiff’s proceeding against Strike to be determined.
6Mr P Hayes QC appeared with Ms C Spitaleri of counsel for the plaintiff. Mr A W Middleton of counsel appeared for the defendant.
The Plaintiff’s proceeding
7Section 369 of the WIRCA Act is in the following terms:
“(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages in respect of the injury or death or that would have created such a liability if the injury or death had been caused in Victoria, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2)In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Division 2 must not be taken into account.
(3) The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a) the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b) the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
where—
A is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
B is the amount recovered or recoverable by the Authority or self-insurer under section 367 from the Transport Accident Commission otherwise than under a settlement;
C is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party;
X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death.”
8I will firstly turn to ss(1) which requires the following to be established to engage the right to indemnity:
· Ms Neill must have suffered an injury.
· Compensation for the injury suffered by Ms Neill must have been paid under the WIRCA Act.
· The compensation must have been paid by the Authority (the plaintiff in this case), a self-insurer or the employer.
· The plaintiff must establish that Strike had a liability to pay damages to Ms Neill.
9So far so good. None of the foregoing were controversial in this proceeding, but now it is necessary to turn to the formula which requires me to determine the following:
· I must calculate Ms Neill’s common-law assessment of damages under Factor A.
· I must then subtract from the assessment any amount which Strike has paid to Ms Neill through her common-law claim against Aveo and Strike under Factor C.
· I must then divide Factor A, after subtracting Factor C, by the assessment of Strike’s liability at common law under Factor X.
10I should add at this point that proceedings pursuant to s369 of the WIRCA Act (and pursuant to its predecessor, s138 of the Accident Compensation Act 1985) are reasonably common and have been the subject of judicial interpretation. Neither party submitted that there was any legal impediment to the plaintiff bringing a proceeding against Strike based upon the cause of action which I will turn to next, nor did I detect any such impediment.
The cause of action
11The plaintiff filed and served a Proposed Further Amended Statement of Claim dated 12 April 2021 (“the Statement of Claim”). The cause of action pleaded was based upon Strike having breached its duty owed to Ms Neill in its character as occupier of the venue. The breach was based upon the duty owed by an occupier pursuant to s14B of the Wrongs Act 1958. The plaintiff pleaded rather elaborate particulars of negligence subjoined to paragraph 11 of the Amended Statement of Claim. For reasons which I will make plain later, I think the particulars were overly elaborate and excessive.
12Strike filed a Further Amended Defence dated 14 April 2021 (“the Defence”). In substance it admitted that it was the occupier of the venue at the time when Ms Neill suffered injury. It denied it was negligent. It alleged that Ms Neill was guilty of contributory negligence, and it pleaded defences pursuant to s53 and s54 of the Wrongs Act 1958, and also that by engaging in the activity of bowling, that Ms Neill voluntarily assumed a risk of injury (volenti non fit injuria).
13Like most proceedings, the elaborate nature of the Amended Statement of Claim and the Defence were reduced to rather simple propositions – whether Strike was negligent; whether Aveo was negligent; whether, if they were both negligent, the extent of their contribution, and then the application of the formula. For the sake of completeness, I should note that Strike abandoned its allegations that Ms Neill was guilty of contributory negligence, its defences under the Wrongs Act 1958, and its defence of voluntary assumption of risk.
The venue
14The parties jointly invited me to take a view of the venue. I did so on Friday, 16 April 2021 accompanied by my associates, and counsel and their instructing solicitors.[1]
[1] The view was undertaken consistently with s53 of the Evidence Act 2008 (Vic)
15The venue is located within a shopping complex. I was guided through a side door. Upon entering through the side door there was a reception desk immediately to my left-hand side. I was then guided to a bar area at the opposite side of the venue to the reception desk. From the bar area I was guided to an upper area via a ramp to the actual area where Ms Neill was bowling when she suffered injury.
16The bowling area is depicted in a number of photographs which were tendered into evidence.[2] The photographs were extracted from a report of Mr Bill Contoyannis, forensic engineer, who was engaged by Ms Neill in her common-law proceeding against Aveo and Strike. His first report is dated 7 August 2020, and his supplementary report is dated 3 March 2021.[3] The photographs I have just referred to were used by Ms Neill, and some of the other witnesses, to describe the physical features of the venue. In addition to those photographs, there were many other photographs referred to by Mr Contoyannis in his reports.
[2] Exhibits B, C and D
[3] Exhibit HH
17I should pause to observe that the parties understood that what I saw, heard and otherwise noticed on the view was incorporated as part of the body of evidence.[4] Some of what I am about to refer to will become rather more relevant when I summarise the evidence of the witnesses called by the parties.
[4] Evidence Act 2008 (Vic), s54
18The photographs[5] were taken by the photographer facing the bowling lane. Behind the photographer is a sitting area with what I will describe as a couch area set out in a horseshoe-shape with a central table (“the couch area”). It is the point where persons engaged in bowling would sit awaiting their turn. When a person is engaged in bowling there is a ball return to one side which delivers a bowling ball. The person takes the ball and enters onto a timber floor area which I will describe as the approach area. That approach area is shown in both of the photographs which I have just identified, but better in the second photograph.[6]
[5] Exhibits B and C
[6] Exhibit C
19The person would then move over the approach area and then deliver the ball onto and down the bowling lane. The point of delivery became somewhat controversial because of the ignorance of Ms Neill about the recreation of bowling and the general set up of the area I have just described, and in particular, a black line that can be seen in one of the photographs[7] which is bounded on both sides by what was described as a gutter.
[7] Exhibit C
20The black line was described as the “foul line”. In fact, Mr Contoyannis very helpfully overlaid descriptions of some of the features of what a person would see after leaving the couch area. It may be unnecessary to explain much more except that it was common ground that a person delivering the ball from the approach area should not step over the foul line for reasons I will come to in a moment.
21I will pause here for a moment to describe what I saw on the view in addition to what I have already recorded. The lighting was subdued. It was not as dark as the state of the lighting in the photographs. From a viewpoint standing midway between the couch area and the foul line I was able to clearly observe the couch area, the foul line, the gutters, the bowling lane and the pins at the end of the bowling lane. I was able to clearly see the floor beneath my feet, and indeed, the grain in the floorboards and the joins in the floorboards. All of this left me with a clear impression that whilst the lighting was subdued it was sufficient for any person moving from the couch area to the approach area to observe the foul line.
22At some point after Ms Neill suffered injury, a sticker was applied to the foul line which reads “SLIP HAZARD - PLEASE DO NOT CROSS THIS LINE”. Just before the foul line are seven black dots. The sticker is depicted in a photograph in Mr Contoyannis’ report.[8] What warning was there at the time Ms Neill suffered injury is a relatively small black square fixed to the ball return on the right side of the bowling lane which reads “DO NOT CROSS THE FOUL LINE”. As I stood at the midpoint I referred to earlier, it was difficult to pick up that warning sign. A warning was also intermittently displayed on an overhead screen.
[8] Exhibit F, at page 153 of his first report
23The critical issue, which was ultimately not controversial, is that the bowling lane beyond the approach area, and just over the foul line, is very slippery. Strike conceded that to be the case. The plaintiff tendered a “Manual Line Maintenance” document created by the Brunswick Bowling and Billiards Corporation (“Brunswick”) which would appear to be the manufacturer or installer of the bowling lane set up at Strike. What is of importance is that Brunswick provided instructions that the bowling lanes must be oiled to protect the surface of the lanes.[9]
[9] Exhibit H
24I approached the foul line, and bent down to examine the surface of the approach area and the lane just beyond the foul line. I was able to observe that for some short distance beyond the foul line there was no oil, but then oil on the surface of the lane was visible. Neither I nor the parties took any measurement of the area beyond the foul line where there was no oil. I should add that I was invited to examine lane three which was the lane used by Ms Neill at the time she suffered injury.
25In addition to what I have just described, I was invited to concentrate on the volume of the music, and to observe the different coloured lighting and other lighting features in close proximity to where Ms Neill was bowling. The music was loud, but I think loud enough to probably make it difficult to undertake a conversation at an ordinary volume of speech. The other lighting was coloured and appeared to me to cast some differing colour in and around the approach area and the bowling lane. I was also invited to consider that when bowling was being undertaken, that there would be additional noise created by bowling balls and general activity undertaken by patrons. I should add that the latter was not apparent to me because the view was undertaken in circumstances where I and the others on the view were the only persons at the venue except for a staff member.
Ms Neill’s incident
26Much of the evidence of what occurred when Ms Neill suffered injury is not controversial. Ms Neill and other Aveo managers were invited to a social evening at the venue by email dated 12 September 2014 from Deborah Brand and Michael Morgan, both of whom are employees of Aveo.[10] The date of the social evening was 17 September 2014. Ms Neill accepted the invitation and attended. She estimated that about seventeen or eighteen members of staff of Aveo attended the social evening.
[10] Transcript 68 and Exhibit 2
27Ms Neill said that she had never engaged in ten-pin bowling before that night. The attendees gathered in the bar area. A manager announced that the attendees would be divided into two teams. Subsequently, the attendees moved to the reception area where they obtained bowling shoes. They then moved to the bowling lanes shown in the photographs I have referred to. Ms Neill described the lighting as “extremely dark” and that the music was “extremely loud”.[11] She also described difficulty conversing, needing to raise her voice in close proximity to the person she was speaking to in order to be heard. She later described the venue as being “Dark, loud, lights going all over the place, I mean I said it was like a nightclub …”.[12]
[11]Transcript 71
[12] Transcript 71
28Ms Neill said that no one said anything to her about the venue, how to bowl, anything about the various features of the area where she was bowling, and that there were no staff present when she commenced bowling. She added that the activity of bowling “just seemed to start straight away”,[13] and that she thought that someone would have given her information about what was to happen. She then copied what she saw others doing.
[13]Transcript 73
29Ms Neill was shown two photographs[14] which she used to identify the physical features of the area where she and others were bowling. Her attention was directed to overhead monitors which are shown in one photograph.[15] She described it as being like a television screen which had her name on it and the names of the other people she was bowling with. She was referred to a photograph which showed the foul line. She said that the foul line did not jump out at her.
[14] Exhibits B and C
[15] Exhibit B, accompanied by a description on the photograph
30Ms Neill had some difficulty describing the time the incident occurred which resulted in her suffering injury, however, not much turns on that. She was then asked to describe what occurred. She said:
Q:“As best as you can recall, in respect of the time you bowled and when you fell, are you able to describe to His Honour, or please describe to His Honour exactly what occurred in the lead-up to your fall?---
A:I was – it was my turn to bowl, I walked, I suppose, fairly quickly, as you do, as you’re going to bowl, you ---
…
Q:All right. And what did you do with the ball?---
A:Well, you’ve got a backward, kind of a backward swing to get the momentum to hurl the ball down the laneway.
…
Q:What happened next?---
A:Well, within a split-second, and I had no idea how it even happened, I was up ended, and fell extremely heavily on to my right side, my right side landed in - literally landed in the gutters on the right-hand side of the bowling alley.
Q:All right. And had you released the ball?---
A:Yes.
Q:All right. So you had released the ball?---
A:Yes. And at the same time that I’ve released the ball, I’ve gone up in the air, and virtually slam dunked, that’s the way I can put it, on my whole right side, with the steel gutters, were about this width presumably- - -.”[16]
[16] Transcript 77-78
31In the course of giving that evidence, while sitting on a chair in the witness box, Ms Neill moved her body to her right-hand side as if to demonstrate the direction which her body moved as she fell, and then she described the point where she landed:
“Yes. I got stuck here (indicating) on the outer part of the steel guttering, and under my armpit and down my right side, got stuck on the inside part of the steel guttering. So I’ve landed very awkwardly with my arm out, my right arm out.”[17]
[17] Transcript 80
32To questions which followed, Ms Neill described being a few metres into the lane relative to the guttering, and in answer to a question I put to her, she described her head as being within the lane and beyond the foul line. Her feet were pointing down toward the pins.[18]
[18] Transcript 80-81
33Under cross-examination, Ms Neill said that she did not ask anyone what to do, in the sense of any aspects of ten-pin bowling. She did not ask Mr Morgan. It was my impression that the opportunity to ask him was overtaken by the fact that she said the game had already started. She was adamant that no instructions were given to her by any member of Strike’s staff.[19] When she was asked whether she had stepped over the foul line, she said that she did not know that there was a foul line there, nor that the bowling lane was oiled.[20]
[19] Transcript 119-120 and 123
[20] Transcript 146
34The next witness was Mr Morgan. He was employed by Aveo on 17 September 2014 as a territory operations manager based in Victoria. He was one of the organisers of the social evening. He described the venue as being a bit like a nightclub. The lighting was subdued, colourful and there was loud music playing as well as videos and music videos. He described the noise as being “extremely loud” to the extent that he needed to shout to have a conversation with someone else.[21]
[21] Transcript 167
35Mr Morgan said that a member of Strike’s staff spoke to the attendees when they were all assembled at the bowling lanes they had been allocated. He was standing at the back of the group of attendees and was conversing with someone else. He recalled the member of staff welcoming the attendees, referring to food being served and organising drinks, but he was having an in-depth conversation with one of the village managers of Aveo and “wasn’t listening that hard”. Following the address made by the member of staff, the activity of bowling commenced.[22]
[22] Transcript 171
36Mr Morgan was someone with significant experience in ten-pin bowling. He was bowling in a league based in Dandenong. On the evening in question, he took his own bowling ball with him.[23]
[23] Transcript 180
37Mr Morgan was watching Ms Neill bowl just prior to her suffering injury. He saw her crossing the foul line, and he described his reaction to what he saw as follows:
Q:“As best as you can recall, can you tell His Honour what it is that you saw?---
A:I was standing at the back of the bowling alley and right at the back there was sort of like benches that you could stand and eat and drink, et cetera, and I was watching the bowling occurring and I saw Chrissie coming up to bowl. I noted, as she’s gone to bowl that she’s crossed the foul line. I’ve instinctively gone, stop.
Q:When you say you’ve instinctively gone stop, you gestured with your left hand. What did you do?---
A: I started moving towards her.”[24]
[24] Transcript 172
38Mr Morgan explained that when he used the word “stop” he was rather more talking to himself. He added that he knew through his experience in ten-pin bowling that crossing the foul line “doesn’t usually end in - doesn’t end well”.[25]
[25] Transcript 172
39After Mr Morgan saw Ms Neill cross the foul line, he saw her legs go from under her, resulting in her landing “quite heavily on her back”. He estimated that she was about a metre or thereabouts into the bowling lane when she came to rest on her back at about a 45-degree angle, with her feet pointing to the right and into the gutter on the right.[26]
[26] Transcript 173
40Mr Morgan did not recall any instructions being given by a member of Strike’s staff of the presence of the foul line and not to cross it, nor any enquiry whether anyone had bowled before or not, nor any demonstration about how to ten-pin bowl. He added that he did not see any member of staff walking around the area where the attendees were bowling in the two hours that the activity was being undertaken, nor undertaking any monitoring of the attendees. He could not recall whether any staff member informed any of the attendees that the lane beyond the foul line was slippery.[27]
[27] Transcript 174-175
41Under cross-examination, Mr Morgan said that he had not attended the venue on any previous occasion. He said he had some idea what it was like. He did not make any enquiries of the attendees of what they knew or did not know about ten-pin bowling.[28] He said that the duration of what the staff member said to the attendees was pretty short, and he agreed that he only heard a part of what the staff member said. He said that he was about five metres back from where Ms Neill slipped and fell. He had no apparent difficulty, from that distance, observing Ms Neill’s movements.
[28] Transcript 179-180
42Under cross-examination, Mr Morgan was asked whether he thought it prudent to inform the attendees that the lane beyond the foul line was slippery. Both parties relied on his subsequent answer, so I think it is best if I set it out in full:
Q:“Having knowledge of the lane being slippery over the foul line, did you think it incumbent upon you to let the people know that were in your group about that?---
A:I don’t recall whether or not I actually did or didn’t say, ‘Don’t go over the foul line’. There was, during the course of the evening - I think I mentioned it earlier - instructions, you know, we helped each other out with their tenpin bowling. I may have said, ‘Be careful, don’t step over the line’, I don’t recall saying so. I know there was a lot of fun, there was a lot of frivolity, there was a lot of conversations, there was a lot of people talking about tenpin bowling, including myself. Did I take it upon myself to say to each and every member of the staff, ‘Do not cross the foul line’? No.
Q: To some of them, did you say to some of them?---
A: I don’t believe I did, no.
Q:Wouldn’t you, as an organiser of the event on behalf of [the] company you work for, wouldn’t it have been prudent for you, knowing that it was slippery on the other side, to point that out to them?---
A:I wouldn’t have thought it was something that I needed to do. Maybe, ignorantly of me being an experienced bowler, maybe I felt it wasn’t me that needed to say that. I didn’t see any inherent dangers in tenpin bowling.”[29]
[29] Transcript 185
43The plaintiff called three further witnesses: Ms Glynis Anne Dybing, Ms Nardi Fiona Croaker and Ms Lita Margaret Short. Ms Dybing and Ms Croaker had ten-pin bowling experience. They were asked the same questions relevant to the attendees assembling in the bar, collecting shoes and then going to the bowling lanes. Ms Dybing recalled that a member of Strike staff addressed the attendees. She could not remember what the staff member said. The others could not remember an address being made. None of them recalled any safety briefing, reference to the foul line, warning not to cross the foul line, that the lane beyond the foul line was slippery or seeing any warning signs. They each commented on their view of the lighting and the noise and giving understandably somewhat different accounts of what they thought of the lighting. They did not observe Ms Neill slip and fall. They later understood that she had, and were aware of the aftermath of the slip and fall.[30]
[30] Ms Dybing at Transcript 190-191; Ms Croaker at Transcript 199-200, and Ms Short at Transcript 204-205
44Strike called two witnesses: Mr Niall O’Doherty and Ms Natalie Kate Sest. Mr O’Doherty is the chief performance officer of Funlab, which is the parent company for Strike Bowling Bar and other associated entertainment businesses. He was not present when Ms Neill suffered injury. His relevant evidence went to the system employed by Strike in informing attendees of “rules” which applied to their use of the venue. He described the system as follows:
Q:“On the day or the night when a group attends, what is done in terms of instructing that group?---
A:Yeah, so to get a group started on the lanes, our team members are trained in what we call spruiking, which is essentially the process of getting on a microphone, gathering the group together and bringing them to their allocated lanes. Prior to the games being started, the participants starting in the games, the staff member will get participants attention and relay the rules, pointing out the foul line, the approaches where they can’t bring their drinks and miming, I suppose, the acts that you shouldn’t do while there, so that’s done prior to bowling.”[31]
[31] Transcript 225
45In the face of objection that the answer was irrelevant to what occurred in 2014, Mr O’Doherty was asked when he was a manager of a Strike venue whether staff were trained to speak in the manner he described. He said that he was trained in all the roles which he had occupied since 2007 with Strike to follow that system. He said that staff were trained in the system during a three-hour induction process, part of which involved the spruiking process.[32]
[32] Transcript 226-227
46Ms Sest was employed by Strike in 2014. She mostly worked in the reception area greeting customers, obtaining their details and providing them with relevant information. With the aid of a booking sheet, she was able to say that she was one of the staff members working at the venue at the time when Ms Neill suffered injury. She said that she was trained in what Mr O’Doherty described as “spruiking”. She said that groups such as the Aveo Group would have been given the spruik.
47I do not think that anything of particular relevance was put to Mr O’Doherty under cross-examination. However, under cross-examination, Ms Sest could not recall who the Strike “host” was on the night Ms Neill suffered injury nor whether a spruik was given.[33]
[33] Transcript 256
48It was not my impression that Mr O’Doherty nor Ms Sest gave evidence inconsistent with the preponderance of the evidence that the lighting was at least subdued and that the venue was noisy.
Negligence
49I will firstly turn to what I make of the evidence of the various witnesses.
50I accept Ms Neill’s evidence that she had never engaged in ten-pin bowling before 17 September 2014 when she arrived at the venue. I accept her evidence that the other attendees gathered in the bar area, moved to the reception area to obtain bowling shoes, and then moved up to the bowling area where the bowling activity commenced.
51I accept Ms Neill’s evidence that no one, whether among the attendees or through a member of Strike staff, asked her whether she had engaged in ten-pin bowling before. I accept her evidence that she simply copied what others were doing. She collected a ball out of the ball return, as did others, and then she entered onto the approach area and delivered the ball down the lane as she had seen others do.
52I am not satisfied that Strike followed the system described by Mr O’Doherty and Ms Sest and brought to the attention of the attendees features of the venue of relevance, and in particular, the purpose of the foul line and why it was important that it not be crossed. I thought the evidence of Mr Morgan, Ms Dybing, Ms Croaker and Ms Short was compelling of the issue that the system was not followed, and to the extent that it may have been in some form, it was ineffective in its delivery, not fulfilling the purpose of a spruik, which was to ensure that the attendees acquired a state of knowledge which would allow them to bowl within the rules described by Mr O’Doherty, and without risk of suffering injury. The latter appears to me to have been a primary purpose in delivering the spruik, because Strike clearly understood that crossing the foul line would expose that person to the risk of stepping onto the oiled surface of the lane, very probably resulting in a slip and fall.
53Strike was the occupier of the venue. It, therefore, owed a duty of care to Ms Neill to take such care as in all the circumstances that was reasonable, to see that she was not injured by reason of the state of the premises or things done or omitted to be done in relation to the state of the premises. None of this was controversial.
54In deciding what reasonable care was required of Strike, it is necessary to judge that objectively. It is to be judged by the standard of care which one would expect of Strike as an ordinary reasonable occupier. Strike knew that anyone stepping over the foul line was likely to step onto the oiled part of the lane, which it concedes is very slippery. Therefore, Strike, as a reasonably careful occupier, should have taken steps to inform Ms Neill not to step over the foul line. It should have followed its system, or if it made efforts to follow the system, it should have ensured that the implementation of the system was effective. The conclusion I have reached is that Strike did not inform Ms Neill of the risks to which she was exposed to in stepping over the foul line and, by not doing so, it breached the relevant duty of care which it owed her.
55Neither the plaintiff nor Strike chose to address me on the general principles referred to in s48 and s49 of the Wrongs Act 1958. I think that was so because the facts of this case, if they fell the way I think they should in the determination of Strike’s liability, do not require consideration of the factors referred to in s48 and s49; however, I nonetheless refer to this for the sake of completeness that I have considered whether there are any implications raised by s48 and s49 which are relevant here.
56Aveo was Ms Neill’s employer. It owed a non-delegable duty to take reasonable care not to expose her to a foreseeable risk of injury. It did not act in a way which I would expect a reasonable employer to act to prevent Ms Neill being exposed to the risk of stepping over the foul line and slipping and falling.
57In deciding that Aveo did not act in that way, there are a number of factors which require serious consideration:
(i) firstly, how likely was it that the risk to be guarded against would occur;
(ii) secondly, how significant the injury associated with the risk might be if it occurred; and
(iii) thirdly, how hard, inconvenient and expensive would it have been for Aveo to address the risk.
58I think there are a number of reasons why the risk to be guarded against was a high risk. Commonsense drives me to conclude that an oiled surface will be slippery. Allowing a person to move across the floor at some level of speed in order to deliver a bowling ball carries with it an almost inevitable consequence of a slip and fall. The range of injuries that might result from such a slip and fall are likely to be significant, for example soft tissue or bony injuries resulting from a body striking a hard timber floor or the guttering. The steps that could have been taken to address the risks were hardly inconvenient or expensive. All that needed to be done was for Aveo to enquire of Ms Neill whether she had bowled before; whether she understood what the foul line was and where it was, and that she was not to cross it because of the risk of stepping into the oil on the lane. These enquiries would have led Aveo to inform Ms Neill not to step over the foul line for reasons which are now obvious.
59The plaintiff submitted that Aveo was not negligent. It submitted that the risk was created by Strike, and its breach is a clear demonstration that it bears the entire responsibility for the occurrence of the incident. Alternatively, it submitted that its contribution is marginal. Strike submitted that it was not negligent. It submitted that if I was against it, then Aveo, for the reasons which are the foundation for my conclusion that Strike was negligent, bore something akin to a moderate responsibility for the occurrence of the incident.
60The debate between the plaintiff and Strike centred upon the balance between Strike being the occupier and being in control of the premises, and despite having a non-delegable duty of care, Aveo being entitled to expect that Strike would render the premises free of risks of foreseeable injury to someone like Ms Neill.
61I am satisfied that Strike, being the occupier and being in control, bears the heavier responsibility to render the premises free of risks of foreseeable injury by informing Ms Neill not to step over the foul line. However, the risk of someone stepping over the foul line were known to Aveo. Mr Morgan was an experienced ten-pin bowler. He was one of the organisers, and perhaps one of the key organisers who attended the social evening. He failed to make any enquiries of Ms Neill. To make such enquiries is hardly unreasonable because of the ease by which it could be done by simply asking the attendees whether any of the attendees was a novice, and whether they knew what to do and what not to do. He clearly knew that stepping over the foul line posed a significant risk because of his reaction when he saw Ms Neill doing just that.
62Furthermore, it is curious that Mr Morgan said that he did not see any inherent risks in ten-pin bowling, which strikes me as being at odds with his knowledge that stepping over the foul line carried with it a serious risk of a slip and fall which he acknowledged.
63Whilst I have concluded that the major responsibility lies with Strike, I think a moderate responsibility lies with Aveo. I fix their respective contributions as 70 per cent Strike and 30 per cent Aveo.
Factor A
64The plaintiff and Strike were unable to agree on the composition of Factor A which now requires me to traverse a very significant body of evidence comprising the plaintiff’s evidence, and medical evidence.
65The starting point is Strike’s submission that Ms Neill only suffered an injury to her lower back, and not to her right shoulder and right hip.
66Ms Neill described falling on her right side as a result of the slip and fall, with the whole of her right side striking the inner part of the guttering.[34] As she drove home after the social evening concluded, she said she felt terrible. She described feeling winded, with the whole of her mid back, chest and the right side of her upper body being extremely painful. On arrival at her home, she was aware of soreness in her right buttock which led her to use an ice pack applied to her right buttock.[35] She was in a lot of pain the following day, but despite that, she attended a quarterly business meeting.[36]
[34] Transcript 78
[35] Transcript 83-84
[36] Transcript 84
67Ms Neill continued working because of what she perceived to be pressure on her to rectify issues affecting Aveo’s Glen Waverley retirement village. The initial consequences she experienced subsided, although, she said there were ongoing issues of pain, especially down her right arm.[37]
[37] Transcript 89
68Strike emphasised that despite Ms Neill’s description of the physical consequences of the slip and fall, that it is inconsistent with the observation of Mr Morgan that he saw Ms Neill land quite heavily on her back in the bowling lane, coming to rest at a 45-degree angle to the right. He did not see her fall onto her right side nor onto the inner part of the gutter.[38] He also described going to Ms Neill’s aid. He said that he stepped into the gutter because it was the closest way of getting to her. It is not clear whether he stood in the gutter on the left or right side, but whichever it was, he confirmed that Ms Neill was in the lane when he went to her aid.
[38] Transcript 173 and 184
69Strike then referred to an Incident Report Form completed by Ms Neill on 19 September 2014 and submitted to Aveo by her. It emphasised that on the part of the Incident Report Form requiring Ms Neill to describe the incident details, she wrote “Slipped and fell backwards onto back during evening while playing ten pin bowling”.[39] Additionally, Strike referred to the Worker’s Compensation Claim Form completed by Ms Neill on 15 October 2015. It emphasised that on the part of the Claim Form requiring Ms Neill to describe the incident and her injury details, she described her injuries as being “Back”.
[39] Exhibit A
70Strike also emphasised that the Incident Report Form was completed two days after the incident, and at a time when Ms Neill said that she was winded and suffering pain in her mid back, chest and the right side of upper body and right buttock. Furthermore, that the Worker’s Compensation Claim Form was completed about thirteen months after the incident when Ms Neill must have been aware of the constellation of injuries which she attributed to the incident.
71Strike referred to the clinical notes of the Ultra Health Clinic[40] which disclosed that the first occasion that Ms Neill referred to the incident and the injuries which she said resulted from the incident was when she saw Dr Silvana Puzsar, general practitioner, on 15 October 2015. The clinical note is as follows:
“[F]all at work 17/09/2014 - at ten pin bowling alley as part of work function when slipped and fell backwards, landing heavily on right side of back, felt ‘winded’ for 3 days, struggled to keep working and did not take time off work despite ongoing pain.
Recently took annual leave and feeling emotional and anxious about returning to work. Has submitted a workcover (sic) claim form.
c/o chronic daily pain right upper/mid/lower back, radiates to right axilla, worse with sitting … .”
[40] Exhibit 32
72On examination, Dr Puzsar elicited tenderness over Ms Neill’s lower posterior ribs, right mid thoracic region and pain on rotation of the thoracic spine. She referred Ms Neill to have an x-ray of her ribs and thoracic spine and a CT scan of her thoracic spine.
73The clinical notes of the Ultra Health Clinic commence with an attendance by Ms Neill on 30 April 2014. Subsequently, she attended on sixteen occasions for treatment of a variety of musculoskeletal conditions, and in summary, for her right leg, right ankle, right hip, right upper arm and shoulder, left hand and sciatica, among other medical conditions. On no occasion between 30 April 2014 and 15 October 2015 did Ms Neill refer to the incident, even in the most subtle way, nor did she attribute the musculoskeletal conditions I have just referred to as resulting from the incident.
74Strike also referred to the fact that Ms Neill had a history of medical conditions which predated the occurrence of the incident, namely, right hip, right trochanteric bursitis, right gluteal region, right shoulder and spine. It submitted that each of these individually, and collectively, significantly impinge upon, firstly, the injuries that Ms Neill actually suffered resulting from the incident; and, secondly, whether any of the pre-existing medical conditions were actually aggravated as a result of the incident; and, thirdly, if they were aggravated, then to what extent.
75I required the parties to provide me with written submissions to identify the evidence on which they each relied. Whilst the written submissions are helpful, they do not condescend into a helpful chronological analysis of the medical evidence which each party tendered. It left the task to me to assemble an understanding of Ms Neill’s prior medical history as it became relevant to Factor A.
Right shoulder
76Ms Neill swore an affidavit on 19 December 2017 in support of her application for serious injury.[41] In paragraph 10 of that affidavit, she said that in 2008, she tripped over a raised pathway, resulting in an injury to her right shoulder which troubled her on and off for some years. In 2011, she had an ultrasound which showed a tear in her right shoulder.
[41] Exhibit 4
77In paragraph 15 of that affidavit, she said that she aggravated the condition of her right shoulder through the use of a wheelchair which she was using because of her ankle injuries, and was further aggravated through the use of crutches.
78Ms Neill was referred to Mr Chris Pullen, orthopaedic surgeon, who performed surgery to repair the tear. She said that the pain she was experiencing improved significantly. She subsequently had a month off work before returning to work.
Right ankle injury
79In paragraph 14 of that affidavit, she said that on 8 January 2013, she stepped out of a village bus, fracturing both of her ankles. Mr Francis Ma, orthopaedic surgeon, operated on her right ankle. The ankle injury involved the tibia and fibula. Her left ankle injury was managed conservatively. She was referred to rehabilitation, and after further treatment, she was able to return to work in May 2013.
80Ms Neill described the surgery as involving the use of orthopaedic plates and screws. She experienced difficulty walking due to the problems emanating from the plates and screws. They were removed by Mr Ma in January 2014.[42] Ms Neill swore an affidavit on 19 December 2017 in support of her application for serious injury.[43] In paragraph 20, she described experiencing bad episodes of sciatica in her right leg after the plates and screws were removed
[42] Transcript 66-67
[43] Exhibit 4
81Ms Neill was referred to Dr Peter Blombery, consultant physician in vascular disease, by a doctor at the Ultra Health Clinic.[44] He provided a report dated 19 November 2014.[45] The history obtained by Dr Blombery was that Ms Neill was experiencing pain in her right thigh – a sciatic-type pain – and a feeling of hotness in her right foot. It is noteworthy that she did not mention the occurrence of the subject incident to him. On examination, he noted 2 centimetres of wasting in her right thigh and that her right foot was cooler than her left foot. He was unsure of the reason for the wasting in her right thigh. He examined the results of an MRI scan which he considered demonstrated mild disc protrusion at L5-S1 and T12‑L1, and a whole body scan showing some increased uptake in her right hip.
[44] Exhibit 24 - the referral letter dated 24 August 2014
[45] Exhibit 5
82Dr Blombery provided Ms Neill with some treatment. He recommended a ketamine infusion, which was previously recommended by Dr Timothy McCarthy, specialist anaesthetist. Dr McCarthy appears to have become involved on referral by a doctor from the Ultra Health Clinic. Mr Ma suggested the referral. Dr McCarthy provided a report dated 4 July 2014.[46] He referred Ms Neill to have an MRI scan of her lumbar spine, which was taken on 4 June 2014.[47] He considered that the MRI scan did not disclose that cause for Ms Neill’s ongoing spinal pain, and he considered that it might be neuropathic pain as a response to her right ankle fracture.
[46] Exhibit 29
[47]Exhibit 21 appears to include a CT scan of Ms Neill’s lower back taken on 30 March 2012 at the request of Dr Peter Pappas, general practitioner. The radiologist noted, under History: “Low Back pain radiating to right leg.” It appears to demonstrate the degenerative changes referred to by Dr Blombery.
The right hip
83In paragraph 11 of that affidavit, Ms Neill said that in around 2010, she experienced pain in her right groin, especially when she walked. She had an MRI scan of her right hip in 2011 which disclosed a labral tear. Mr John O’Donnell, orthopaedic surgeon, performed an arthroscopy on her right hip which she said improved her symptoms “a little bit”.
84In the same affidavit, in paragraph 21, Ms Neill described developing pain in her right hip and lower back in early 2004 because of the way she was walking. She was having physiotherapy at the time, presumably for the problems she was experiencing with her right hip and lower back. The physiotherapist suggested she see Dr McCarthy, who referred Ms Neill to have an MRI scan. He provided her with injections into her right thigh which relieved her right groin pain.
85Dr Puzsar provided a report dated 7 November 2016 in which she referred to Ms Neill’s history of chronic right groin pain for which she had a right hip arthroscopy performed in 2011.[48] The arthroscopy demonstrated right hip osteoarthritis. At the end of that report, there are cryptic references to Ms Neill being referred on 21 April 2011 to have a steroid injection to treat trochanteric bursitis. An ultrasound of Ms Neill’s right hip taken on 30 March 2012 disclosed gluteal inflammatory changes and associated bursitis, right hip joint effusion, with the radiologist suggesting an ultrasound-guided injection of steroid and Marcain into the trochanteric bursa.[49] Subsequently, an ultrasound was performed which confirmed right hip joint effusion, and minimal degenerative changes in the right hip joint.[50]
[48] Exhibit L
[49]Exhibit 20.
[50] Exhibit 20
Gluteal problem
86Ms Neill experienced a significant problem with her gluteal region. She was referred to Associate Professor Paul McCrory, consultant urologist, by a doctor at the Ultra Health Clinic in 2012. He provided a report dated 4 December 2012 in which he referred to her history as involving a hip joint labral tear and gluteus medius tendinitis. He considered that she needed to be referred to Mr John O’Donnell, orthopaedic surgeon, for an assessment, and whether local anaesthetic injections into the painful structures he identified might assist in isolating the nature of her problems.[51]
[51] Exhibit 27
87An ultrasound taken on 19 April 2011 of Ms Neill’s right buttock disclosed severe inflammatory change effects in the gluteus medius and minimus tendons at their insertion upon the greater trochanter associated with moderate distension of the trochanteric bursa.[52]
[52] Exhibit 19
Ultra Health Clinic
88It was my impression of Ms Neill’s evidence that she was able to engage in a fairly full range of activities, including her work as a manager with Aveo, in a relatively unrestricted way prior to the occurrence of the incident. However, the more contemporaneous medical records of the Ultra Health Clinic suggest otherwise.[53]
[53] Exhibit 32
89I propose to trace through those records from the first entry dated 30 April 2014 until the occasion when Ms Neill gave a history of the incident and attributed the occurrence of injury to that incident on 15 October 2015:
· 30 April 2014 – the note discloses that Ms Neill was to undergo a review by a pain specialist. She was complaining of pain in her right leg related to her right ankle. She was having pain walking. She was to be referred to a physiotherapist.
· 24 August 2014 – the note discloses that Ms Neill had right leg pain which was worse when walking. She had a sympathetic block and a ketamine infusion two weeks previously. An MRI scan disclosed a gluteal tear. A letter of referral was created for referral of her to Dr Blombery.
· 15 November 2014 – the note discloses that Ms Neill was complaining of right hip pain which she had experienced since a fall twenty months previously. She described it as the same pain. She was referred to have an ultrasound of her right hip. She was also referred to a Dr Tim Hucker.
· 23 November 2004 – the note discloses that Ms Neill was experiencing weakness in her right hip when walking.
· 24 November 2014 – the note discloses that the results, presumably of the ultrasound, were discussed. It was noted that Ms Neill had synovial thickening and mild bursitis in her right hip.
· 7 December 2014 – a long note discloses that Ms Neill was suffering multiple areas of pain. She had experienced two years of chronic pain in her right leg with local tenderness in the ischial tuberosity when sitting down; pain in her right upper arm and shoulder “since fall”,[54] worse after lying on the right side. The balance of the note appears to be irrelevant and to some degree difficult to decipher.
· 28 December 2014 – the note discloses that Ms Neill was experiencing chronic pain and weakness in her right leg which she noticed during rehabilitation some three or four months “after accident”. There is a reference to the fall when she fractured both ankles, and a ticket for one week. There is reference to her having a CT scan one week beforehand which disclosed no cause for the sciatica. The note then records that she continued having weakness of hip flexion and pain, and an MRI scan which disclosed no cause for that problem. She was referred to Dr Anita Vinton, who was probably a neurologist, for nerve conduction studies to be undertaken.
· 5 February 2015 – the note discloses bruising to the buttock, but it appears to be related to Ms Neill having henna tattoos in the week or so beforehand.
· 10 June 2015 – the note discloses that Ms Neill was experiencing right thigh pain with wasting and was limping. It is not clear whether it related to prior history of right leg pain or to an unrelated condition.
· 29 August 2015 – the note discloses that Ms Neill requested a referral to an orthopaedic surgeon relevant to right buttock pain.
· 23 September 2015 – the note discloses that Ms Neill was referred to Mr Peter Wilde, orthopaedic surgeon, and Mr David de la Harpe, orthopaedic surgeon, and to another specialist perhaps for an unrelated condition. The purpose of the referrals appears to be the Ms Neill’s hips, tendinopathy and trochanteric bursitis.
· 5 October 2015 – the note discloses that Ms Neill was suffering from right buttock pain and had been referred to Dr Victor Wilk, musculoskeletal physician.
[54]The reference to “since fall” is difficult to determine what Ms Neill was referring to. Is it the fall in 2008 when she suffered the initial injury to her right shoulder or the fall in January 2013 when she fractured her ankles, and subsequently suffered an aggravation of her right shoulder injury due to the use of a wheelchair and crutches? There is no reference to the slip and fall resulting from the occurrence of the subject incident.
The Plaintiff’s medical treatment
90The plaintiff submitted that a review of a large body of medical evidence discloses that there is reasonable support for the proposition that the occurrence of the subject incident was “a cause” of the aggravation of Ms Neill’s right hip, right shoulder, and, alternatively, the onset of a chronic pain condition, and also a secondary Adjustment Disorder and/or Major Depressive Disorder. I will trace through that medical evidence in the order in which the plaintiff and the defendant submitted their written submissions.
91Ms Neill was referred to Dr Wilk by a doctor at the Ultra Health Clinic. It would appear that he first saw her in around October 2015. He provided a report dated 8 October 2015.[55] He recorded a history that Ms Neill had been complaining of grumbling right groin and thigh pain for a few years, aggravated by falls. The first was in January 2013, when she fractured both of her ankles. The next was “in September last year”, which must mean September 2014, when she fell on her right side, “causing some right shoulder blade pain, right lower back and buttock pain”. Her right groin pain and pain down her right leg was also aggravated.
[55] Exhibit J
92On examination, Dr Wilk noted moderate wasting in Ms Neill’s right thigh and that she limped slightly when walking. Movements of her lumbar spine were full and did not aggravate the pain she was experiencing. She had a good range of movement in her left hip, with some mild loss of range of movement of the right side compared with the left and with pain in the right groin region. She was tender over the gluteal muscle insertions onto the side of the hip and under the ischium on the right side near the adductor magnus insertion.
93Dr Wilk considered that most of Ms Neill’s pain arose from her right hip joint. He gave her an injection of dextrose and local anaesthetic over the ischium. He considered that injecting her with local anaesthetic into the right hip joint would assist with the process of diagnosis. He made a request of the claims agent for permission to perform a sacroiliac joint injection under fluoroscopy.[56] It is not clear whether that procedure occurred.
[56] Exhibit K
94I was under the impression that Ms Neill believed that Dr Wilk gave her more than one injection. She said that he gave her an injection into her lower back. She said that he also treated her for her right shoulder and buttock injuries.[57] However, that is not consistent with what is disclosed in Dr Wilk’s report.
[57] Transcript 93-94
95In Dr Puzsar’s report dated 7 November 2016, she recounted the history that was recorded in the clinical notes of the Ultra Health Clinic on 15 October 2015. She noted that Ms Neill had pre-existing conditions of right hip osteoarthritis and chronic lower back pain and right leg pain, and an episode of right trochanteric bursitis which responded to a steroid injection; however, MRI scans taken in November 2012 and August 2014 did not show trochanteric bursitis. It would appear that she was assisted by “specialist reports and investigations”, leading her to consider that there were changes consistent with right trochanteric bursitis after the occurrence of the subject incident and to consider that the right trochanteric bursitis was consistent with an injury resulting from the occurrence of the subject incident.
96It is abundantly clear that Dr Puzsar provided the report to a claims agent which requested her to offer an opinion of the injuries which Ms Neill suffered resulting from the occurrence of the subject incident. She considered that the right trochanteric bursitis was traumatic and a new condition, and consistent with the occurrence of the subject incident when Ms Neill landed heavily on her right buttock.
97Almost as a postscript, Dr Puzsar said that she wished to add that Ms Neill suffered an exacerbation of her right shoulder condition for which she provided a referral for Ms Neill to see Mr Pullen for further assessment and management.
98Ms Neill was referred to Mr Phong Tran, orthopaedic surgeon, by a doctor at the Ultra Health Clinic. He provided a report dated 11 May 2016.[58] It would appear that he first saw her in May 2016. He understood that Ms Neill had experienced pain in her buttock and the lateral side of her hip since the occurrence of the subject incident. That is clearly not the case, because Ms Neill was treated by Associate Professor McCrory for the same condition diagnosed by Mr Tran.
[58] Exhibit N
99Mr Tran examined Ms Neill and an MRI scan and considered that the MRI scan demonstrated severe osteoarthritis in her right hip, and an ultrasound demonstrated a full thickness tear of her gluteus medius and a partial thickness tear of her gluteus minimus. He advised her that she would eventually need a total hip replacement. He advised her about the prospect of a reasonable result from a gluteus medius repair. He noted that Ms Neill was convinced that her gluteus medius and gluteus minimus were a source of her pain, and that she wished to proceed to a repair of those tendons.
100In her affidavit, Ms Neill said that Mr Tran operated on her right hip in August 2016 which improved her right hip and buttock pain slightly.[59] When she was asked about the level of improvement she experienced, she later described it as being a temporary improvement.[60] She did not obtain a further medical report from Mr Tran, so it is unclear what surgery he actually performed, and his opinion of its success or otherwise. There is a reference to the surgery he performed in other medical reports. It would appear that he performed an iliotibial band release and bursectomy.[61]
[59] Exhibit 4
[60] Transcript 152
[61] See for example the report of Dr Mutton, consultant occupation physician - Exhibit O
101Dr David Kennedy, sports and industrial physician, examined Ms Neill on 25 October 2017 and 18 July 2019. He provided two reports, dated 13 November 2017[62] and 29 July 2019.[63] He obtained a history of the occurrence of Ms Neill’s injuries to her right shoulder, ankles, the pre-existing problems with her right hip and gluteal region, and her account of the occurrence of the subject incident which aggravated her prior medical conditions, except for her ankles. On examination, he noted that she had significant problems affecting her right ankle, but otherwise was at least tender over her right shoulder, right hip and gluteal region, and her back. By the time he examined Ms Neill, she had ceased working from February 2017, claiming that she was no longer physically able to continue working as a manager at the Glen Waverley retirement village.
[62] Exhibit Z
[63] Exhibit AA
102Dr Kennedy was led to understand that Ms Neill had experienced a level of resolution of her pre-existing medical conditions, and he concluded that they had been aggravated as a result of the occurrence of the subject incident, which is not something I accept, and I will elaborate on that later in these reasons. In any event, he considered that Ms Neill would have difficulty returning to any occupational duties, and would be restricted in engaging in a number of domestic, social and recreational activities.
103At the time when Dr Kennedy re-examined Ms Neill on 18 July 2019, she had met misfortune by suffering a subchondral fracture of her right knee involving the posterolateral aspect of the tibial plateau. She had also been diagnosed with breast cancer. He noted, in particular, that she was experiencing quite significant problems with her neck, right lower leg, her right hip – which he considered had worsened – and her right knee, in addition to the other medical conditions he referred to in his first report. He considered that her prognosis was guarded and that she would be significantly affected physically in terms of any occupational capacity and also activities of daily living affecting social, domestic and recreational activities.
104Associate Professor Bruce Love, orthopaedic surgeon, examined Ms Neill on 26 October 2017. He provided two reports dated 30 October 2017[64] and 7 December 2018.[65] He obtained a history of Ms Neill’s pre-existing medical conditions – ankle injuries, right shoulder, right hip and right buttock. Despite the history he obtained, he concentrated on her right hip problem. He considered that her hip pathology dated back to 2011 and that she was a suitable candidate for a total hip replacement. He also considered that the condition of her right hip had been aggravated by the occurrence of the subject incident which had not resolved by the time he examined her. However, I was left with the impression that the need for the total hip replacement was due to the osteoarthritis in her right hip and not because of the aggravation of it through the occurrence of the subject incident.
[64] Exhibit CC
[65] Exhibit DD
105In his second report, Associate Professor Love considered that if the occurrence of the subject incident had not occurred, the arthritis in Ms Neill’s right hip would inevitably have progressed to the level it had reached at the time when he examined her.
106Dr Philip Mutton, occupational physician, examined Ms Neill on 6 December 2018, 5 June 2019 and on 15 January 2020. He provided three reports, dated 6 December 2018,[66] 5 June 2019[67] and 15 January 2020.[68] He obtained a history that Ms Neill slipped and fell as a result of the subject incident. She told him that she suffered injury to her lower back and right hip. He obtained a history of the fall, resulting in Ms Neill suffering the ankle fractures, but no other relevant history of prior relevant medical conditions except when he reviewed radiology relevant to Ms Neill’s pre-existing problems with her right hip and right buttock.
[66] Exhibit O
[67] Exhibit P
[68] Exhibit Q
107After examining Ms Neill on the first occasion, Dr Mutton commenced consideration of what he was asked to assess by making two observations of significance – the first was the complexity of Ms Neill’s history – and I take that to mean not only the history which Ms Neill gave, but also the radiology relevant to Ms Neill’s pre-existing problems with her right hip and right buttock – but also the observation that he considered that she was “extremely focused on any abnormal findings noted on imaging irrespective of whether they can be related clinically to any dysfunction”.
108Dr Mutton next observed that the diagnosis relevant to Ms Neill’s right hip and right buttock were quite complex. He considered that it was likely that the significant osteoarthritis in her right hip was a significant contributor to her current presentation to him. He then referred to Ms Neill’s “non compensable injuries” which contextually I understand to be her pre-existing injuries. He then rather summarily disposed of the issue of causation by observing that “they may have been aggravated in this particular incident, as noted by a number of examiners”. He ultimately considered that she was suffering from chronic pain with significant psychological issues. He considered that she could work as a retirement village manager, and in similar occupations, on the basis that they were largely sedentary occupations.
109At the time when Dr Mutton re-examined Ms Neill on 5 June 2019, she had met with the misfortune of suffering a fracture of her right knee, and had also been diagnosed with breast cancer. Dr Mutton does not appear to have altered his opinion as previously expressed except to the extent that he considered that her capacity for work had been reduced by the chronic pain affecting her right knee which affected her ability to sit, stand and ambulate.
110At the time when Dr Mutton re-examined Ms Neill on 15 January 2020, his opinion had altered significantly. He considered that she had no current work capacity due to a combination of musculoskeletal injuries which he described as right knee, right shoulder girdle, right lower back and right sciatica. It would appear that he accepted that these injuries were work related. He did not articulate why his opinion changed so significantly given that he commenced the expression of his opinion by noting that there had been no change in her condition.
111Ms Neill began seeing Dr Sandra Parsons, general practitioner. I am uncertain when she began seeing her. She provided three reports, all of which are undated.[69] Dr Parsons appears to have accepted that Ms Neill suffered a remarkably extensive constellation of injuries resulting from the occurrence of the subject incident. Her description of those injuries is lengthy, and I do not intend to recapitulate them here except to say that they occupy the first one-and-a-half pages of her first report. Suffice to say, her acceptance of the constellation of injuries as being causally linked to the occurrence of the subject incident, and her complete acceptance of Ms Neill’s complaints of significant disablement, led her to conclude that Ms Neill is very significantly incapacitated. I do not accept much of Dr Parsons’ opinion because I think it is based upon a lack of understanding of Ms Neill’s prior medical conditions which I think are very well stated in most of the other medical reports I have reviewed.
[69] Exhibit V, W and X
112The last body of medical evidence relates to the Ms Neill’s psychological/ psychiatric state linked to the physical injuries she suffered as a result of the occurrence of the subject incident.
113First in time is Dr Peter Farnbach, psychiatrist, who examined Ms Neill on 20 May 2019. He provided a report dated 12 July 2019.[70] He was provided with a copy of a Medical Panel certificate of opinion which referred exclusively to partially resolved trochanteric bursitis and aggravation of right hip osteoarthritis. He also obtained a history of Ms Neill’s prior medical conditions – the injuries to ankles, a fracture to her right fibula in 2017 and the fracture of her right knee. She told him that she experienced pain down the whole of her right side, including her right shoulder, right hip, right knee, right ankle, the right side of her back, and that the pain in her chest and lower back were worse than the other areas of her body. She told him that she experienced a very high level of persistent pain, and interference with her general functioning.
[70] Exhibit T
114Dr Farnbach considered that Ms Neill was suffering from a Chronic Adjustment Disorder secondary to her chronic pain problem and associated disability. He considered that her symptoms were of moderate severity. He recommended that she be referred to a psychiatrist to be managed using antidepressants. He considered that with vigorous and appropriate treatment, that her mood disorder would be expected to improve over a three to six-month period, and despite her chronic pain, he expected that she would regain a work capacity with that vigorous and appropriate treatment. At the time he examined her, he considered that she did not have a capacity for work.
115Dr Dushyanthi Tilakawardena, psychiatrist, had treated Ms Neill from 9 October 2019. He provided a report dated 7 January 2020.[71] He treated her for a period of about three months. He did not obtain a history, or he certainly did not recount in his report, of any physical medical conditions of the kind which resonate in all of the reports I have reviewed thus far. He considered that Ms Neill had suffered a Major Depressive Disorder of moderate severity secondary to work-related physical injuries which he understood were causing her significant chronic pain, mobility restrictions and functional decline. He considered that she did not have a current capacity to return to work, and he considered that her psychiatric symptoms were unlikely to improve significantly due to her ongoing chronic pain, disability and significant mobility restrictions and functional decline.
[71] Exhibit U
116Lastly, Ms Neill was referred to Ms Mina Kobatsiari, psychologist, for treatment in February 2016. She provided two reports, dated 5 July 2019[72] and 6 April 2021.[73] The history she obtained appears to have been limited to injury to Ms Neill’s ankles, the injuries she suffered as a result of the occurrence of the subject incident, and the subsequent injury to her right fibula in 2017 and the fracture to her right knee in 2018. Ms Neill told her that she was very significantly disabled by the injuries which she says she suffered as a result of the occurrence of the subject incident. It would appear that she was still treating Ms Neill by 5 November 2020. At that stage, she considered that Ms Neill was suffering from an Adjustment Disorder which was severe and was directly perpetuated by her physical injuries and associated physical limitations.
[72] Exhibit R
[73] Exhibit S
117The exercise I have undertaken thus far addresses the submissions of the plaintiff and Strike, but what it leaves is a body of medical evidence that was tendered principally by Strike which neither the plaintiff nor Strike referred to expressly in their written submissions. As a result, I called for the plaintiff and Strike to indicate to me their reliance on that body of medical evidence.
118I received further submissions from both the plaintiff and Strike, and I now propose to refer to that further medical evidence where I have not already done so.
119Strike submitted that the following medical evidence identifies Ms Neill’s pre-existing medical conditions, and relevant treatment. In summary, Strike made the following further submissions:
· Dr Siva Chandrasekaran, orthopaedic surgeon, examined Ms Neill sometime in February 2016. He provided a report dated 17 February 2016.[74] He obtained a history that Ms Neill had a long history of complicated right-sided lateral spine, posterior buttock and groin pain. He also noted the right hip arthroscopy in 2011 and Ms Neill’s bilateral ankle fractures.
· Dr Hia Wai, general practitioner, wrote a referral letter to Mr Tran dated 10 May 2016.[75] He referred to Ms Neill’s past history of right hip autologous injections on 16 April 2012 and an MRI scan of the right hip on 29 November 2012, among other references to her relevant medical history.
· Mr John Behrsin, physiotherapist, provided a report dated 30 September 2014.[76] He noted that Ms Neill had made a good recovery from the pre-existing medical conditions affecting her right shoulder and left ankle. However, in relation to her right ankle, right hip and gluteal region, he said that the findings he made on examination with respect to each of those medical conditions were the result of injuries and subsequent changed movement she suffered prior to the occurrence of the subject incident. He later added that the consequences of those injuries had not resolved at the time when he wrote his report.
· Dr Gary Davison, occupational physician, examined Ms Neill on 5 November 2015. He provided a report bearing the same date.[77] He examined Ms Neill’s neck, thoracolumbar spine, shoulders, chest wall and abdomen. He considered that Ms Neill probably suffered a soft tissue contusion as a result of the occurrence of the subject incident. He was not convinced that Ms Neill’s ongoing symptoms related to the soft tissue contusion in the background of what he described as a plethora of pre-existing conditions. He considered that the symptoms she presented to him appeared to be related to pre-existing conditions.
[74] Exhibit 8
[75] Exhibit 9
[76] Exhibit 15
[77] Exhibit 16
What injuries?
120I think it is more probable than not that Ms Neill suffered more than just a lower back injury resulting from the occurrence of the subject incident.
121I harboured doubt initially that Ms Neill slipped and fell in the manner described by her, and that doubt was increased by the evidence of Mr Morgan and how he saw her fall, and also by what Ms Neill reported of the injury in the Incident Report Form, the Worker’s Compensation Claim Form, and then no complaint of a lower back injury until she saw Dr Puzsar on 15 October 2015, when she gave her a reasonably graphic account of the slip and fall and its consequences.
122In the face of cross-examination based upon the evidence relied upon by Strike, Ms Neill was adamant that her fall was dramatic, as were the consequences to her. My reasons for concluding that it is more probable than not that she suffered more than just a lower back injury are as follows.
123Firstly, I am in no doubt that Ms Neill slipped and fell in the way that both she and Mr Morgan described.
124Secondly, to have fallen that way must have resulted in her colliding with the floor very heavily.
125Thirdly, it is almost inevitable that witnesses observe events differently because they are at different vantage points, and whilst Mr Morgan gave his evidence carefully, I do not think what he observed is necessarily inconsistent with the way Ms Neill fell.
126Fourthly, I do not accept that Ms Neill was nearly as badly injured as she described. I think that the reason for her ultimate disablement was a combination of increasing problems with her pre-existing medical conditions, the onset of a secondary psychiatric condition, and subsequent injuries, but I will refer to that in more detail later in these reasons.
127Fifthly, the reason why Ms Neill did not attend for medical treatment before 15 October 2015 is unexplained; however, I am more inclined to accept that she probably did suffer injury resulting from the occurrence of the subject incident, because there is a fairly strong body of evidence from medical practitioners who consider that the occurrence of the subject incident is to be implicated in the injuries on which they gave opinion on causation. I think the body of that evidence is strong, and indeed, somewhat overwhelming for it to be ignored altogether.
Synthesis of the medical evidence
128There are a multitude of issues which impinge upon the assessment of the plaintiff’s damages. Amongst them is identifying Ms Neill’s pre-existing medical conditions, and whether any of them were aggravated as a result of the occurrence of the subject incident, and to what extent. The medical evidence is complicated, and indeed, so complicated that it is difficult to tease out from it answers to these questions.
Right shoulder
129The evidence demonstrates that Ms Neill suffered a significant injury to her right shoulder in 2008 requiring surgical repair by Mr Pullen. The condition of her right shoulder was aggravated significantly by the need to use a wheelchair and crutches as she regained mobility after suffering the injuries to her right ankle.
130The chronology of what occurred is difficult to follow. Ms Neill had an ultrasound in 2011 and was then referred to Mr Pullen. He performed surgery in September 2013 which she described as a rotator cuff repair. She described the outcome of the surgery as being “fabulous”. That outcome led to her reducing the physiotherapy she was having. It did not interfere with her capacity for work.[78]
[78] Transcript 67-68 and 102-103
131Dr Puzsar, and for that matter most of the other medical practitioners who treated Ms Neill or examined her on a medico-legal basis, concentrated more on Ms Neill’s right hip and gluteal region rather than on her right shoulder. The consideration given to her right shoulder appears to me to be sparse and not overly informative. Most of the references to it have been combined with references to other medical conditions rather than being considered in isolation.
132Ms Neill described right shoulder pain as being 3 out of 10 on a good day and 10 out of 10 on a bad day. On a bad day, she cannot move her right shoulder. She described a number of right shoulder injury consequences, but often in connection with other injuries.[79]
[79] Transcript 102-103 and 104
133Ms Neill said that Dr Wilk gave her an injection into her right shoulder. According to Dr Wilk, he gave her an injection, but not into her right shoulder. Otherwise, the treatment appears to have been by medication and morphine patches, but, again, I am left with the impression that the medication prescribed for her was for the aggregate of all of the medical problems that she was encountering at the time when the medication was prescribed, including pre-existing medical conditions.
134I note that there is no medical report from Mr Pullen, to whom Ms Neill was referred after the occurrence of the subject incident. Whilst Strike did not submit that I should draw an adverse inference from the failure to obtain a medical opinion from him, I note that he is the only person who treated her for the right shoulder injury except for Dr Puzsar, who really says little about Ms Neill’s right shoulder.
135I think that Ms Neill exaggerated the consequences of her right shoulder. I think that she probably suffered an exacerbation of the pre-existing condition of her right shoulder, but it is difficult to determine the extent of the exacerbation and the contribution of the exacerbation to her pain and suffering and loss of enjoyment of life.
Right hip
136The evidence demonstrates that in 2011, Ms Neill had developed a labral tear in her right hip which required arthroscopic repair performed by Mr O’Donnell. Subsequently, Mr Tran considered that an MRI scan demonstrated that Ms Neill had severe osteoarthritis in her right hip and would eventually need a total hip replacement. Associate Professor Love put all of this into its proper perspective after he examined Ms Neill on 26 October 2017. He considered that whilst her right hip had been aggravated by the occurrence of the subject incident, by the time he examined her, he considered that if the subject incident had not occurred, the arthritis in her right hip would inevitably have progressed to the level that it had reached at the time he examined her.
137What that means is that the aggravation was probably a relatively minor contributor to her pain and suffering and loss of enjoyment of life between the date of the occurrence of the subject incident and sometime around when Associate Professor Love examined her. That is a period of about three years.
Gluteal region
138The evidence demonstrates that Ms Neill had a significant problem with her gluteal region before the occurrence of the subject incident. That is very evident from the opinion of Associate Professor McCrory. Furthermore, it is evident from the opinion of Mr Tran that there were two pathological processes at work which were of concern to him. One was the severe osteoarthritis in her right hip, and the second was the full thickness tear of her gluteus medius, and a partial thickness tear of her gluteus minimus.
139Mr Tran operated on Ms Neill, but in the absence of a further report from him, it is not clear what surgery he performed on her gluteal region, except that it is clear that he performed an iliotibial band release and bursectomy, both of which relate to the right hip and not to the gluteal region. That was the impression that Ms Neill was left with of the surgery which he performed.[80]
[80] Transcript 93
140Ms Neill complained of pain in her buttock from the time of the occurrence of the subject incident, and subsequently. She described it as interfering with her capacity to walk,[81] which worsened, and had something to do with the urinary incontinence which developed and which continues to trouble her.[82] I should note at this point, that any connection which Ms Neill attempted to make between the onset of injuries following the occurrence of the subject incident with her incontinence was abandoned because of a lack of any evidence making such connection.
[81] Transcript 85, 92
[82] Transcript 91
141What is not clear from the evidence is whether the pain and disablement experienced by Ms Neill was produced by her right hip or her right buttock, or both. The fact that Mr Tran did not repair the gluteal tendons may well mean that when he operated that what he found was pathology in the right hip which required repair, and nothing or little to be found in her gluteal region.
Lower back
142I have not made much reference to Ms Neill’s lower back because there is very little to be found in the medical evidence of complaints of pain in her lower back, and any significant treatment for her lower back. Most of Ms Neill’s complaints were about her right side from her shoulder down through her right arm, chest, lower back and right hip, yet most of the medical evidence demonstrates a concentration on her right hip.
Other injuries
143Ms Neill described neck and chest injuries in her evidence and when she was examined by some of the medical practitioners whose evidence is relied on by the parties. I was left with the impression from that evidence that they were both significant injuries. However, there is very little medical evidence to support a conclusion that she actually suffered a neck or chest injury of any significance.
The secondary psychiatric condition
144Dr Mutton’s opinion appears then to marry up with the opinion of Dr Farnbach, who considered that Ms Neill was suffering from a psychiatric condition, but it was based upon her complaints that all of the medical conditions that she described to him resulted in a very high level of persistent pain and interference with her general functioning. Those medical conditions included the whole of her right side, including her right shoulder, right hip, right knee, right ankle, the right side of her back, and that the pain in her chest and lower back were worse than the other areas she described to him.
145The fact that Dr Farnbach based his opinion that Ms Neill had suffered a secondary psychiatric condition upon all of those medical conditions renders his opinion of little utility because it is clear that some of the medical conditions which he understood were causing her pain and disablement were either not caused by the subject incident, or only partially so. It is not clear to what extent he considered that the secondary psychiatric condition was caused by the injuries resulting from the occurrence of the subject incident only.
146Ms Kobatsiari’s opinion is likewise of limited utility because, like Dr Farnbach, she based her opinion on medical conditions which she understood were causing Ms Neill pain and disablement, but which were either not caused by the subject incident, or only partially so. One other factor which further renders her opinion of limited utility is the fact that she included a consideration of the consequences of the subsequent injuries to her right fibula and right knee.
147The opinion of Dr Parsons is curious in the extreme. I have not expended a great deal of effort in summarising her opinion because of the extraordinary number of medical complaints which Ms Neill attributed to the occurrence of the subject incident, and her opinion that the constellation of injuries which she recited are causally linked to the occurrence of the subject incident. I do not accept much of her opinion, but what it demonstrates is the fact that Ms Neill appears to have reached a point where she did not discriminate between the medical conditions which were pre-existing from those which were aggravated by the subject incident, and then those which occurred subsequently. She appears to have lumped many, if not all of them, together, which inevitably leads to opinions of examining medical practitioners becoming skewed or of limited utility or ultimately unreliable.
148All of this makes the task of determining the extent to which Ms Neill’s secondary psychiatric condition was caused by the injuries she suffered as a result of the occurrence of the subject incident very difficult.
Assessment of damages
Pain and suffering and loss of enjoyment of life
149I think it is probable that Ms Neill suffered an impact to the right side of her body broadly consistent with her evidence. I accept that she suffered an aggravation of the pre-existing medical conditions affecting her right shoulder, right hip and gluteal region. I think it less probable that she suffered an injury to her chest because, apart from her evidence, there is little in the medical evidence which diagnoses an injury to her chest except for what I think are rather fleeting references, and then the opinion of Dr Parsons, which I do not accept for reasons which I have spent some time explaining.
150I think it is probable that the aggravation of those pre-existing medical conditions contributed to the secondary psychiatric condition referred to by Dr Farnbach, Dr Tilakawardena and Ms Kobatsiari, but it is difficult to be certain of the extent of the level of that contribution.
151The medical evidence demonstrates that the pre-existing condition of Ms Neill’s right shoulder, right hip and right gluteal region were significant. With respect to the right hip, it was relatively short lived according to Associate Professor Love. It is difficult to say much with respect to the gluteal region except that Mr Tran did not treat it surgically, which suggests it was not the issue which was causing Ms Neill’s pain and incapacity. The right shoulder is equally difficult to determine because Dr Puzsar thought it was an exacerbation and referred Ms Neill back to Mr Pullen, and of course nothing is known of what came of that referral to him.
152In addition to Ms Neill’s affidavit, she gave fairly extensive evidence of the pain and suffering and loss of enjoyment of life consequences flowing from the injuries resulting from the occurrence of the subject incident.
153Ms Neill described experiencing pain in her right hip and gluteal region which is there all the time and which varies in degree. On a good day the pain is a 3 out of 10 and on a bad day it is 10 out of 10. When it is bad, she is unable to walk and becomes housebound. She uses Mobic, which is an anti-inflammatory, and oxycodone at night about once a week to once a fortnight, also for her back, shoulder and neck pain.[83] She used morphine patches for about six months after she resigned from her work in February 2017.[84]
[83] Transcript 100-102
[84] Transcript 104
154Ms Neill described experiencing pain in her right shoulder which she described as terrible. The pain extends through her interscapular area, down her right arm and into her back. It is pain she has every day. She has difficulty lying on her right side. She described the pain as sometimes exceeding 10 out of 10.[85]
[85] Transcript 102-103
155Ms Neill described the consequences of the pain she experiences as impacting upon her ability to sleep, ability to walk, and to engage in the social life that she previously enjoyed. For example she referred to an inability to wear high heel shoes. She described her current treatment as general medical treatment, and also treatment from an osteopath and a podiatrist relevant to her difficulty with her right leg and her right ankle.[86] She has put on weight, which I assume to be because of the fact that she is less active.
[86] Transcript 108-109
156As a result of suffering a secondary psychiatric problem, she used Zoloft and Palexia to treat her psychiatric symptoms. They had side effects which saw her cease using them.[87]
[87] Transcript 106-107
157Ms Neill said that she thought she might have worked to seventy years, although, perhaps not full time.[88]
[88] Transcript 111-112
158The effect of Ms Neill’s evidence was that there are very few areas of her life prior to the occurrence of the subject incident that are unaffected by the injuries. The major consequence is her incapacity for work since February 2017.
159I think that Ms Neill probably suffered an aggravation of pre-existing medical conditions affecting her right shoulder, right hip and gluteal region. However, I think the aggravation of her right hip ceased at the time described by Associate Professor Love. I think the aggravation of her right shoulder may well persist to some degree, but that degree is difficult to assess. I think the gluteal region is rather more associated with her right hip than a discrete injury to the gluteal region. I think that the aggravation of those injuries contributed to a secondary psychiatric condition, however, so did some of her pre-existing medical conditions which were not aggravated as a result of the occurrence of the subject incident, and also other medical complaints which she complains about, for example her neck, and also the subsequent injuries she suffered to her right fibula and right knee.
160This is a very difficult case to assess, but doing the best I can in the circumstances, I think that a sum of $100,000 for the pain and suffering and loss of enjoyment of life suffered by Ms Neill for all of the injuries which I consider were caused by the occurrence of the subject incident is full, fair and reasonable in the circumstances.
Economic loss
161I think the reason why Ms Neill stopped working in February 2017 was as a result of a constellation of medical conditions, both related and unrelated to the occurrence of the subject incident. I think her pre-existing medical conditions of her right shoulder, right hip, gluteal region and right ankle contributed significantly to her being vulnerable to incapacity for work. I accept that the aggravation of those pre-existing medical conditions have added to that vulnerability and played a part in Ms Neill becoming incapacitated for work by February 2017; however, for reasons which I think I have made clear, so did other medical conditions which were not aggravated.
162I think it is probable that Ms Neill would not have retained a capacity for work on a full-time basis if the subject incident had not occurred. She would have had to contend with a seriously deteriorating right hip, a pre-existing problem with her right shoulder, and the problems created by her right ankle. Additionally, the subsequent injuries to her right fibula and right knee which were considered by some of the later medico-legal examiners to be injuries of significance in contributing to her level of general incapacity, and specifically her incapacity for work.
163I do not accept that this is a case where Ms Neill’s past and future loss of earning capacity are to be calculated by working out her weekly net wage against the period of time she has been off work, and will be off work into the future.[89]
[89]The plaintiff set the formulation of its claim for damages for pain and suffering and loss of enjoyment of life, past medical expenses, past and future economic loss and future medical expenses in written submissions dated 23 April 2021. The defendant provided a corresponding calculation in its written submissions dated 23 April 2021
164A simple calculation of her past loss, calculated by the plaintiff is 217 weeks at $1,376 net per week. The total is $298,592. I should add that the calculation of $1,376 was agreed, comprising net income plus 9 per cent superannuation. That figure was calculated on the assumption that all of the injuries contended for by Ms Neill resulted from the occurrence of the subject incident and have persisted unabated.
165I think the injuries I accept have incapacitated Ms Neill in the past have had far less impact upon her capacity for work than contended for by the plaintiff. I think that the majority of Ms Neill’s incapacity for work has been caused by the pre-existing medical conditions, and, again, doing the best I can, I consider that her past economic loss is about one third of what she claims, which I will round off to $100,000.
166By the time of the trial of this proceeding, it became very clear to me that the more recent assessments of the medical conditions which are plaguing Ms Neill are literally all of the medical conditions which she has had the misfortune to suffer over very many years.
167The plaintiff provided me with its method of calculation of the plaintiff's future loss of earning capacity which it submitted amounted to $121,358. That figure is calculated by using the agreed wage figure of $1,376 net per week, the relevant 3 per cent discount tables and by discounting the gross figure produced by reference to the reasoning in Malec v Hutton,[90] and for the vicissitudes of life. The defendant submitted that the calculation of Ms Neill’s future economic loss is not amenable to the arithmetic calculation undertaken by the plaintiff, but should be undertaken rather more with a broad brush. I agree. I think that at best, Ms Neill may have been able to work in some part-time capacity for a relatively short period of time into the future. Inevitably such a calculation requires a broad-brush approach. I consider that an allowance of $50,000 for her future economic loss is consistent with some retained residual capacity for future work for a relatively short period of time into the future.
[90](1990) 169 CLR 638 (“Malec”)
168The plaintiff’s claim for the past and future medical expenses is even more difficult to assess. The plaintiff submitted that Ms Neill’s past medical expenses are $74,000. It claims $20,000 for her future medical expenses based upon its reduction by applying the reasoning in Malec.
169Strike undertook an analysis of the plaintiff’s payments of Ms Neill’s medical and like expenses in the twelve months before the occurrence of the subject incident and in the twelve months subsequent to it. The purpose was to demonstrate that the payments in the twelve months before exceeded the payments made subsequently. Furthermore, Strike submitted that the evidence demonstrates that the claims for payment of medical and like expenses before and after merged and were paid under the claim relevant to the occurrence of the subject incident. Strike relied upon cross-examination of Ms Neill regarding the claim under which she has had her medical and like expenses paid. Her answer is equivocal whether the two claims merged.[91]
[91] Transcript 134-135
170I reluctantly think that the best evidence that I can work off is Strike’s analysis of the before and subsequent payment of medical expenses. The analysis points to more being paid before, and also whether claims merged resulting in the past medical expenses of $74,000 not being representative of medical expenses related to the claim arising out of the occurrence of the subject incident. It is for this reason that I prefer Strike’s analysis. Again, doing the best I can, I think the plaintiff’s claim for past medical expenses is about half the amount claimed, being $37,000.
171My impression of Ms Neill’s evidence is that she is not having any significant medical treatment at present. She currently sees a general practitioner, and there may be the need for prescription of medication, and perhaps other medical or paramedical treatment consistent with what she has had in the past. It is for this reason that I again prefer Strike’s analysis. Again, doing the best I can, I think its claim for future medical expenses should be allowed at $7,500.
172Therefore, the Factor A calculation is $294,500. The application of the formula then produces the following result – the notional common law assessment of Ms Neill’s damages is $294,500. From that amount must be deducted Factor C, which is Strike’s contribution to the settlement of Ms Neill’s common law claim which was $100,000. That deduction reduces the $294,500 down to $194,500. Then that amount must be divided by Strike’s liability at common law under factor X which is 70 per cent. That reduces $194,500 down to $136,150.
Orders
173I will now hear from the parties concerning judgment, orders for costs and any ancillary orders that are required.
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