Westerman v Roads and Maritime Services

[2016] NSWDC 52

District Court

New South Wales

Medium Neutral Citation:	Westerman v Roads and Maritime Services [2016] NSWDC 52
Hearing dates:	11 and 12 February 2016
Date of orders:	15 February 2016
Decision date:	15 February 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment for the plaintiff against the defendant in the sum of $38,887.50. (2)   The costs of the proceedings be paid: (a)   up to and including 20 November 2015 by the defendant; and (b)   from and including 21 November 2015 by the plaintiff.
Catchwords:	NEGLIGENCE – damages – assessment – pedestrian – pot hole in road – foot injury – causation – previous foot injuries – contributory negligence
Legislation Cited:	Civil Liability Act 2002, s 16 Uniform Civil Procedure Rules 2005, r 42.15
Category:	Principal judgment
Parties:	Lenore Westerman (plaintiff) Roads and Maritime Services (defendant)
Representation:	Counsel: Mr T Boyd (plaintiff) Mr M Hutchings (defendant)   Solicitors: Herbert Weller Solicitor (plaintiff) Crown Solicitor’s Office (defendant)
File Number(s):	2014/287769
Publication restriction:	None

Judgment

1) INTRODUCTION

1. Lenore Westerman fell and suffered fractures in her feet when stepping into an unseen pothole while crossing a road. She sues Roads and Maritime Services ("RMS") for damages for negligence. In its defence, RMS admits it breached its duty of care. As a result, these proceedings became an assessment of Mrs Westerman's damages, including questions of causation and contributory negligence.

2. The parties each prepared a statement of issues; both listed five issues but there the similarity ended. Adopting and adjusting both lists indicates the following issues:

1. the existence and degree of any contributory negligence;

2. the appropriate award for non-economic loss, having regard to the cause of her symptoms and s 16 of the Civil Liability Act 2002;

3. the appropriate award for economic loss considering any loss of capacity of Mrs Westerman to work as a facility manager;

4. whether and to what extent Mrs Westerman is entitled to an award for "commercial care";

5. whether and to what extent Mrs Westerman is entitled to an award for future treatment having regard to her need for orthotics; and

6. the appropriate award of damages.

2) ACCIDENT

3. Mrs Westerman was on her way to work early in the morning. She parked her car by the roadside and commenced to walk to a bus stop. It was shortly after 6.00am on 19 June 2013, a few days from the winter solstice. Light misty rain was falling in the dark. Heavier rain had fallen earlier in the night. The road was wet and any potholes were hidden by being full of water. There were streetlights in the area, though no evidence of whether they were working then or now.

4. Mrs Westerman crossed the street, and upon reaching the kerb realised she had left her bus pass in the console of her car. She turned back, and in so doing stepped in a pothole and fell forward. Both feet were caught in the pothole as she fell. She landed on her hand, hip and knees. There is some evidence that the pothole was approximately in the middle of the road, perhaps slightly closer to the opposite side to where she had parked. The sealed roadway on this suburban street was about the width of three car widths.

5. Mrs Westerman was transported by ambulance to Ryde Public Hospital where fractures in both feet were diagnosed after CT scans. She was fitted with moon boots which she wore until she returned to work.

3) CONTRIBUTORY NEGLIGENCE

6. The allegation of contributory negligence was based on a failure to keep a proper lookout or exercise reasonable care for her safety. Mrs Westerman denied she was hurrying to the bus stop or back to her car and was reluctant to concede that she was walking quickly. Evidently, she did not see the pothole when she initially crossed the road or when she turned to return to her car. Is that enough to establish contributory negligence? I do not think it is. There was no evidence of not taking reasonable care or failing to keep a proper lookout. The argument, really, comes down to the proposition that Mrs Westerman did not see the pothole and, therefore, did not keep a proper lookout. But the conditions dark, wet, with a pothole full of water explain her failure to notice a nearby pothole on the way to the kerb. In my view, the failure to notice the pothole on the way back to her car is unsurprising. Mrs Westerman had just walked across the road, turned to walk close to an identical route back. She was then looking at her car. A reasonable person would assume the surface on which she was going to walk would not be different. Of course, the route must have varied slightly or she would not have stepped in the pothole. Although there was evidence that Mrs Westerman commonly parked in that street, there was no evidence either that she had previously seen the pothole or as to the length of time that it existed. There was no suggestion that there was anything done by RMS, adequate or otherwise, to alert pedestrians to the possibility of a pothole. In my view, the evidence is insufficient to establish that Mrs Westerman took insufficient care for her own safety, and I reject the claim of contributory negligence.

4) DAMAGES

7. Mrs Westerman was off work for about six weeks. She maintained steadfastly that it was three months, reluctantly conceded it must have been two and a half months, then finally, at the conclusion of her evidence, belatedly accepted that it was only six weeks. She resisted documentary material signed by her and others that established clearly the period she was away from work. Whether her reluctance to concede this point was due to over confidence in her, on this aspect faulty, memory or because of a desire to resist giving any unfavourable evidence was not clear, but neither conclusion would help her credit.

8. She was also confronted with a statement signed by her that she fell on "the footpath". She again steadfastly refused to concede that these particular words were written by her, even though the rest of the document was in her handwriting and those words were in the same handwriting. Again, there could be no doubt that she wrote the words, and her unwillingness to acknowledge that fact showed her not to be balanced and reliable in dealing with the circumstances of her case. It was common ground that she fell on the roadway. So, an earlier mistaken note was of little significance. Yet, her evidence concerning the note magnified its significance, not in what it said but in the tortuous path she took to avoid stating that she had made a mistake.

9. Mrs Westerman's credit was also not assisted by her continually ignoring the focus of questions and preferring to give details of the general subject matter of the question rather than addressing its precise terms. If she was asked whether she told a doctor of a certain symptom, she tended to give evidence about whether she suffered from the symptom. This feature of her evidence remained unaltered notwithstanding counsel from counsel and from the Bench on the matter. Whilst this method of dealing with cross examination might not be uncommon, Mrs Westerman was an intelligent woman with quite an impressive resume and to continue with this mode of giving evidence, resisting suggestions that might assist her in giving evidence efficiently, also did not assist her credit.

10. I do not regard this mode of her giving evidence to be as significant in assessing her credit as her repeated failures to make obvious concessions when given an opportunity to do so. But it was, nonetheless, a matter to be taken into account. All these matters caused me to be cautious about accepting the entirety of Mrs Westerman's evidence.

a) NON ECONOMIC LOSS AND THE CAUSE OF HER SYMPTOMS

11. Section 16 of the Civil Liability Act 2002 requires the Court to determine the severity of the non-economic loss as a proportion of a most extreme case. RMS submitted that the appropriate amount was 18%; whereas, Mrs Westerman submitted that the correct figure was 28%. However, the parties conceded that these percentages fairly represented the range depending on which party's case I accepted.

12. RMS submitted that Mrs Westerman had recovered completely from her broken feet in the period of a few months after the fall and has no ongoing symptoms attributable to the fall. Both parties accept that if that is so, 18% is then an appropriate percentage.

13. Mrs Westerman, on the other hand, submitted that she has daily, serious pain in her feet requiring regular painkillers. If this is accepted to have resulted from the fall, there was little resistance from RMS that Mrs Westerman's submission of 28% of a most extreme case might be an appropriate percentage.

14. Mrs Westerman continued physiotherapy for about three weeks after she returned to work some six weeks after the fall. About two months later, in November 2013, she was given an injection of Marcaine and had further X-rays when she was told to wear hard soled shoes with orthotics. In March 2014, she had MRI scans, and in July that year she commenced seven sessions of physiotherapy extending over three months. She thereafter saw no medical practitioner about her feet until May 2015.

15. Mrs Westerman claimed serious, chronic and ongoing pain requiring regular painkillers and anti-inflammatory medication. These claims suffer from the weaknesses in her credit to which I have referred.

16. A second problem is, as her chronology indicates, that for long periods, Mrs Westerman made no complaints of these problems to her treating doctor. There are periods of no regular complaints, and she appears to have ignored her medical practitioners' encouragement to return if she experienced problems.

17. The third problem she faces is the uncertain connection between the pain she now suffers and the injuries from the fall. Her history included an old twisted ankle injury of her left foot at a work Christmas party, amongst several other sporting injuries including what she described as "occasional sprains".

18. The defendant's orthopaedic expert, Dr Drummond, concluded that the nature of her complaints of pain were not compatible with the pothole injury and reflected "wear and tear" from an extensive sporting career.

19. Mrs Westerman, now 48, had a long history of sporting activity, principally softball and soccer but also other sports. She was counselled by a sports physician in respect of a hip injury in 2006 about the impact on her of her sporting lifestyle. She continued to play B grade softball up to the time of the fall. Mrs Westerman has not played competitive sport since the fall, apart from limited involvement in an annual social cricket match, although she has, since the fall, spent some time attending the gym. The details of that were not the subject of evidence.

20. Mrs Westerman's orthopaedic expert, Dr Bruce, said that he largely agreed with Dr Drummond's report. However, while Dr Drummond thought Mrs Westerman's present complaints were unrelated to the fall, Dr Bruce resisted that terminology, preferring to say that they were not fully explained by the fall and were an aggravation of pre-existing ligamentous damage.

21. Both doctors reported on the evidence of past injuries which, like the present one, involved ligamentous emulsion injuries leaving bony fragments, and mature ossicles were present in the images taken of her feet and ankles. Dr Bruce referred to Mrs Westerman's symptoms as "mild".

22. Thus, there are three theories advanced: Mrs Westerman claims various symptoms attributable entirely to the fall and asserts that she had no residual symptoms from any previous injuries; her orthopaedic specialist, Dr Bruce, attributes her "mild" symptoms to an aggravation of pre-existing ligamentous damage so that both the fall and the old injuries are needed to explain her current symptoms; Dr Drummond's conclusion, with some careful reasoning, distinguishes the symptoms of which she complains now from the injuries resulting from the fall in 2013 on the basis of the place in the foot where those symptoms arise. Dr Bruce expresses some agreement with this analysis but differs where Dr Drummond concludes that the current symptoms must be unrelated to the fall.

23. Whilst I see some force in the reasoning of Dr Drummond, the coincidence of the timing of the fall with Mrs Westerman ceasing her long involvement in competitive sport and the circumstances that some five months after the fall well after she returned to work, she underwent X-rays and a Marcaine injection in her right foot, apparently as her "fractures" had not united persuade me that, on balance, the fall is not entirely unrelated to all her current symptoms. However, the reasoning of Dr Drummond persuades me that many of her current symptoms cannot be related to the fall because they are "not compatible" with the injuries from the fall. He instances "instep sole pain with radiation and numbness towards the toes" not being compatible with the fall which resulted in injury to the "lateral side of the foot adjacent to the ankle joint" and gave other examples.

24. Taking all these matters into account, I am persuaded that although the impact of ageing on Mrs Westerman's previous sporting injuries is a predominant cause of her current symptoms, her fall is not entirely unrelated to all of her symptoms. In addition, I accept Dr Bruce's characterisation of Mrs Westerman's symptoms as "mild". In my view, her injuries and disabilities represent 22% of a most extreme case. That amounts to an award of 4.5% of the maximum amount or, I think, $27,000. Obviously enough, an amount representing 4.5% of the maximum allowed does not fully compensate a person for an injury that is 22% of the most extreme case, but that is a consequence of the legislative parameters on personal injury damages awards.

b) ECONOMIC LOSS

25. Mrs Westerman received payments for the six week period she was off work. Both parties agree that there is no economic loss for that period.

26. Mrs Westerman claims an award of $200,000 for lost earning capacity on the basis of "but for the accident she would be working as a facility manager with an earning capacity of $120,000 a year", whereas her present earnings are $90,000 per year. This aspect of Mrs Westerman's claim is not without problems.

27. Firstly, Mrs Westerman was employed as a facility manager once when that position became available in 2009 at Goodman Fielder where she had worked for ten years, the previous seven of which as an executive assistant to the Chief Information Officer. She was made redundant in May 2012 and has not since worked as a facility manager. Her redundancy was a source of some disappointment for her, although its impact on her subsequent career is unclear.

28. Secondly, her career experience is predominantly as an executive assistant having performed that role at Goodman Fielder for seven years and Burns Philp for a year immediately before and after the fall. She is now employed as an executive assistant in a Legal Department. Her relatively narrow experience as a facility manager at the one facility for one company might present a challenge for automatic employment in that position elsewhere.

29. Thirdly, Mrs Westerman has had desires of working as a facilities manager but she has not once, either in the 13 month period between her redundancy and the fall or after the fall in the pothole, applied for such a position. She claimed to have often researched facility manager positions although not, as Dr Bruce her orthopaedic expert apparently mistakenly recorded, to have applied for other such positions. On each occasion of her research, she was unable to find a facility manager position that suited her experience. That she did not apply for a solitary facility manager position in the 13 months after her redundancy must raise a question about the depth of her desire or optimism to return to be a facility manager.

30. Each of these three reasons indicates that Mrs Westerman's prospect before the fall of obtaining a facility manager position might be regarded as less than likely.

31. A fourth factor against this head of damage is that I am not persuaded that she is physically incapable of fulfilling the role of a facilities manager. Neither Dr Drummond nor Dr Bruce proffered such an opinion. Her orthopaedic specialist, Dr Bruce, said, "I would class her as fit to resume work as a facility manager."

32. Mrs Westerman submitted that she cannot readily climb ladders and engage in other physical activities characteristic of a facilities manager. Dr Bruce does indicate that she "would be best to avoid a position" in which a substantial proportion of the work involves those sorts of activities. But the evidence that a facility manager is required to do those tasks is thin. Her description of the position in her resume makes no mention of these activities, and as she supervised a group of five persons as facility manager, I would not infer that she personally would need to undertake such tasks.

33. The fact that she may have done some physical tasks as facilities manager at Goodman Fielder is insufficient to persuade me that it is a necessary part of her serving as a facilities manager. There was no evidence that her research unearthed facility manager positions that required physical tasks to be undertaken or that the physicality of the particular positions was the reason that she did not apply.

34. Finally, there was no evidentiary basis to conclude that a facility manager receives 33% higher annual remuneration than an executive assistant, as Mrs Westerman claims. Mrs Westerman, when she was promoted from executive assistant to facilities manager at Goodman Fielder, received an increase of $7,500, or 10%, on her salary of $75,000. Upon this basis, I would conclude that were Mrs Westerman to obtain a position as a facilities manager, her salary of $90,000 would increase to $99,000.

35. Bearing all these matters in mind, I think it is less than likely that Mrs Westerman would have applied for and successfully obtained a facilities manager position had the fall not occurred. I do not think that likelihood has changed significantly by reason of her fall. I am not persuaded that she is unfit to fulfil such a position by reason of the pothole accident. I adopt the conclusion of Dr Bruce that she is physically fit to do that work. As there is no other basis asserted for or evidence solicited to support an alternative form of economic loss such as a reduced working life, I could not award any significant amount for economic loss. I would allow a small buffer of $4,000 on the basis that she is now perhaps a less robust employee than she would otherwise have been without the fall.

c) COMMERCIAL CARE

36. Mrs Westerman claims an amount of $40 per week since the accident and for life. The suggested basis for this claim is that Mrs Westerman has paid for domestic assistance of $80 per fortnight since the injury. That is true. However, Mrs Westerman also paid for the same domestic assistance of $80 per fortnight for some time prior to the injury in June 2013. Her need for domestic assistance may be slightly increased by her injuries, but that has not, and, on her case, will not reflect any change in the cost of the services. In my view, as she does not require additional care than that which she has previously incurred, it must follow that no costs and, thus, no damages resulted from the accident. I make no award in respect of commercial care.

d) PAST AND FUTURE TREATMENT

37. Past treatment is agreed by the parties at $2,887.85. I have no details of the nature of these costs so they are of no real assistance in determining the cost of future care.

38. Mrs Westerman is reluctant to have any operations. She has so far resisted advice that it may assist. I think it unlikely that she will decide to have an operation. Further, it is difficult to find that any potential operation is principally attributable to injuries resulting from the June 2013 fall rather than to the consequences of her previous sporting injuries or her twisted ankle injury.

37. Mrs Westerman gave evidence of taking analgesic and anti-inflammatory medication regularly. Some of this cost should be awarded. I have not been provided with details of the cost or the duration of medications. Doing the best I can, I propose to allow $3,000 for the cost of future pain relief.

38. Mrs Westerman also claimed for the cost of special shoes and orthotics. Although she claimed the cost of special shoes was $360 to $400 per pair, her oral evidence was that the cost was $250 to $350 per pair. The documentary evidence tendered in respect of three pairs of shoes, indicated all were less than $230. She indicated that equivalent standard shoes cost about $90 to $100 and she also asserted a need to replace these shoes within an 18 month period. I am prepared to accept an additional cost of $130 per year for a new pair each year, but it would be incorrect to attribute all of this to the fall. I would allow 50% of this amount, $65, for the residue of her life. The product of $65 ($1.30 a week) and the multiplier of 917.5 provides a sum of $1,192.75.

39. Mrs Westerman also claimed orthotics or supportive shoe inserts. She has given no details of the cost, quantity or frequency of replacement of orthotics, but they are used by Mrs Westerman and were assessed as reasonable by Dr Drummond. There would need to be a discount to reflect the impact of unrelated foot ailments causing a need for the orthotics. In the absence of evidence of cost, I propose to allow a total of $2,000 for shoes and orthotics.

e) DAMAGES CALCULATION

42. Accordingly, Mrs Westerman is entitled to damages as follows:

(a)	non‑economic loss	$ 27,000.00
(b)	past medical costs	$ 2,887.50
(c)	small buffer for lost robustness as a reduction of employment capacity	$ 4,000.00
(d)	future treatment including shoes and orthotics	$ 5,000.00
Total	$ 38,887.50

43. Accordingly, judgment shall be given to Mrs Westerman in the sum of $38,887.50.

5) COSTS

44. RMS served an offer of compromise for an amount exceeding the amount of the judgment on 20 November 2015, which was not accepted by Mrs Westerman. Although Mrs Westerman does not consent to an order under r 42.15 of the Uniform Civil Procedure Rules 2005, she says nothing in opposition to an order being made under that section, modified to some degree by the defendant's claim that the order in its favour from 21 November 2015 be on the ordinary basis only.

45. On that basis, I see no reason why RMS should not receive an order in accordance with r 42.15(2), and accordingly, there shall be an order that the costs of the proceedings be paid:

1. up to and including 20 November 2015 by RMS; and

2. from and including 21 November 2015 by Mrs Westerman.

6) ORDERS

46. Accordingly, the orders of the Court are:

1. Judgment for the plaintiff against the defendant in the sum of $38,887.50.

2. The costs of the proceedings be paid:

1. up to and including 20 November 2015 by the defendant; and

2. from and including 21 November 2015 by the plaintiff.

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Decision last updated: 15 April 2016