Whitton v Dexus Funds Management Limited

[2019] NSWDC 579

District Court

New South Wales

Medium Neutral Citation:	Whitton v Dexus Funds Management Limited [2019] NSWDC 579
Hearing dates:	19-23 August 2019; 4-5 September 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply to seek a different cost order to that in (2). (4) Exhibits to be returned after 28 days.
Catchwords:	Torts – negligence – plaintiff struck by mobility scooter being driven in a shopping centre – whether defendant shopping centre operator breached a duty of care owed to the plaintiff – whether warnings required by signs due to a hoarding near an amenities corridor – whether convex mirrors needed – whether a barrier needed - causation – degree of economic loss of plaintiff – whether an amount for domestic assistance should be awarded
Legislation Cited:	Civil Liability Act 2002 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulations 2011 (NSW)
Cases Cited:	Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Bruce v Apex Software Pty Ltd [2018] NSWCA 330 Graham v Baker (1961) 106 CLR 340 Gulic V Angelovski [2018] NSWCA 161 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Lloyd v Thornbury [2019] NSWCA 154 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Penrith City Council v Parkes [2004] NSWCA 201 Reece v Reece [1994] NSWCA 259 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75
Category:	Principal judgment
Parties:	Maree Whitton (Plaintiff) Dexus Funds Management Limited (Defendant)
Representation:	Counsel: I Roberts SC and S Tzouganatos (Plaintiff) N Polin SC (Defendant)   Solicitors: Turner Freeman (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2018/00252240

Judgment

1. In these proceedings, the plaintiff, Maree Whitton, brings a claim against the defendant, Dexus Funds Management Ltd, the operator of the Deepwater Plaza Shopping Centre at Woy Woy in New South Wales, in relation to personal injuries suffered by the plaintiff on 17 July 2016 when she was struck from behind by a third party driving a mobility scooter in the shopping centre. No claim is brought against the driver of the mobility scooter. The proceedings are brought under the Civil Liability Act 2002 (NSW) (“CLA”).

2. It is not in dispute that the defendant owed the plaintiff a duty of care or that the plaintiff suffered serious injuries to her leg in the accident. The defendant has denied liability and asserts that the injuries were caused by a combination of the negligence of the person driving the mobility scooter, Ms Connolly, and the plaintiff's own failure to exercise reasonable care for her own safety.

3. Accordingly, the issues to be determined are:

1. What was the duty of care owed by the defendant to the plaintiff?

2. Did the defendant breach that duty of care?

3. Did any breach of the duty of care owed cause the injuries in relation to which the plaintiff claims damages?

4. What was the extent of the plaintiff’s injuries arising from the accident?

5. What continuing disabilities and loss does the plaintiff have arising from the accident?

The pleadings

4. The plaintiff commenced her proceedings by way of Statement of Claim filed on 16 August 2018. In the Statement of Claim the plaintiff pleads, in summary, as follows:

1. That she was born in November 1944 making her 71 years of age at the time of the accident and 74 years of age at the time of the final hearing;

2. That the defendant corporation occupied, operated and managed the Deepwater Plaza at Woy Woy in New South Wales;

3. On 17 July 2016, the plaintiff attended the premises and was shopping at the premises. At approximately 12:15pm the plaintiff is alleged to have been exiting the amenities corridor at the shopping centre when she was struck by an unregistered mobility scooter which was travelling along the main thoroughfare of the shopping centre. It is alleged that at the time a shopfront hoarding was present, as Shop 46 at the centre was undergoing refurbishment and this was protruding into the main thoroughfare of the premises;

4. An ambulance was called and the plaintiff was conveyed to hospital. It is pleaded that the plaintiff suffered injury including injury to her right leg and psychological injury;

5. At all material times, the defendant owed the plaintiff a duty of care to exercise reasonable care to avoid risk of injury to the plaintiff, the risk of injury was foreseeable, the risk of injury was not insignificant and a reasonable person in the position of the defendant would have undertaken a number of steps which are set out: see paragraph 13;

6. It is alleged that the defendant breached its duty of care owed to the plaintiff. The particulars of breach of duty are set out in paragraph 14 of the Statement of Claim and are as follows:

“14.  The defendant breached its duty of care to the plaintiff.

Particulars of breach of duty

(a)  Erecting a hoarding on shop 46 such that visibility of those entering the main thoroughfare from the amenities corridor between shops 46 and 56 was significantly restricted/impaired;

(b)  Creating a risk of injury by erecting a hoarding on shop 46 such that visibility of those entering the main thoroughfare from the amenities corridor between shops 46 and 56 was significantly restricted/impaired;

(c)  failing to eliminate and/or reduce the protrusion of the shopfront hoarding;

(d)  failing to enforce speed limits upon scooters being driven on the premises;

(e)  failing to erect warning signs;

(f)  failing to install signage as to the use of scooters on the premises;

(g)  failing to erect a convex mirror allowing those exiting the amenities corridor to see into the main thoroughfare;

(h)  failing to erect a convex mirror allowing those travelling along the main thoroughfare to see into the amenities corridor;

(i)  failing to erect barricades;

(j)  failing to monitor and control the use of scooters on the premises.

(k)  failing to comply with the provisions of the Work Health and Safety Act 2011 (NSW) and the Regulations thereunder.

(l)  failing to comply with its obligations pursuant to the Work Health and Safety Act 2011 (NSW) and the Regulations thereunder; and

(m)  failing to comply with the provisions of Australian Standard AS 1470-1986 Health and Safety at Work - Principles and practices, including:

i.  the application of hazard analysis as to the use of scooters at the premises; and

ii.  carrying out an adequate safety risk assessment in relation to the scooters at the premises.”

7. It is alleged that the defendant was negligent and that the plaintiff would not have suffered the injury which she did but for the negligence;

8. It is also alleged that as a result of the negligence the plaintiff suffered her injuries which are particularised.

5. The plaintiff filed an Amended Statement of Particulars on 15 August 2019 which sets out the particulars of injuries allegedly received in the accident, which include injury to her right leg, bruising, a back injury, pain and depression. Particulars of continuing disabilities include pain and discomfort, anxiety, instability to the right leg, altered gait, difficulty walking, difficulty sleeping and difficulty with pre-accident social, recreational, self-care and domestic activities. Detailed particulars are provided of the damages sought.

6. In a Defence filed 8 January 2019, the defendant admitted that it owed a duty of care to patrons of the shopping centre, admitted that it occupied, operated and managed the shopping centre, admitted that the plaintiff was struck by a mobility scooter whilst walking in the main thoroughfare of the shopping centre, but otherwise puts in issue or disputes the plaintiff's allegations in the Statement of Claim. It is specifically pleaded that the defendant was not negligent, there was no causal connection and that the risk of being struck by a mobility scooter travelling along the main thoroughfare was an obvious risk of which the defendant had no duty to warn the plaintiff. Contributory negligence is also pleaded.

The plaintiff’s evidence

7. There was CCTV film footage of the accident which became part of Exhibit F in the proceedings. In addition, the defendant tendered a number of photographic stills of parts of the CCTV footage which became Exhibits 1 to 3 in the proceedings. The plaintiff’s solicitor also took some photographs which became Exhibit E in the proceedings.

The plaintiff’s oral evidence

8. The plaintiff gave extensive oral evidence. In her oral evidence in chief the plaintiff confirmed that she lived in Kellyville Ridge in Sydney in New South Wales having moved there in July 2018 from Glenwood in Sydney. She said she was born in November 1944 and left school in 1958 to obtain employment at the age of 14 years and to complete a secretarial course. The plaintiff stated that she remained in continuous employment until she married her husband Val in June 1964. At that time he was completing an accounting course and some two years later he finished the course, set up his own practice and the plaintiff then began working for him and remained working for him in various businesses until she recently ceased work.

9. The plaintiff gave evidence that she had six children between 1968 and 1980 and only took two months off from work before and after each birth, with childcare assistance being provided by her mother or others.

10. The plaintiff gave a work history of the family buying a country hotel, her working in the hotel undertaking cleaning duties for some 18 months and then the family moving to Bathurst where her husband worked as an accountant for a religious order while she ran a clothing shop. In due course, the plaintiff's family returned to Sydney, her husband set up an accounting practice at Westmead and she worked fulltime five days per week in that practice. The plaintiff said that she looked after the files, answered the phones, made appointments and managed the business accounts of the practice. She said that the family rarely took holidays and she could only recall three holidays taken by the family.

11. The plaintiff gave evidence that a company called Fleet Wash Industrial Systems Pty Ltd (“Fleet Wash”) was set up by her husband in 1995 which undertook the designing and manufacturing of washing systems for large trucks used on mining sites. Initially, the washing systems were manufactured in the country with an office in Sydney and then the manufacturing facility was moved to Sydney. The company employed a number of people. The plaintiff gave evidence that she worked for Fleet Wash five days per week from 9am to 5pm and undertook all accounting duties for the company including the payment of wages, the payment of invoices, the recording of debtors and creditors and other office administration. The plaintiff said that the role was busy but she did not deal with customers and rarely with suppliers. The plaintiff gave evidence that in the course of her duties she operated a computer and in due course became competent in the use of a computer. She worked in the office in the upstairs of the company premises. The plaintiff said that she remained working for Fleet Wash until 2017 and enjoyed going to work.

12. The plaintiff then gave evidence in relation to some health issues which she had suffered from prior to the accident. The plaintiff said that in 2008 she was diagnosed with Type II Diabetes but with taking medicine, it was controlled and she had no problems with it. In 2010 the plaintiff stated that she had a right total knee replacement which was successful. This caused her to be off work for six weeks after the operation and had resulted from difficulties which she had including pain in walking up stairs. The plaintiff said she continued to do the work necessary for the payment of wages for the business whilst in hospital and, after some difficulties, had a good recovery. The plaintiff also noted that she had stairs in her home at that time which also caused problems but there were no further difficulties after a few months.

13. The plaintiff gave evidence that in 2012 she had a left total shoulder replacement following breaking her shoulder when she fell over a dog. The plaintiff said that she was off work for four weeks and had a short stay in hospital. She said the pain at the time of the accident was considerable and it continued after the accident for a period, but gradually got better and left her with no pain but with a limitation in her left arm which she could only raise to shoulder height. This meant that the plaintiff could not hang up washing and she used a dryer instead.

14. The plaintiff gave evidence that in 2014 she had bursitis in the right groin and had some injections which assisted her with the pain going away. Prior to the accident, the plaintiff stated that she also had some low back pain for a period of about 12 to 18 months but it did not stop her doing things and in particular it did not affect her ability to work or look after the house. However, the plaintiff avoided standing activities including ironing.

15. At the time of the accident, the plaintiff said that she had a large two-storey home with four bedrooms and two and a half bathrooms with extensive living areas and an office downstairs. By July 2016, which was the month of the accident, the plaintiff said that she did not have any children living at home but different children with their families came and stayed with them from time to time if they needed accommodation while they were building houses. By 2016, the plaintiff stated that she had 18 grandchildren ranging from 18 years to two babies. She said that she had extensive interaction with her family, seeing them “all the time” and having them over for a large family dinner on a Sunday.

16. The plaintiff gave evidence that prior to the accident she employed a cleaner for three to four hours per week: T25.41. In cross-examination, this evidence was varied slightly to three to five hours per week. The plaintiff stated that this was not sufficient to maintain the house and on the weekends she did other housework particularly following the grandchildren attending the house on a Saturday after sport and after the family dinner on a Sunday night. She stated that while everyone helped clean up after the family dinner, her husband and her also undertook cleaning and tidying after the family left: T26.36.

17. The plaintiff stated that she occasionally took time off to collect grandchildren from school if it was required.

18. Prior to the accident, the plaintiff said that her husband was in charge of the business and she was in administration. She said that a number of her children were involved in working for the company including sales, the design of the truck washers, meetings with customers, attending site meetings, and other administration.

19. The plaintiff did not recall having falls prior to the accident in addition to the fall where she broke her shoulder: T38.37. She later changed this evidence and admitted having two further falls. These were shown to be in 2015 and 2016.

20. The plaintiff agreed that she enjoyed her work and remained working in her early 70s even though this was past the usual retirement age. She said she did not consider retiring and this was not discussed with her husband: T29.2. She said that prior to the accident her eyesight was “pretty good” and she only wore her prescription glasses to read and for no other purpose, including driving: T29.

21. The plaintiff then gave evidence in relation to the day of the accident. The plaintiff said that on 17 July 2016 she and her husband travelled to the Central Coast to see a friend. In order to do so they travelled through Woy Woy. They saw a shopping centre whilst driving through which she later became aware was the Deepwater Plaza Shopping Centre. She said that she and her husband went there to buy some boots for one of their grandchildren. She said she had never been to the shopping centre before. After parking their car, she and her husband walked into the shopping centre passing Coles and Kmart whilst walking in the main thoroughfare. She described the main shopping thoroughfare as “fairly wide”: T30.42. She left her husband to look at shoes in a shoe shop while she continued on to locate Best and Less in order to inspect children's underwear. After going into Best and Less, the plaintiff decided that she would use the bathroom at the shopping centre and walked down what she described as a “long” walkway to the toilets: T32.40. After using the bathroom, the plaintiff said that she walked down the corridor and that it was “quite busy”: T33.5.

22. The plaintiff said she “momentarily looked” to the right by turning her head slightly but not completely to the right back down the thoroughfare to her right: T33.4-.23. She then said that she “glanced over” slightly to her right and could only see people there: T33.44-T34.6. The plaintiff then gave evidence that she entered the main thoroughfare by turning left and could not recall how many steps she took before she was struck in the back heavily: T34.25. She said the collision was sufficiently strong to turn her around facing the other way and to knock her to the ground. The plaintiff said that she felt excruciating pain and when she opened her eyes whilst lying on the ground she realised that she had been struck by a mobility scooter which was still on top of her shoulder. She gave evidence that she had not seen the mobility scooter prior to it hitting her. However, she agreed that she had seen mobility scooters in shopping centres before: T35.4-.8.

23. The plaintiff said that she had severe pain down her right leg and particularly at the top of her hip. The plaintiff gave evidence that several people came over to assist her and in due course a security guard turned up as did her husband. A screen was put around her and the scooter was moved off her.

24. The plaintiff stated that an ambulance arrived and she was given some painkillers but was told by the ambulance officer that it was necessary to get another ambulance which had a traction device to assist her leg. In due course a second ambulance arrived and she was given further painkillers which lessened the pain. The plaintiff gave evidence that she was taken to the emergency department of Gosford Hospital. She said that she was affected by the painkillers which she had taken and her first recollection at the hospital was hearing the staff laughing that she had an accident with a mobility scooter: T37.25.

25. The plaintiff stated that she had terrible pain in her leg and that in due course on 18 July 2016 an operation was performed on her by a Dr Bateman which later evidence established was an open reduction and internal fixation with a metal nail rod. The plaintiff gave evidence that she continued to have terrible pain and was discharged from Gosford Hospital on 21 July 2016.

26. The plaintiff stated that she had restricted movement in her right leg and “almost unbearable” pain although she was able to get around on crutches: T38.15. She was transferred to the Norwest Hospital for Special Surgery in Sydney and came under the care of her former surgeon Dr Brighton.

27. The plaintiff said that she was given physiotherapy at the Hospital for Special Surgery which was very difficult at first and very painful. She said she was given painkillers including Endone which took the edge off the pain and she was in due course discharged on 5 August 2016: T39.2. At this time she was using crutches and also needed a walker.

28. The plaintiff gave evidence that she continued to go to the Hospital for Special Surgery for physiotherapy and hydrotherapy. She stated that she was on crutches or using a walker for about three to four months and in due course moved from crutches to the use of a walking stick which she still frequently uses to give her stability.

8. The plaintiff stated that she continued with physiotherapy and by December 2016 was able to get around without crutches but was walking with the walking trolley in her house until January/February 2017: T40.42. The plaintiff stated that as at December 2016 she still had pain at the fracture site and down the femur with pins and needles on the inside of her right leg. She also stated that the pain in her back which she had prior to the accident became worse two weeks after the accident and soon developed into very intense pain particularly if she was standing for more than 10 or 15 minutes: T41.20.

9. The plaintiff gave evidence that up to December 2016 she did not attend work and did no work at home: T41.23-.28. She stated that she needed assistance to get dressed and even after she was placed on crutches she attempted to undertake work including home duties but it was too difficult with the pain: T41.38. A bed was moved downstairs at her house so that she did not have to go up the stairs to sleep.

10. The plaintiff gave evidence about her mood after the accident. She said that she was very embarrassed at the nature of the accident being hit by a mobility scooter and felt depressed and lost interest in her work. She said she had not returned to work by December 2016 as she could not go up the stairs to the administration part at work and could not concentrate. She was also concerned about being a burden to the other family members at work. She said that the depression arose from feeling “hopeless” at not being able to get over the accident: T42.44. She said prior to the accident she was always very active and could not be so afterwards even though she was trying to get better through physiotherapy. At this time the plaintiff gave evidence that she was taking Endone and Panadol Osteo as well as undertaking hydrotherapy which assisted her: T43.15.

11. The plaintiff said that she got out and was able to drive and went shopping. She also said that her husband “made her go to work” as he was worried about her but she did little at work: T43.42.

12. The plaintiff said that in the first half of 2017 her pain was there “all the time” and she had difficulties sleeping, sitting or standing for long periods: T44.28-.36. She said that her leg ached and she had pins and needles on the inside of her right leg. She continued taking Endone in 2017.

13. The plaintiff gave evidence that in 2016 there were significant changes in the arrangements in the family company. A problem arose because a major subcontractor went into liquidation and the liquidator demanded the return of significant payments which had been made to the family company. For reasons which were not fully explained by her, the plaintiff said that this led to the family company stopping manufacturing the washing machines in Australia and it began importing machines for sale. The plaintiff said that she was not involved in these changes as she was not interested in the work. Having regard to these extensive difficulties, another company was incorporated which was controlled by her son Patrick. This company was named Speedy Wash (later shown to be Global Wash Pty Ltd). The plaintiff gave evidence that she was employed by Speedy Wash and was paid for two days work per week even though she did not undertake work. She said that she understood that she was being paid for the holidays which she had accrued with the first company, Fleet Wash.

14. At this time the family home in Glenwood was sold although she was not sure whether one of the reasons for the sale was the debts owed by the company. She stated that she could not deal with the large two storey house at that time because of its size and the fact that it had stairs. She said that she could not manage with the house as it was “too painful”: T47.23.

15. The plaintiff confirmed that she continued to retain the same cleaner after the accident. She denied undertaking any cleaning after the accident, although she said that she attempted to do so (T47.36) but she could not bear the pain in the top of her leg and considerable back pain. The plaintiff said that she stopped cooking at this stage and did not do any for a long time. The family Sunday get-togethers ceased but on occasion the family was invited for afternoon tea rather than dinner. The plaintiff said that she prepared a number of meals but her husband cooked them: T48.27. The plaintiff said that at this time she could not undertake cleaning work at home as she was disinterested: T48.45.

16. The plaintiff gave evidence that she has had two general practitioners since the accident being Dr Ali and Dr Thomas. Her first general practitioner was Dr Ali but she could no longer go to him because of difficulties in access at the Castle Hill Medical Centre where Dr Ali worked. She moved to Dr Thomas who was at the Norwest Medical Centre. The plaintiff agreed that in May 2018 she was referred by Dr Thomas to a pain specialist, Dr Ramachandran. The plaintiff said she attended Dr Ramachandran on about three occasions and he did little to assist with her pain but prescribed an antidepressant, Cymbalta, for her.

17. The plaintiff also gave evidence that she was referred to a psychologist Ms Hinz who she saw on about six occasions. She said that this helped her “a little bit” but the psychologist moved to another area and the consultations did not really improve her depression. The plaintiff described the symptoms of her depression as feeling very lonely, wanting to be by herself and not talking to people. She said that her relationship with her husband remained good and he went to work most days although he helped at home on many Fridays by keeping her company and doing any domestic duties required around the house: T51.36.

18. In relation to motor vehicle travel, the plaintiff said she could be in a car for a maximum of three hours but only drove locally. She said she had problems sleeping and transferring from a chair where she ensured that she put the pressure on her left uninjured leg.

19. The plaintiff was asked whether she intended going back to work for her family. She said she did not know but she would like to: T52.45. She said that she regarded a return to work as placing her “under their gaze all the time”.

20. The plaintiff was asked further questions about whether she could do some clerical work at home. She said she did not believe she could as some duties were now automated: T53.16. She also said that there would be too many papers to be brought home to look after debtors and creditors but that she could do it if the material was brought home: T53.27. She said it was a “big question” whether she could concentrate and sit to do work: T53.30.

21. In relation to meal preparation, the plaintiff said that she did not cook meals much but merely prepared some meals by sitting on a stool: T54.23. Although her family had arranged for prepared meals to be delivered in the last week or so, prior to that the family delivered meals for herself and her husband which required a lot of work from family members who work fulltime. Otherwise she said that she and her husband went out to dinner or bought takeaway food.

22. In relation to the cost of various treatments and medicines, the plaintiff said she went about once a week to the hydrotherapy pool at Castle Hill which cost $12 on entry and $160 a visit if a physiotherapist was also present. In relation to painkillers, the plaintiff still took Endone but did not use it unless she had to. She gave evidence that it helped her to get to sleep and to go out and about including shopping. The plaintiff stated that she also took Panadol Osteo and Cymbalta which provided her with a lift. She said that the Cymbalta did not assist her motivation or confidence.

23. The plaintiff stated that she now felt unsafe in a shopping centre. She said she was embarrassed by the accident, as she had never heard of anyone being hit by a mobility scooter before. The plaintiff gave evidence that she had contemplated “doing something silly” which I took to be self-harm in the first 12 months after the accident but not since, but felt guilt in relation to not being able to assist in the family business: T57.36.

24. The plaintiff was subject to an extensive cross-examination by senior counsel for the defendant. Initially, that cross-examination focused on the plaintiff's medical conditions prior to the accident.

25. The plaintiff agreed that she had a right total knee replacement prior to the 2016 accident. She could not recall when this occurred in 2010. The plaintiff confirmed that in July 2010 she was suffering from back pain and knee pain. The plaintiff was challenged in relation to her evidence in chief that after the right total knee replacement that things had settled down quickly and she had not had ongoing extensive problems. It was put to the plaintiff that some eight months later in February 2011 she was referred by her general practitioner to Dr Brighton. She agreed with this and agreed that she had complained about problems including continued soreness and swelling in the right knee and catching of the knee joint. The plaintiff stated that the knee replacement was fine but that a chipped bone was causing a catching of the knee joint. She stated that she was advised by Dr Brighton to leave the matter and it would remedy itself in due course and there was nothing he could do. The plaintiff said that in due course the swelling went down and the catching of the knee only occurred for a few months and she denied that there was any suggestion to her of a need for a further knee replacement at that time. She said Dr Brighton had told her that the knee replacement would last 10 years, which she agreed would be coming up for replacement now: T61.25.

26. The plaintiff also agreed that she had a total left shoulder replacement after the fall and that she had also had problems with her left knee. She agreed that she told Dr Brighton in December 2014 that she had problems with her left groin, left buttock and left knee from time to time. However, the plaintiff gave evidence that the problems with her left knee had cleared up and she had no problems with stairs because of it: T62.15.

27. It was put to the plaintiff that she told Dr Ali in April 2014 that she had pain in the right lower back and the right outer thigh and buttock with tenderness in both hip joints. The plaintiff agreed with this and said that it was due to arthritis. She said she had no problems with the right hip prior to the accident in that it gave her no restrictions and she could continue with her work. The plaintiff said that it was a completely different pain then to the pain she now had which was sharp with her right hip: T62.39.

28. The plaintiff agreed that in May 2014 as a result of right hip pain she was prescribed Mobic. While accepting that there was quite a bit of pain, the plaintiff said she had no problems working or negotiating stairs. She also accepted that in August 2014 she was taking Mobic and Panadol Osteo for pain but not together. She said the Panadol Osteo was for arthritis and she only took the Mobic when the pain was bad. The plaintiff agreed that she had discussed pain in both hips with doctors prior to the accident and said that it was trochanteric bursitis with the right leg worse than the left. She agreed that it affected the outer side of her hip: T67.4. The plaintiff also accepted that in June 2014 she was given an injection for bursitis in her right hip which provided her with some initial relief although the pain continued: T67.29.

29. The plaintiff accepted that in December 2014 she was referred by Dr Ali to Dr Brighton because of increased pain in the hip region: T67.37. She also agreed that she had a further injection for the pain in her left hip in October 2014. The plaintiff said that she could not recall pain in her left knee at this time.

30. The plaintiff also agreed that in November 2014 she was complaining to Dr Ali in relation to lower back pain, pain radiating to the right thigh, right groin pain and right knee pain: T68.16. The plaintiff said that the bursitis was causing it and she had four or five injections and it cleared up: T68.24.

31. It was put to the plaintiff that Dr Ali arranged for an x-ray in December 2014 which showed a stress type fracture in the right femur shaft. The plaintiff said that she remembered the x-ray but not the results but agreed that she had had problems with her right leg due to arthritis but in the hip area: T68.35. The plaintiff said that in due course these problems had been dealt with.

32. The plaintiff confirmed her evidence in chief that she had suffered no other falls other than the fall where she had hurt her shoulder and could not recall telling Dr Ali that she had had a fall shortly prior to June 2015 with Mobic not helping her: T69.15.

33. It was put to the plaintiff that she had problems in October 2015 with her left shoulder, left hip, right knee and lower back to which she agreed. The plaintiff said her left shoulder occasionally ached but there was no real problem with her right knee: T70.2. She also said that despite pain in various areas she was still able to work five days per week: T70.8. She denied that she had a lot of health problems at this time. She conceded that she occasionally had an ache in the muscle in her left shoulder and the outer arm as at March 2016.

34. It was put to the plaintiff that she had pain from her neck in early 2016. The plaintiff agreed with this and said that she was referred for physiotherapy: T71.12. She also accepted that she was prescribed Panadeine Forte for pain in her neck. However, she denied that it affected her work and said that her husband bought a special chair for her so that she was able to cope at work: T71.42.

35. The plaintiff could not recall telling Dr Ali in May 2016 that she had a fall three months earlier but confirmed that she had left neck pain and left upper arm pain at around this time and the neck pain continued all day and was relieved by lying down when she got home from work. She confirmed that the neck pain was described by her as being “10 out of 10” and that there was not complete night-time relief from taking Panadol and Panadeine Forte. She accepted that the neck pain at this time was “pretty bad” but said that her work was not affected by it and if necessary she could lie down on the couch at the office: T72.37-T74.15. In summary, the plaintiff accepted that she had neck pain at this time on a daily basis, it was described by her as being 3 out of 10 in the morning and at night it was described by her as being 10 out of 10 and it was unrelieved by taking Panadeine Forte: T74. She agreed that this was her position about six weeks prior to the accident but asserted that it did not affect her capacity to undertake her work and she went to work every day: T74.50.

36. The plaintiff was asked questions about her pay arrangements. She denied that there was a loose family arrangement in relation to her pay. She accepted that the second company run by her son, Speedy Wash (later established to be Global Wash Pty Ltd trading as Speedy Wash), paid her for her holiday entitlements earned while she was working for the first family company Fleet Wash. She also agreed that she had worked for Fleet Wash up until July 2016 and was then employed by Speedy Wash. She denied that the fact it was a family business allowed her family members to “manipulate” her pay. She said that in the financial year ending 30 June 2016 she had worked for the full year. She said her income varied as she and her husband decided that they would have a reduction in their salary to assist in the payments that were necessary to the liquidator of the subcontractor. She said that the amount in question was about $800,000. This differed to evidence later given by her son, Patrick Whitton. She agreed that in March 2017, Speedy Wash was established under the control of her son and that she and her husband work for the son’s new company. She also accepted that she had signed an employment contract with her son’s company for two days per week. She said that her husband pushed her to work but she was not going into work at this time. It was put to the plaintiff that the contract signed provided for her to undertake the work at home but the plaintiff said that she did not know this as she never read the contract: T79.13. She asserted that the job was set up for her so that she could work from home. However, the plaintiff said that she was not “interested” in working due to her depression: T79.44.

37. It was put to the plaintiff that she never told the defendant’s medico-legal expert, Dr Harvey, of the neck problems which she had in 2016 but was able to tell him of the neck problems in 2014. The plaintiff was not aware whether she had but said that she may not have been asked by him. She agreed that she told Dr Harvey that she could not go to work as she could not go upstairs but said that while she could do the work at home she was not interested in it as she had problems due to her depression: T80.1; T80.11; T81.27.

38. The plaintiff was then asked a number of questions about the undertaking of domestic duties by her and what she told two occupational therapists who attended her house for a review. The plaintiff agreed that both occupational therapists had inspected her house and asked her about domestic duties performed by her before and after the accident. It was put to the plaintiff that she never told occupational therapist Ms Memon that she had a cleaner prior to the accident. The plaintiff denied this and said that she had told both occupational therapists she had a cleaner prior to the accident as she did not have time to undertake cleaning duties: T82.40.

39. It was put to the plaintiff that she told occupational therapist Ms Walcot that prior to the accident she did the grocery shopping whilst her husband waited at the shops and then he helped lift and carry the grocery shopping. She confirmed this was accurate: T83.6. It was put to her that she told Ms Walcot that after the accident her husband then did the shopping alone for three months. It was suggested to the plaintiff that the task then returned to the division of grocery shopping which had existed prior to the accident. The plaintiff denied this: T83.17; T84.6. The plaintiff said that her husband would not let her do the grocery shopping on her own and the only shopping she did was simply walking around a shopping centre usually with a grandchild.

40. In relation to meals, the plaintiff agreed that prior to the accident she prepared six meals per week. After the accident, the plaintiff said that she did no cooking for six months after discharge from hospital and in this time her husband cooked or her daughter prepared meals. She agreed that now meals were divided between her preparing them (three nights per week) and eating out or getting take away on other occasions. In relation to cleaning and general housework, the plaintiff said that she had a cleaner attend for three to five hours per week on Thursday prior to the accident as she did not have time to undertake cleaning. She gave evidence that after the accident she had a cleaner for between three and four hours a day undertaking the same cleaning duties: T85.10-.39.

41. It was put to the plaintiff that she had told Ms Walcot that prior to the accident she used the washing line for washing unless it was urgent when she would use the dryer. The plaintiff denied this and said that she never used the line prior to the accident because she had difficulty hanging out the washing: T86.4. She agreed that she told Ms Walcot that after the accident her husband did the laundry for six months and she placed it in the dryer. She also agreed that she had an ironing lady undertake the ironing both before and after the accident. The plaintiff agreed that both before and after the accident either her husband or her son attended to gardening and outside duties.

8. The plaintiff agreed that her current house was now half the size of the old house and that the cleaner could do the task in less time: T86.33.

9. In relation to work duties, the plaintiff said that payroll tasks were now more computerised, she could do the invoice work on the computer including at home but she was not able to do so as she was “no longer interested”: T87.17.

10. The plaintiff denied having continuing neck problems, agreed that she had continued right hip problems and denied that she had problems with her left hip or right knee: T87.45-.14. She agreed that she continued to have back problems and could not lift her left arm above the shoulder: T87. She denied that the limitations with the left shoulder prior to the accident caused any restrictions in cooking.

11. The plaintiff was then extensively cross-examined in relation to the circumstances of the accident of 17 July 2016. The plaintiff agreed with the suggestion that she came down the corridor from the toilets, took a left hand turn and did not see the mobility scooter until she was lying on her back after it had struck her. The plaintiff denied, after being shown the photograph which became Exhibit 1, that just as she reached the end of the corridor before turning left, the mobility scooter was within her line of sight: T91.9. She also denied that she did not look to her right before proceeding out into the thoroughfare of the shopping centre. She denied that if she had made the “slightest glance” to the right that she would have seen the scooter: T92.31; see T92-T99.

12. In answer to a question from the court, the plaintiff said that she had an actual recollection of turning her head slightly to the right to look and stated that she did not see the mobility scooter: T98.44-T99.15. She denied that if she had looked to her right that she must have been able to see the scooter from the position shown in the photo which is Exhibit 1. The plaintiff said that at the time of the photograph which is Exhibit 2 she had already looked to her right before proceeding to her left. The plaintiff agreed that she could have stopped or stayed on the left-hand side of the thoroughfare after turning left but did not do so: T96.1-.9. The plaintiff claimed that she could not see the driver or the mobility scooter at any time.

13. It was put to the plaintiff that the hoarding on the shop to her right made sure that the scooter was more in the centre of the thoroughfare. The plaintiff denied this. The plaintiff also denied that the presence of the hoarding around the shop actually helped her in emerging from the corridor as it moved the scooter further out into the main thoroughfare: T99.46. In particular, the plaintiff denied that the presence of the shop hoarding to her right gave her a better and not a worse view of oncoming traffic: T103.6. In answer to the suggestion that the hoarding gave the plaintiff more time to see the approaching scooter, the plaintiff said that she would still have been run down by the scooter because the placement of the hoarding was not safe. The plaintiff again denied that the presence of the hoarding gave her more visibility when emerging from the corridor. The plaintiff denied that the hoarding did not obstruct her vision.

14. The plaintiff was then asked some questions about three photographs which became Exhibits A and B in the proceedings (previously MFI 1 and 2). In relation to the first photograph in Exhibit B, the plaintiff accepted that the hoarding in front of the shop forced the driver of the mobility scooter to travel further out from the shop front. The plaintiff was then asked a number of questions about the second photograph in Exhibit B. It was put to the plaintiff that if someone turned right into the main thoroughfare near the hoarding that there would be a blind turn to the right. The plaintiff initially did not understand the line of questioning and asserted that such a person would have a better view of the thoroughfare than she had because they would be looking in the direction where they would be going next and would see oncoming traffic. She also denied the suggestion that if the hoarding was not there that the visibility would be the same. After further questioning, the plaintiff accepted that there was a blind corner for a person turning right with the hoarding at the shop but denied that if there was no hoarding there would essentially also be a blind corner: T123.46; T124.8.

15. The plaintiff was then asked a number of questions about the pay which she received from the family companies. She denied the suggestion that her pay was changed and adapted when required because she worked for family companies. The plaintiff was then shown two PAYG Payment Summaries which became Exhibit 4 in the proceedings for Fleet Wash Industrial Systems Pty Ltd which showed different amounts of pay for her for the year ending 30 June 2017. The plaintiff could not explain the difference and said she was not doing the accounts for Fleet Wash at this time. The plaintiff was then asked a number of questions about her work for a new family company which traded as Speedy Wash. The plaintiff confirmed that she signed an offer of employment from Global Wash Pty Ltd trading as Speedy Wash Australia on 3 April 2017. This became Exhibit 5 in the proceedings. The plaintiff said that her employment was transferred over to Speedy Wash. Initially the plaintiff said that she had not done any work since the accident and never went back to work. She then altered her evidence slightly and said that although she did go back to the work premises after the accident she did very little except answering phones on a few occasions. The plaintiff accepted that she was paid a wage from Global Wash even though she really did not do the work for it. The plaintiff confirmed again that she was not responsible for the accounts for the company past the date of the accident and had not looked at a payslip in relation to her since the date of the accident.

16. The plaintiff confirmed that she had been employed by Global Wash from April 2017 and continued to be employed by it. However, she said that she had not worked at least two days per week since April 2017 in accordance with the contract. The plaintiff said that often she attended the work premises of the family company for a couple of days per week but found that she could not work and undertook very limited activities. When she did turn up for work the plaintiff confirmed that she was able to get up the stairs to the upstairs office but with some difficulty. The plaintiff said that her husband urged her to go into work as she needed to get out of the house and not work at home. She stated that while she often went in two days a week and it took a long time for her to climb the stairs that she was not able to do the work including basic book work two days a week as she found she was depressed. She denied that this was due to age factors and not due to the fact that she was disinterested due to depression.

17. The plaintiff was then asked a number of questions commencing with the suggestion that she had many physical ailments which she denied. When it was put to her that she had a serious neck problem three weeks before the accident, the plaintiff said that was many years ago and she was very busy at the time at work and in organising family matters. She then stated that she actually threw out the Mobic which she had been prescribed for her neck pain. She said she did not cut back on her work duties at this time even though she was complaining of daily neck pain at a level of three out of ten extending to ten out of ten by the end of the day which was unrelieved by the taking of Panadeine Forte.

18. On further questioning, the plaintiff confirmed that she did have two falls prior to the accident which she had not recalled on the first day of her oral evidence: T138.18.

19. The plaintiff was asked about a number of medical entries in consultation notes including one that suggested that she had said as at 20 December 2016 that she had long-term pain in her left shoulder. The plaintiff said that she had never had long-term pain with her left shoulder after the shoulder replacement. The plaintiff confirmed that she was taking Endone but not for her left shoulder but for arthritis problems and the bursitis in her leg. She also agreed that she had had some back problems prior to the accident.

20. It was put to the plaintiff that in March 2017 she said to her general practitioner that she had arthritis in the cervical spine which gave rise to pain and restrictions of movement. She confirmed this and said that it started in the lower back and travelled up to her neck. She said she did not have any ongoing problems with her neck as at the time of the accident.

21. The plaintiff confirmed that the pain which was ongoing from the accident was pain in the upper part of her right leg which went down the leg and included pins and needles on the inside of her right leg. She said that pain and restrictions prevented her doing activities. She denied that the matters which prevented her undertaking activities included problems from prior to the accident including pain in the left shoulder, arthritis, neck pain, back pain and bursitis in her legs. The plaintiff said that despite problems and her age she had good physical condition at the time of the accident. She also denied that the combination of the various ailments which she had prior to the accident had led to the restrictions which she claimed she currently had: T141.23-T145.37.

22. In re-examination, the plaintiff confirmed that prior to her consultation with Dr Ali in May 2016 six weeks before the accident she had suffered from neck pain for the previous three months. She also agreed that she had suffered from a fall. Despite these she said that she continued to work at her job and occasionally had to lie down and was given medication for the pain. The only need for regular treatment was to go to Dr Ali for her diabetes medication. She also stated that in June 2016 Dr Ali ceased or cancelled the prescription for pain medication for her neck as it was no longer needed and she had no ongoing neck problems after this time. She stated that as at the date of the accident on 17 July 2016 she was no longer taking Panadeine Forte for her neck. She also confirmed that Dr Ali's practice was the only practice prescribing medication to her at the time of the accident.

23. In relation to the report of Ms Walcot, the occupational therapist, the plaintiff stated that prior to the accident she prepared six meals per week and on Sundays cooked for between 30 and 40 family members and cleaned up afterwards. After the accident, the plaintiff said that she could not recall what she told Ms Walcot in relation to cooking but she said that she only prepared the meals and her husband cooked them. She also confirmed that she did not tell Ms Walcot that she had got back to preparing large family dinners on a Sunday. She said she had not undertaken the task since the accident.

24. The plaintiff Mrs Whitton impressed the court as essentially an honest and straightforward witness who was doing her best to answer questions truthfully. On occasions she found the questions asked of her difficult to follow. However, it is clear that the plaintiff holds the defendant to blame for her accident due to the visibility at the exit near the amenities corridor being, in her view, limited at the time. Often, the plaintiff had to be asked a large number of questions before she made concessions. Nevertheless, generally I accept the evidence of the plaintiff and that she is a witness of truth. I make more comments on the plaintiff's evidence including in relation to specific aspects further below.

Oral evidence of Patrick Whitton

80. Oral evidence was given by Mr Patrick Whitton who is the youngest son of the plaintiff. Mr Whitton gave evidence of his extensive commercial experience and the fact that he came to work in his father's company in 2007. Mr Whitton stated that he was the managing director of Global Wash Pty Ltd trading as Speedy Wash Australia, which was the company which ran the current family business. The company had the distribution rights in relation to an Italian product which was a truck washing machine sold under the brand of Speedy Wash and made by an Italian business called Bitimec. Global Wash Pty Ltd had run the family's business since 2017. Prior to this, the family business was run by Fleet Wash Industrial Systems Pty Ltd. Prior to 2017, Fleet Wash had designed and manufactured and installed truck washing machines for the resources sector including using the Bitimec washing product.

81. Mr Whitton gave evidence in relation to the company’s business and premises from 2007. He agreed that from his commencement with the company Fleet Wash, his mother had been working fulltime and he was aware that she had been working fulltime prior to his commencement in 2007. Mr Whitton said that the plaintiff, his mother, undertook office administration, accounts, answering the phones and managing staff. He said his father undertook accounting duties as he was a qualified accountant. As at 2007, Mr Whitton said that his mother worked between 9am to 5pm five days per week but undertook work as needed outside these hours as it was a family company. He said he quite often saw her working on company matters at home. Mr Whitton confirmed that the plaintiff continued working for the family business fulltime until the accident.

82. Other than changes to the business premises and the size of the business, Mr Whitton denied that there were changes to the family business from 2007 until the date of the accident. In this period, the business had grown and moved four times, with each premises having a sales and warehouse function with the office for the company being located upstairs at each business premises. Mr Whitton gave evidence that in 2017 the company's premises moved from Seven Hills to Riverstone and the new premises had an office upstairs with about 17 to 20 stairs with a slight landing halfway up and a balustrade on each side of the stairs: T153.34.

83. Mr Whitton was then asked about his mother's physical problems prior to the accident in 2016. He confirmed that she had a right total knee replacement in 2010 and a left total shoulder replacement with only a few weeks off work and with her continuing to work on office matters from home while she recuperated. From his observations, the plaintiff recovered from both operations and he noted no limitations in his mother's role at work. He also did not notice other limitations outside work. Prior to the accident, Mr Whitton said that he saw his mother at work and otherwise almost daily and with family events also on the weekend. He confirmed the plaintiff's evidence that there was a large family get-together each Sunday and a family dinner occurred. He said that the plaintiff prepared the dinner with everyone assisting to clean up afterwards.

84. Prior to the accident, Mr Whitton said that his mother did not complain to him in relation to pain on the left of her neck. He also said that prior to the accident the plaintiff did not appear to suffer from depression or anxiety. He described the plaintiff as a “joyous person” who was happy, proud and confident and spent considerable time with her grandchildren. In relation to her work in the family business, Mr Whitton said the plaintiff worked as needed and was diligent prior to the accident. He said that there was no discussion about the plaintiff retiring and she appeared to love her work.

85. Mr Whitton then gave evidence about attending the defendant's shopping centre at Woy Woy on 22 July 2016, several days after the accident, with his father when film and photographs were taken. He described the purpose of the visit as to understand what had happened to the plaintiff in the accident. Mr Whitton gave evidence in relation to the taking of two videos which became Exhibits C and D in the proceedings. He also gave evidence in relation to the photographs which became Exhibits A and B in the proceedings which were taken at that time. Mr Whitton said that the videos and the photographs were taken from an iPhone. Mr Whitton said that when he was at the shopping plaza on 22 July 2016, he saw no signs alerting patrons to the possibility of mobility scooters being used in the shopping centre or signs directed to how the drivers of mobility scooters should drive their scooters. He also said that he did not see any convex mirrors located in the shopping centre.

86. Mr Whitton then gave evidence about finding out about the accident and seeing his mother on the day of the accident and soon after. Mr Whitton said he was informed of the accident on the day of the accident and almost immediately travelled to see his mother at Gosford Hospital. He said she was in the emergency ward in her own room and described her as being pale, unresponsive and looking asleep. He stayed for several hours and when she woke up she was groggy and immediately said she was in significant pain. Mr Whitton said that the plaintiff was transferred to the Hospital for Special Surgery in Sydney where the plaintiff had a few weeks of rehabilitation. He said he saw her either daily or every second day. He noticed from his observations that the plaintiff was obviously in pain as there was moaning, occasional crying and grimacing. He agreed that after a few weeks the plaintiff went home. He said his family members had moved the contents of his mother's bedroom downstairs while she was recovering. He said there was a slight improvement in her condition after four to five weeks but that her mood had changed and she was not the same person. He said she was withdrawn, sad and did not talk in relation to her grandchildren. He said these observations of her mood continued to the present day. He also noted that when she did attend work she appeared very sad, withdrawn and was silent.

87. Mr Whitton confirmed that between the date of the accident and December 2016 the plaintiff did not work in the family business. He said that about this time, having regard to the fact that his father needed to spend more time with his mother, the plaintiff, there was a need for younger family members to take control of the company and he volunteered to do this. Mr Whitton also gave evidence that there was a problem with a company contract at this time and administrators or liquidators of a company which had engaged Fleet Wash sought to claim the return of the contractual payments and commenced legal proceedings against Fleet Wash. Although this matter was settled, Mr Whitton said the proceedings had to be disclosed to customers and this had a significant deleterious effect on business. At that time, Mr Whitton said that Fleet Wash decided to change its business model and only to design and supply equipment and not install equipment at mine sites. Also at this time it was decided for Fleet Wash not to continue in business. Mr Whitton said that he then took control of the business as Managing Director of Global Wash Pty Ltd which sold Speedy Wash products. The family members who were employees of Fleet Wash then became employees of Global Wash. The family members entered into contracts including the plaintiff. Mr Whitton gave evidence that he was the only director and shareholder of Global Wash. He also confirmed that Global Wash made an offer of employment to his mother, the plaintiff, as the family had agreed that it was important for the plaintiff's recovery to get her back to work. He also said that the plaintiff was important to the company.

88. He said that initially the plaintiff's reaction was that she did not want to come back to work. A lot of pressure was put on her by family members to return as the belief was held that she needed to do so for her own well-being. He said the plaintiff at this time regarded herself as useless and she did not want to be a problem for family members. The offer of employment was signed by the plaintiff at this time for her to work two days per week. While it was regarded as preferable for the plaintiff to do her work at the work premises, the contract provided for the work to be done at home. He said it was recognised that the stairs at work posed a problem for the plaintiff but it was necessary to have her come into the premises, as she was not motivated to work from home. He said there was no motivation problem with the plaintiff prior to the accident. Mr Whitton said the plaintiff had attended the premises on and off from the end of 2017 to today. Sometimes she came in two days per week. She answered phones and occasionally proofread letters and documents but she took a very lengthy time to do straightforward tasks and was not efficient. She also on occasions assisted in a family jewellery business. Mostly, the plaintiff came to work with Mr Whitton senior, her husband. Ascending the stairs was a slow process with the plaintiff taking one of them at a time and it could take her seven to ten minutes to go up or down the stairs. On average, Mr Whitton assessed that the plaintiff undertook less than four to five hours per week of substantial work for Global Wash.

80. Mr Whitton gave evidence that when the plaintiff started working for Global Wash she was paid fulltime leave entitlements from her previous duties at Fleet Wash although she was not working at the time. Then she was paid on a part-time basis by Global Wash. Mr Whitton gave evidence that Global Wash was still trading with a turnover of approximately $1.9 million in 2017 to 2018 and a substantial gross profit. He stated that if his mother had not been injured in 2016 he was of the opinion that his business could afford to have retained her on a full-time basis and he would have requested her to work on that basis.

81. In cross-examination, it was put to Mr Whitton that the rearrangement of the companies’ affairs between Fleet Wash and Global Wash in 2017 was done because Mr Whitton senior was effectively retiring. Patrick Whitton denied this and said the business was run through Global Wash because he wanted to develop the business himself from a product which he had developed. He also said the design of the family company changed from design/construct and installation to merely design/construct and supply. Mr Whitton agreed that Global Wash now ran the business which had previously been undertaken by Fleet Wash.

82. Mr Whitton was then asked some questions by senior counsel for the defendant in relation to the plaintiff’s work after the accident. Mr Whitton said that in April 2017 there was a formal offer of employment by Global Wash to the plaintiff which she accepted which had the aim to get her back to work. However, he said that his mother did not physically turn up to work as required under the contract. The obligation under the contract was to work two days per week from home but Mr Whitton senior was of the view that the plaintiff should come into work. He said that the plaintiff came into work when she could and there were no set times. This had continued from April 2017 to today. Mr Whitton confirmed that the plaintiff usually came in one or two days per week and did effectively four to five hours of paid work in that time. He could not be more specific as to the times when the plaintiff went to work.

83. Mr Whitton was asked questions in relation to the apparent payment from 30 March 2017 to 28 June 2017 to the plaintiff of $1,168 per week. He could not confirm this but accepted that payslips he was shown established that. When asked to clarify the payments he suggested talking to Mr Whitton senior. He denied that the invoices and other accounts documents involve payments to assist his mother in her case. He said his mother was paid money from the business as the family needed her to work so that she became mentally and physically strong.

84. Mr Whitton was then asked questions in relation to payments to the plaintiff from June 2017 to the end of December 2018. He agreed that the plaintiff was paid the gross sum of $384 per week in this period for working for the Speedy Wash business. He accepted that the payments involved paying the plaintiff for work she was not doing out of the business funds but said that she provided a service to the company when she could as she was injured. He denied that the accounts of the business were manipulated to suit the fact it was a family business and said there had been a formal offer of employment to the plaintiff. He said that the plaintiff was employed part-time and was doing her best to perform her functions having regard to her injuries. He agreed that the hours which the plaintiff worked could not be determined from the business records and the records also did not disclose when the plaintiff worked and did not work.

85. In relation to the payment fulltime by Global Wash to the plaintiff in 2017, Mr Whitton confirmed that Global Wash paid to the plaintiff her holiday entitlements which she had accrued at Fleet Wash. Whether the plaintiff was entitled to that, Mr Whitton said that that was what he did and he chose to do it. He agreed that the plaintiff did not provide any work to the family business after the accident until April 2017.

86. Mr Whitton confirmed that Global Wash was still paying the plaintiff, his mother, now in accordance with the April 2017 contract and would employ the plaintiff when she is able to work including offering her to work at home.

87. Mr Whitton was asked questions about his evidence of attending the shopping centre soon after the accident and not seeing any signs alerting shoppers to the presence of mobility scooters in the shopping centre. It was put to him that you did not need a sign to tell you that, which he disagreed with and said that there needed to be a safe environment. He also suggested that a barrier would have been a good idea to eliminate risk but did not provide details. He asserted that the hoarding that was present blocked the view of the plaintiff and the lady riding the scooter of each other. However, he accepted that he did not know what their views were at the time.

88. Mr Whitton was cross-examined in relation to his knowledge of the plaintiff’s injuries prior to the accident. The evidence essentially established that Mr Whitton was not aware of the plaintiff having any considerable problems with her right knee or left shoulder after the total replacements. In relation to the shoulder, he said the plaintiff made no ongoing complaints to him. He said he was not aware that she was limited in lifting her left arm above shoulder height as she appeared to him to get around perfectly. Mr Whitton was also not told by the plaintiff about problems with her hips but he was aware of back pain which he said had progressively got worse since the accident in 2016. He said he had heard the plaintiff had problems with her neck but did not know the detail of that. In particular, he said he was not aware of the plaintiff having any significant problems with her neck prior to the accident. He stated he was not aware of the plaintiff suffering severe neck pain in the three months prior to May 2016. He said he was also not aware that the plaintiff was taking Panadeine Forte for her neck at this time and it was not assisting her. He agreed that he did not know much about the plaintiff's medical issues both before and after the accident.

89. In re-examination, Mr Whitton confirmed that in the period between February 2016 and May 2016 his mother had attended work every day and was able to do her work professionally. He confirmed being aware that his father had bought a special chair for his mother to sit in in this period.

The oral evidence of Ms Basema Elmasri

99. Oral evidence was given by Ms Basema Elmasri, who is a solicitor with the plaintiff's solicitors, Turner Freeman, in Parramatta. Ms Elmasri gave evidence of attending the defendant’s shopping centre at Woy Woy on the first day of the trial and taking a number of photographs with an iPhone, nine of which became Exhibit E in the proceedings. Ms Elmasri gave evidence describing the view given in each of the photos and where she was standing. Ms Elmasri stated that the photographs were taken with an iPhone at her eyesight level.

The oral evidence of Mr Val Whitton

100. Oral evidence was given in the proceedings by Mr Val Whitton who is the husband of the plaintiff. Mr Whitton is an accountant by profession and is currently employed as the Commercial Manager of Global Wash Pty Ltd with responsibility for commercial matters including contractual arrangements.

101. At the time of the final hearing, Mr Whitton was 75 years of age and had been married to the plaintiff for over 55 years. After giving evidence of his employment history, Mr Whitton stated that he commenced in private practice as an accountant after 1971. Apart from some breaks where Mr Whitton ran a farm and then a hotel, he practised as an accountant before becoming employed by Fleet Wash. He gave evidence that the plaintiff, Mrs Whitton, had worked for him in his private practice undertaking administrative duties, the preparation of accounts and secretarial duties on a full-time basis.

102. In about 1995, Mr Whitton established Fleet Wash with his brother. The business started initially with hand washing cars and expanded into an automatic washing system for trucks. Mr Whitton gave evidence that the plaintiff became a full-time employee of Fleet Wash in 1995 and undertook secretarial duties, payroll duties, dealing with accounts and administration duties. He said her fulltime duties were fitted around family responsibilities. Mr Whitton emphasised that the plaintiff had a strong work ethic and he described her as a “go-getter” who worked right up to the end of each confinement with each of her children and went back to work soon after the birth of each child.

103. Mr Whitton gave evidence that the business of Fleet Wash was extremely busy up to the end of the 2015 financial year designing, building and installing heavy vehicle washing systems for the mining industry particularly large companies such as Rio Tinto and BHP. Up to the financial year ending 30 June 2015, Mr Whitton said that Fleet Wash for the previous several years had been turning over between approximately $3.5 and $6.8 million per year, although the taxable income after the payment of salaries was not large because the business did not have a high margin: T465.3.

104. Mr Whitton said that a problem arose in the business in the 2015-16 financial year as the liquidator of a contractor sought to make a claim in relation to an alleged preference payment to Fleet Wash. This resulted in proceedings in the Federal Court. Mr Whitton gave evidence that although the proceedings were ultimately settled for a very modest payment by Fleet Wash, there was a need in tender documents to disclose the litigation. He stated that this had a substantial detrimental effect on Fleet Wash’s business. Also at this time, the plaintiff’s accident occurred and the need to provide assistance to the plaintiff following her injury took up part of Mr Whitton's time. He therefore stated that a business decision was made for Fleet Wash to exit the supply and installation of washing systems to the mining industry. Thereafter, Fleet Wash ceased to trade, the assets of the company were sold to the employees (but not the plaintiff), thereafter Global Wash Pty Ltd ran the family business and part of the arrangement included Global Wash taking over the payment of the leave entitlements of the plaintiff which she had outstanding.

105. Mr Whitton said that throughout the period from 2016 to April 2017, Fleet Wash remained solvent and had a credit balance to its bank account. Mr Whitton said that at this time, due to the fact that the turnover of Fleet Wash was down, he and the plaintiff took a decision to take a pay cut so that the other employees were paid their normal wages. Mr Whitton stated that at the time of the restructure he was the only director and shareholder of Fleet Wash and his son Patrick became the director and shareholder of Global Wash. At the time of the restructure, Mr Whitton said that about $20,300 was owed to the plaintiff in leave entitlements. At this time Mr Whitton said the plaintiff was not strong enough mentally or physically to work.

106. Mr Whitton gave evidence that Global Wash was a profitable company. He said that whilst having a substantial turnover, Global Wash made no taxable profit in the year ending 30 June 2017. In the year ending 30 June 2018, Mr Whitton said that Global Wash had about $1.9 million in turnover with a gross profit of $633,000 and a taxable profit of about $6,000. For the year ending 30 June 2019, there had been growth in sales with a turnover of about $2.1 million. Mr Whitton gave evidence that Global Wash had approximately $275,000 in credit at its bank. He gave evidence that in his opinion if the plaintiff had not been injured, she would have remained employed fulltime at Fleet Wash and would be employed fulltime at Global Wash. He said the plaintiff was an invaluable employee, a hard worker and a “go-getter”. Even as at 2018 when Global Wash only had $6,000 taxable income, Mr Whitton said that the company could have forgone other expenditure, for example the purchase of new vehicles, in order to pay a salary to the plaintiff. As Global Wash was currently cash flow positive, Mr Whitton expressed the view that Global Wash would not have any difficulties taking on further employees if it so wished having regard to its financial position.

107. In relation to the position at Global Wash currently, Mr Whitton said it was a family business and that the various family members completed the work which the plaintiff had previously undertaken prior to the accident.

108. Mr Whitton was asked about the two PAYG payment summaries for the plaintiff for the year ending 30 June 2017 which became Exhibit 4 in the proceedings. Mr Whitton gave evidence that the computer generated typed version was incorrect and that the handwritten version showing gross payments to the plaintiff of $4,880 for the year ending 30 June 2017 from Fleet Wash was correct and represented payments to the plaintiff for July 2016. When the error was identified, there was an adjustment with the Australian Taxation Office in relation to the PAYG returns.

109. Mr Whitton then gave evidence in relation to his knowledge of the events of the day of the accident. His evidence was generally consistent with that of the plaintiff. He confirmed that he and the plaintiff had never been to the Deepwater Plaza Shopping Centre before. Mr Whitton stated that when he arrived at the accident site the plaintiff was writhing in agony and was in excessive pain. Mr Whitton stated that the plaintiff was in Gosford Hospital for three days before being transferred to the Norwest Hospital for Special Surgery where she remained for two weeks which included extensive physiotherapy before being discharged to home. Mr Whitton stated that the plaintiff when discharged was on crutches and had great trouble walking. He said that at home she was initially unable to do anything except feed herself. Her bedroom was relocated to the ground floor of the house. She also needed assistance to get dressed and with her shoes.

110. Mr Whitton gave evidence that there had been a total change in the plaintiff since the accident. He said the plaintiff had from his observation become heavily depressed with consistent pain which sometimes woke her at night. He said this continued to the present day.

111. Mr Whitton gave evidence that following the plaintiff’s discharge from hospital the plaintiff did no work in the business for three months. After that time, he strongly encouraged the plaintiff to come to work and she came to work at the business for about two to three days per week. He said the plaintiff did not want to continue to do any work and it was a challenge to get her to come to work. In relation to the two to three days per week where the plaintiff came to work following a period of three months after the discharge from hospital, Mr Whitton stated that the plaintiff answered the telephones, undertook reception duties, dealt with the processing of documents and did typing. He estimated the number of hours of work performed by the plaintiff as being one to two hours per day on the days she was there. Accordingly, the plaintiff worked between four and six hours per week.

112. Prior to the accident, Mr Whitton said that there had been discussions about retirement but that he and the plaintiff had made no active plans to retire and did not regard themselves as “retiring people”. He denied that there was any plan prior to the accident for him and the plaintiff to reduce their duties in the family company and for his son Patrick to take over the business. Mr Whitton said that two months before the accident he had commenced a Master of Engineering degree which he completed in September 2018. He said he would not have commenced this degree if he had any plans to retire.

113. Mr Whitton gave evidence that prior to the accident he and his wife lived in a two storey house. He said they always had a cleaner as the plaintiff worked fulltime. However, he gave evidence that not all the cleaning was done by the cleaner who attended weekly and undertook a weekly vacuuming, mopping, cleaning of the kitchen and the bathrooms. He said other cleaning duties which were done regularly were undertaken by the plaintiff and included cleaning up after grandchildren visited. Mr Whitton said that the plaintiff cooked all the meals. He said that the plaintiff cooked on Monday-Wednesday nights, on Thursday they ate out whilst shopping, on Friday they had takeaway food, on Saturday night they had a simple meal and on Sunday night they had a big family dinner. Mr Whitton said the plaintiff was primarily responsible for cooking and preparing the Sunday dinner with some assistance from daughters and daughters-in-law. He said the cleaning up done afterwards was mostly completed by himself with assistance from the plaintiff and his daughters and daughters-in-law.

114. In relation to the position after the accident, Mr Whitton said the plaintiff undertook no cleaning other than simple dusting like tasks: T488.11. He said the cleaner attended now for about three hours a week (although he conceded that the plaintiff would have a better knowledge of the time) and he did other cleaning for between four to six hours per week. In relation to cooking, Mr Whitton said that he cooked on Monday-Wednesday nights as the plaintiff could not stand up to do the cooking. He said she did some preparation. He stated that he cleaned up after the meals as this involved bending. He estimated undertaking at least two hours to do cooking and cleaning up on the three days per week when he cooked.

115. Mr Whitton said the plaintiff attended hydrotherapy weekly and he drove her due to difficulties with the parking. He said the hydrotherapy was of benefit to the plaintiff as it assisted her leg movement and he estimated that driving the plaintiff to the pool and taking her home took him about two hours on one day per week.

116. Mr Whitton gave evidence in relation to his limited knowledge of the plaintiff's health problems prior to the accident. He stated that the replacements of the right knee and left shoulder did not cause the plaintiff to stop work. In particular, Mr Whitton said he was not aware of the plaintiff having neck pain shortly before the accident. I very much got the impression that the plaintiff did not complain in relation to her health problems prior to the accident and accordingly, Mr Whitton had little knowledge of them. An example is that Mr Whitton was not aware of the plaintiff's inability prior to the accident to lift her left arm above shoulder height. In addition, Mr Whitton said the plaintiff was not troubled now by her right or left knees.

117. Mr Whitton stated that he was not aware of the plaintiff having falls other than the fall which led to her left shoulder replacement. In particular, he was not aware of a fall a few months before the accident or a fall in June 2015. In relation to problems with the plaintiff's right hip prior to the accident, Mr Whitton recalled her discussing her right hip with Dr Brighton and him saying that it did not need to be replaced but he said the plaintiff was in a better position to state what her problems were in her right hip prior to the accident. Mr Whitton was probably in error in this evidence and the consultation likely occurred after the accident. He could not recall any significant problems with the plaintiff's right hip prior to the accident. Mr Whitton said that he did not recall her having any problems with her left hip. He did not recall the plaintiff complaining of pain in her right hip prior to the accident.

118. Mr Whitton was asked further questions about the plaintiff's pay. He said she was not paid for her work which she undertook for Fleet Wash after the three month non-working period following her discharge from hospital. He said he regarded the work in this period as being good for the plaintiff’s mental condition. When the plaintiff came back to work for Global Wash trading as Speedy Wash Australia in April 2017, she was paid approximately $1,200 per week which consisted of two days’ work pay and three days’ payment for her holiday leave accrued for Fleet Wash. Exhibit 16 was a PAYG payment summary for the financial year ending 30 June 2017 showing that the plaintiff was paid $15,184 from 30 March 2017 to 30 June 2017 by Speedy Wash Australia.

363. In relation to the claim for ongoing consultations with her general practitioner, the plaintiff sees her general practitioner regularly for treatment of her Type II Diabetes. However, in my view there may be the need for further consultations to obtain prescriptions and referrals. I also think it likely that with the plaintiff's condition there will need possibly to be further radiological investigations and pain management therapy. Dr Harvey in his 19 March 2019 report, said it was reasonable for the plaintiff to see her own doctor every three to four weeks and states that it could be appropriate that the plaintiff is referred to a specialist in addiction medicine. He also expresses the opinion that the plaintiff would require continuing analgesics. On the whole of the evidence, I would allow an amount for some additional ongoing consultations with the plaintiff's general practitioner for management of her pain, radiological investigations and referral to a pain specialist in the amount of $6,000 which is slightly less than that claimed by the plaintiff.

364. Dr Harvey in his report dated 19 March 2019, expresses the opinion that the plaintiff’s hydrotherapy should be encouraged. The defendant does not dispute an amount of $12 for entry to the hydrotherapy pool but does dispute the claims for additional amounts if the plaintiff is accompanied by a physiotherapist or hydrotherapist. The plaintiff seeks an allowance based on 20 sessions per annum accompanied by a hydrotherapist or physiotherapist and 20 sessions per annum unaccompanied together with reasonable travelling expenses coming to $2,250 per annum which over five years would be $10,014. In my view, this is excessive. There was no evidence as to the amount of assistance the plaintiff actually obtained from a physiotherapist or hydrotherapist at the pool. I accept that some assistance from a physiotherapist or hydrotherapist at the hydrotherapy pool would be valuable initially. After obtaining instructions, the plaintiff could continue on the therapy by herself. I agree that an amount should be allowed for five years but would reduce it to an amount of $5,000 which allows for some initial guidance from a physiotherapist and hydrotherapist, entry to the pool for the plaintiff and some travel expenses.

365. In paragraphs 41 to 42 of their written submissions as to damages, counsel for the plaintiff seek an amount for ongoing psychological and psychiatric treatment and medication for four years. The defendant submits that the plaintiff has already obtained a referral to Ms Hinz and that it was not helpful. There is some evidence that the treatment with Ms Hinz, psychologist, ceased because she moved out of the area.

366. In her 10 October 2018 report, Dr Rastogi refers to the need for the plaintiff to take Cymbalta and additionally an antidepressant for a period of at least 12 to 24 months and there being a need for the plaintiff to have psychological and psychiatric treatment. Dr Samuell at page 11 of his later report, expresses the opinion that the plaintiff taking an antidepressant medication is appropriate, it is likely that she will require the antidepressant medication for a further 12 months and that it may be worthwhile the plaintiff seeing the psychologist for 8 to 10 sessions to assist with her adaptation and pain management.

367. As I have stated above, I accept the later opinion of Dr Samuell in relation to the need for psychological intervention. I prefer the opinion of Dr Rastogi, having seen the plaintiff give evidence and having regard to the extent and duration of her psychiatric condition as I have found, that the medication should continue for at least 12 to 24 months. I would not allow the cost of a psychiatrist as well as that is inconsistent with the improvement in the plaintiff's condition as referred to in Dr Samuell's report dated 13 April 2019 and his comments at page 11. Having regard to the uncertainties in relation to the plaintiff's condition and the need for antidepressant medication and psychological review, I would allow $12,000 using the figures on page 7 of Dr Rastogi’s report (Exhibit P Page 14).

368. Accordingly, the amount I allow for future out-of-pocket expenses is $23,000.

Damages for economic loss

372. I have found above that at the date of the accident the plaintiff had no intention of retiring. However, I have also found that the plaintiff had a number of medical problems in the period of just over two years prior to the accident as reflected in her general practitioner notes as well as a previous total left shoulder replacement and a total right knee replacement. Despite these, the plaintiff had continued working fulltime albeit with the assistance of a cleaner and an ironing lady to assist her with domestic duties.

373. Although the plaintiff stated that she had no intention of retiring at the time of the accident, and this was supported by the evidence of Mr Whitton on this issue, there are two matters which are significant:

1. The plaintiff's age at the time of the accident - 71 years; and

2. The plaintiff's medical history from 4 April 2014 to 29 June 2016 which I have discussed above.

374. I have also referred above to the fact that I generally prefer Dr Harvey's report to the reports of Dr New as Dr Harvey's report is more recent and more detailed and I have rejected Dr New’s finding of L5 radiculopathy. Dr Harvey was also provided with a more extensive medical history (compare Exhibit P page 13 to Exhibit P pages 33-34). I also note that Dr Harvey expresses the opinion in his report that the plaintiff had significant pre-existing right hip arthritis, restricted movement in the left shoulder and an obesity difficulty. Dr Harvey noted osteoarthritic change in the left hip which was likely to progress with the arthritis in the right hip. Dr Harvey describes the plaintiff as having “significant pre-existing conditions” including a serious obesity problem with Type II Diabetes and hypertension with bilateral hip osteo-arthritis and the pre-existing right total knee replacement which was giving the plaintiff some pain.

375. These matters are relevant to the requirement under s 13 of the CLA for the court to satisfy itself about any assumptions about future earning capacity or other events on which an award of damages is to be based, unless it accords with the claimant’s most likely future circumstances but for the injury as found by the court: see Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [110]-[115]; Gulic V Angelovski [2018] NSWCA 161 at [34]-[38].

376. I take into account that the plaintiff worked with her husband in a family business. I take into account that some of her children also worked in that business and that the plaintiff would want to continue her work association with her husband and the children. I take into account the fact that the plaintiff gave evidence, which I accept, that she loved her work. It is relevant that the plaintiff's husband is a driven person who had no intention of retiring. It seems that the family members worked in the business closely together.

377. However, the plaintiff's pre-existing medical conditions impact upon the likelihood of her continuing to work fulltime particularly with the substantial change in the company business in 2015-16.

378. It is clear that compensation for loss of earning capacity for a plaintiff is awarded because there is a diminution in the plaintiff's earning capacity which is or may be productive of financial loss. The plaintiff must prove the loss for which compensation is claimed: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80].

379. The defendant submits that I should allow a buffer for past and future economic loss of one year's earnings based on the 2016 tax return of $634 net per week totalling $32,968. The plaintiff divides the economic loss for various periods between 17 July 2016 to the present and then allows a buffer for the future.

380. I base my assessment of damages on the finding that the plaintiff had no intention of retiring at the time of the accident and that the injury took her out of the workforce for some considerable period of time. I also accept that Mr Whitton was wrong in his evidence that the plaintiff came back to work for some hours per week three months after she was discharged from hospital. That seems to be inconsistent with the plaintiff's evidence, which I accept, that she continued to use a walker after she got rid of her crutches until January or February 2017: T40.42. It is also consistent with the evidence of Patrick Whitton, which I accept, that the plaintiff did not do any work in the family business until beyond the end of 2016 (T168.15) until about April 2007 (T172.1-.28 and T173.27-.35).

381. The evidence establishes that due to the litigation involving the company that Fleet Wash had a significant decline in its business in the 2016 financial year. Mr and Mrs Whitton took a salary reduction so that other employees received their usual salary. This explains the reduction of the earnings for the year ended 30 June 2015 compared to the year ended 30 June 2016. There is no suggestion that the prospects of the family business improved until at least April/May 2017 when Global Wash commenced the new family business. Accordingly, I consider it likely that the plaintiff’s earnings would have continued at the reduced rate if the accident had not occurred. I accept the submissions of both parties that the appropriate weekly net amount is $634 per week based on the plaintiff's 2016 tax return. Accordingly, I allow the following amounts:

1. For the period from 17 July 2016 to 1 April 2017 I allow the amount claimed by the plaintiff of $23,458 being for 37 weeks at $634 per week;

2. In relation to the period from 2 April 2017 to 30 June 2017, I find that the plaintiff was paid for two days work per week but did not attend to do work on those days always. I accept the plaintiff's claim of $329 per week ($634 - $305 tax) for 13 weeks totalling $4,277;

3. For the period from 1 July 2017 to date the plaintiff claims an amount assessed at pay for five days a week being $792 net per week minus the $382 which she receives equalling $410 per week for 113 weeks amounting to $46,330. I would reduce this figure by 40% to allow for the real possibility of the plaintiff limiting her work or taking time off work for pre-existing medical conditions in the light of her age and the demands of her job. This would allow $27,798;

4. The amounts which I have referred to above total $55,533. This should be reduced by 15% for the usual allowance for vicissitudes. This arrives at a figure of $47,203.05 which I would allow for past loss of wages and past loss of earning capacity.

382. I accept the plaintiff's submission that in addition the plaintiff would be entitled for the loss of employer funded superannuation contributions at 11% of her net loss which equals $5,192.33.

383. The plaintiff claims an entitlement to a substantial buffer or cushion on the basis that had she not been injured she would still be working and would intend to work to the future. The plaintiff is now over 74 1/2 years old. The plaintiff seeks an allowance based on a loss of four years at $792 per week less 25% for higher vicissitudes equalling $112,622. The defendant has combined the amount for past and future loss of one year’s wages based on the 2016 tax return at $634 net per week of $32,968.

384. In my view, some allowance for the future should be allowed as a buffer. This is appropriate where the impact of an injury caused by negligence upon the plaintiff's loss of earning capacity is difficult to determine or involves uncertainties: Penrith City Council v Parkes [2004] NSWCA 201; Sretenovic v Reed [2009] NSWCA 280 at [79]-[81].

385. Having regard to the plaintiff's pre-existing problems, her age, her strong work ethic and the family nature of the business in my view it is appropriate to allow a buffer. However, the plaintiff’s age and pre-existing problems determine that it should not be very high. I allow the sum of $40,000.

Domestic assistance

386. There was considerable evidence in relation to the need for domestic assistance. The threshold in s 15(3) of the CLA must be satisfied by the plaintiff.

387. In relation to the plaintiff's psychiatric injury, Dr Rastogi asserts that the plaintiff would need assistance for household maintenance for at least 12 months and likely indefinitely (Exhibit P page 26). Dr Samuell states that the plaintiff has not required domestic assistance due to a psychiatric condition (Exhibit 14 page 13). Dr New states that the plaintiff would require assistance for domestic tasks and duties including shopping and cleaning (Exhibit P page 5). Dr Harvey noted that the plaintiff received a significant amount of domestic assistance before the accident and considered that with her reduced mobility it is reasonable that she would require one to two hours additional domestic assistance per week. In addition, he notes that the plaintiff would have required additional domestic assistance on her initial discharge from hospital (Exhibit P page 38).

388. The plaintiff gave evidence that she does some meal preparation but that her husband does the cooking and that she can do no other domestic activities which she leaves to her husband, the cleaner and the ironing lady.

389. Mr Whitton gave evidence that he does four to six hours of cleaning per week, six hours of cooking and associated washing up and tidying per week and two hours per week driving the plaintiff to and from her hydrotherapy.

390. Senior counsel for the plaintiff said that each of the occupational therapist reports could be criticised. In my view there is considerable force in that submission. Senior counsel for the defendant was also highly critical of a report of Ms Memon, the occupational therapist retained on behalf of the plaintiff to provide a report. The domestic duties assistance needs to date, set out by Ms Memon in her report (Exhibit P page 83) involve repetition as to cleaning, referred to childcare which was not claimed and mathematically did not correctly add up as 26.5 hours. The amount referred to is only 21.5 hours. The plaintiff did not press the equipment needs set out in paragraph 5.1 of Ms Memon's report (Exhibit P pages 81-82). It was also clear that Mr Whitton did garden and lawn maintenance so this would not be an appropriate claim in relation to the plaintiff. Further, Ms Memon does not break down the assistance needs into the various periods from when the plaintiff first was discharged from hospital. However, Ms Memon’s report does establish that there was a need for some domestic assistance. This is supported by the medical evidence.

391. In relation to Ms Walcott's report, it seems to be based on the plaintiff being on crutches for only four weeks post discharge. The plaintiff said at T39.37 that she was on crutches for three to four months and she used a walking trolley all the time in the house even after she got rid of her crutches until January or February 2017: T39.36-T40.46. She was using the walker because she felt unsteady on her feet and thought she might fall over: T40.45. The report is also inconsistent with Mr Whitton’s evidence which on this issue is likely to be more accurate than the plaintiff as to the assistance provided post- accident.

392. In my view, an allowance should be made for some meal preparation, necessary cleaning undertaken by Mr Whitton outside that done by the cleaner, assistance with the laundry, bed making and the changing of the linen. The grocery shopping appeared to involve a rearrangement of duties between Mr and Mrs Whitton. I accept the criticisms by Ms Walcott in her report in relation to the doubling up of the claims for general cleaning, garden/lawn maintenance and childcare by Ms Memon. In my view, there should not be a discount for the fact that Mr Whitton also benefited from some of the cleaning, bed making and cooking activities as he also lived in the house. The fact that needs may be the comingled needs of a husband and wife are no less the needs of the wife because they were in some cases mutual. What occurred in the present case goes beyond the mere rearrangement of domestic duties and was a wholesale alteration of the duties performed internally in the house: White v Benjamin [2015] NSWCA 75 at [61]-[66].

393. I also accept Mr Whitton's evidence that the plaintiff only undertakes light cleaning duties such as dusting and that the heavier duties are left to him. He referred to the plaintiff as having a high standard of neatness and cleanliness so some discount should be made for assistance to a reasonable standard.

394. In my view, having regard to the evidence of the plaintiff and Mr Whitton as well as the medical evidence, I would allow the following past domestic assistance:

1. Nine hours per week at $28.24 per hour from 7 August 2016 until early March 2017 equalling $254.16 per week. This essentially is the period after discharge;

2. From 1 March 2017 to date I would allow seven hours per week at $28.24 per hour.

395. This involves cooking and cleaning up of four hours per week, two hours per week for general cleaning and linen changing and one hour per week for assistance when needed for transport to the hydrotherapy pool. That is an amount of $197.68 per week.

396. In relation to the future, I consider it likely that the plaintiff will, as she improves, particularly her psychological condition, engage in more modest cleaning tasks and will commence some cooking. I also consider it likely that she will be more confident in driving herself to the hydrotherapy pool. Having regard to these matters and the plaintiff's age (as she may have needed more domestic assistance anyway), I would allow a buffer for the future of $20,000. This allows an ongoing allowance of about seven hours a week for two years. In my view this properly reflects the likelihood that the plaintiff's condition will improve and she will take on a greater role with domestic duties.

397. Therefore, the amount of damages which I would have allowed is as follows:

Head of damages
Non-economic loss	$33,000
Past economic loss	$47,203.05
Past superannuation loss	$5,192.33
Future loss of earning capacity	$40,000
Past out-of-pocket expenses	$2,000
Future out-of-pocket expenses	$23,000
Past domestic assistance	To be calculated in accordance with reasons
Future domestic assistance	To be calculated in accordance with reasons

Disposition

398. Accordingly, I have found that the cause of the accident was the careless control of the mobility scooter by Ms Connolly. On all the evidence, I have found that the defendant did not breach the duty of care which it owed to the plaintiff and that causation has not been established.

399. This accident caused serious injuries to the plaintiff. It has also raised the risks posed by mobility scooters under the control of persons with a disability. I recommend that consideration be given to: a) having a medical test requirement for people driving a mobility scooter to ensure they have the physical ability and vision necessary safely to control a scooter; b) requiring the drivers of mobility scooters to be insured; and c) placing controls on scooters allowing their speed to be limited to 3kph in shopping centres and other indoor locations and drivers being required to place the scooter at that speed mode when in a shopping centre or other public indoor location.

400. I make the following orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.

1. Liberty to the parties to apply to seek a different cost order to that in (2).

2. Exhibits to be returned after 28 days.

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Decision last updated: 18 October 2019