Zadel v Eastern Suburbs Leagues Club Ltd

[2018] NSWDC 140

District Court

New South Wales

Medium Neutral Citation:	Zadel v Eastern Suburbs Leagues Club Ltd [2018] NSWDC 140
Hearing dates:	6, 7, 8, 9, 12 and 13 March 2018
Date of orders:	16 March 2018
Decision date:	16 March 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment for the plaintiff against the defendants in the sum of $10,336.02. (2)   The question of costs reserved to a date to be fixed upon the representatives of the parties contacting my associate within seven days. (3)   Leave to file in court the Notice of Discontinuance in respect of the cross-claim.
Catchwords:	NEGLIGENCE – fall – dancefloor - causation – contributory negligence – damages – pre-existing condition – lost earning capacity – domestic assistance
Legislation Cited:	Evidence Act 1995, s 62
Cases Cited:	Czatyrko v Edith Cowan University [2005] HCA 14 Mason v Demasi [2009] NSWCA 227
Category:	Principal judgment
Parties:	Frieda Zadel (plaintiff) Eastern Suburbs Leagues Club Ltd (ABN 63 000 249 490) (first defendant) Southern Cross Venue Services Pty Ltd (ACN 138 594 135) (second defendant)
Representation:	Counsel: Mr J Wilson (plaintiff) Mr B G Smith (defendants)   Solicitors: RMB Lawyers (plaintiff) HWL Ebsworth Lawyers (defendants)
File Number(s):	2016/257500
Publication restriction:	None

Judgment

A. Introduction

1. Frieda Zadel fell while dancing at the Eastern Suburbs Leagues Club at Berkeley, and injured her back. She sues the Club and the Club’s security company, Southern Cross Venue Services Pty Ltd, for damages.

B. Issues

2. The club and the security company have settled the cross‑claim between them. Both seek the same judgment in their favour on Mrs Zadel's case and accept the same liability for any judgment in her favour. Hereafter I will not distinguish between them and refer only to the Club.

3. Mrs Zadel gave evidence that her foot slipped on the base of a post of a barricade. I am relieved of the need to consider whether the Club was negligent in its use or positioning of the temporary barricade because during the trial the Club admitted that it was in breach of its duty of care in placing a temporary barricade on the dance floor in front of the stage. Whether the barricade caused Mrs Zadel's fall is in issue. In the event that liability is established, the Club also submits that its liability should be reduced by 15% for contributory negligence. Principally by Mrs Zadel moving backwards without watching where she was going, having been aware of, but having forgotten about, the presence of the barricade. Accordingly, causation and contributory negligence are the only liability issues.

4. As to damages, Mrs Zadel submits various heads of damages arising from a permanent back injury. The Club submits that the injury was a minor soft tissue injury that resolved within a few weeks. The amounts claimed for the various heads of damages are consequently disputed.

C. Background

5. At about 6.30pm on 31 May 2014 Mrs Zadel went with her husband, Mirko Zadel, and friend, Leanne Watson, for dinner and an evening at the Club. A Bon Jovi tribute band was performing. Dinner concluded at about 7.30pm and the band commenced playing some time after 8pm. The Club was packed with people and Mrs Zadel was wearing her favourite boots with a 2 inch heel. She had consumed about five to six standard drinks during the course of the evening.

6. The band was on a stage, which was a platform adjacent to and raised about 15 centimetres above the dance floor. The dance floor comprised a rectangular parquetry area about 6 metres wide, the width of the stage, by about 5 metres deep. On the sides other than the stage, the parquetry dance floor was surrounded by carpet on which, not immediately adjacent to the parquetry, were the tables of the diners. On the dance floor immediately adjacent to the middle of the stage was the temporary barricade comprising of two posts joined by tape. The barricade was not dissimilar to those commonly seen at airports to guide queuing passengers. It was about 2.5 metres in length, such that it did not nearly extend across the whole width of the stage. Each post comprised a cylinder approximately 8 centimetres in diameter by about 90 centimetres high with a large metallic base, perhaps about 40 centimetres. These measurements are necessarily approximate in part because no measurements were given in evidence and can only be inferred from later photographs of the barricade in position.

7. Mrs Zadel had danced with Ms Watson a couple of times earlier in the night. At around 11pm they were dancing near the stage and thus near the barricade when Mrs Zadel fell and injured her back. She moved back to her table. She said she was okay when questioned by a security guard.

D. The fall

8. The reason for Mrs Zadel's fall is the primary contested liability issue. Mrs Zadel gave evidence that she was in the middle of the dance floor with her friend, Ms Watson. There were about eight to ten others dancing when a particularly popular song was played. A large number of other persons moved to the dance floor. In response, Mrs Zadel and Ms Watson, who were dancing together, moved towards the stage away from the oncoming persons. Mrs Zadel conceded that she had seen and knew of the temporary barrier but temporarily forgot its presence. She said that as the other patrons came onto the dance floor, she moved backwards towards the stage as she continued to dance with Ms Watson. She placed one heel on the base of the post and slipped, falling onto the top of the post and then to the floor. The post remained upright. She attributed a bruise of about 1 inch diameter on her back to contact with the top of the post. She was embarrassed by the fall and moved back to her table where her husband was sitting. A security guard asked her how she was, and she said she was okay. She left the Club with her husband and Ms Watson 15 to 30 minutes later, feeling a bit sore.

9. Ms Watson gave similar evidence. She said that the dance floor became very packed and "squashy," although she indicated that the fall occurred during the dancing rather than the initial movement towards the stage away from the oncoming patrons. She gave no evidence of seeing where Mrs Zadel's foot was placed. The next day she told a manager at the Club that Mrs Zadel had slipped on a post. She denied that she had put her weight onto Mrs Zadel during the dancing or that she had been "swaying" when dancing.

10. Nicholas Piffarelli was a security guard of the Club on the night. He gave evidence that the dance floor was very crowded, "like sardines," with perhaps 150 to 200 people dancing. He said that Mrs Zadel and Ms Watson were dancing "inappropriately", in a "sexual manner" that was "sexually oriented" to each other. He said Ms Watson put her weight on Mrs Zadel and caused her to fall. Mr Piffarelli gave evidence that he prepared a report signed by him some 30 minutes after the incident. It stated: [1]

“I NICHOLAS PIFFARELLI WAS STANDING ON THE STAGE OVERLOOKING THE PATRONS THAT WERE ON THE FLOOR. AROUND THE TIME OF 23:30 A LADY WEARING A BLACK CARDIGAN AND BLUE GENES WAS DANCING WITH HER FEMALE FRIEND. THEY WERE BOTH IRRESPONSIBLE IN THEIR MOVEMENT BY SWAYING IN AN INAPPROPRIATE MANNER WHERE THE VICTIMS FRIEND HAD PLACED HER BODY WEIGHT ON TOP OF HER FRIEND WHERE SHE WAS FALLING TO THE GROUND. PASSING THE SAFETY BARRICADE THAT WAS SET BY ME TO PROTECT THE BAND.

BOTH FEMALS WERE AT FAULT FOR DISORDERLY CONDUCT FROM WHAT WAS SEEN.

I THEN RUSHED OVER TO SUPPORT THE FEMALE WHO FELL AND ASKED ‘ARE YOU OK MAY’M? IS THERE ANYTHING I CAN HELP YOU WITH, DO YOU REQUIRE FIRST AID?’ SHE THEN REPLIED “I’M FINE”. THE FEMALE THEN WALKED OFF.” [Errors in original].

1. Exhibit 4.

11. When Mrs Zadel and Ms Watson returned to the Club the next day and met a manager, a form was completed. Ms Watson gave evidence that the manager's name was "Mitchell". The form was largely handwritten, neither by Mrs Zadel or Ms Watson (other than Mrs Zadel writing her name and contact details), and was signed by "M Hancock", apparently someone at the Club. The handwritten account was largely supportive of Mrs Zadel's and Ms Watson's accounts. The form recorded: [2]

“At around 2300hrs F. Zadel was on the dance floor with her friend when she stepped back catching her heel on the baracade pole causing her to fall backwards on top of the pole. No report or treatment was done at the time. F. Zadel has gone to the doctors today (Sat 1/6/14) for a possible back injury as a result from her fall the last night.” [Errors in original].

2. Exhibit A, p 330.

12. The issue to be decided is whether or not Ms Zadel's heel slid on the base of the barricade post. No one saw her heel do this and no one heard anything determinative. However, the evidence of Ms Watson, of Mrs Zadel and the form prepared by the Club support Mrs Zadel's account. Mr Piffarelli's report also suggests that Mrs Zadel was close to the barricade. The reference to the barricade in Mr Piffarelli’s report might indicate a possible connection with the fall.

13. Evidence does not depend merely on what is heard and seen but also what is "otherwise perceived". [3] Mrs Zadel must have perceived, principally by what her foot felt, that her foot contacted something slightly above the dance floor, not exactly horizontal, where upon she slipped on top of the barricade post. There is no contrary evidence and I have no surrounding evidence that throws doubt on her account. I accept it as satisfactory evidence that she slipped when her heel came into contact with the base of the post.

    3. See Evidence Act 1995, s 62(2).

14. Strictly, Mr Piffarelli's account of Mrs Zadel falling from the weight of Ms Watson does not preclude Mrs Zadel's foot slipping on the base of the post, even if that was in part as a result of Ms Watson's weight on her as Mr Piffarelli testified. But I do not accept Mr Piffarelli's account.

15. Mr Piffarelli was nervous in the witness box. That might not indicate anything untoward. Giving evidence can be a stressful event. Significantly he could not recall the barricade, even when shown photos of it and after having read his own contemporaneous account which spoke not only of the barricade in place but that he had set it up. His faulty recollection on this matter casts some doubt on the reliability of those things that he did claim to recollect.

16. There are other reasons to be concerned with the accuracy of Mr Piffarelli's evidence.

17. The Club relied on his contemporaneous record of the event, more so than his evidence. The Club accepted that the barricade was in place, as the statement indicates, notwithstanding Mr Piffarelli's contrary oral evidence.

18. Mr Piffarelli's evidence that Mrs Zadel's and Ms Watson's dancing was inappropriate and sexual was strongly denied by both Mrs Zadel and Ms Watson. As I said, whether that occurred or whether Ms Watson may have put her weight on Mrs Zadel does not deny that Mrs Zadel's foot may have slipped on the post. But because of Mrs Zadel's and Ms Watson's denials, Mr Piffarelli's defective recollection, and the likelihood that, before the fall, their dancing was unlikely to have been his focus or be clearly visible in a dimly lit and crowded area of a lot of people close together, I do not accept Mr Piffarelli's account and am persuaded on the balance of probabilities of Mrs Zadel's account. In the result, I find that Mrs Zadel's heel did connect with the base of the barricade post which resulted in her fall and that it was not due to "inappropriate dancing" or Ms Watson putting her weight on Mrs Zadel.

19. The Club accepts that a finding of Mrs Zadel's heel slipping on the base of the post is sufficient to establish negligence.

20. It might be thought difficult for Mrs Zadel to have "fallen" onto the top of the post, which, was of a height similar to her lower back and which, she said, remained upright, but she did fall, to the ground, and neither party suggested it was material what part of the floor or post was struck in the fall.

E. Contributory negligence

21. The Club submits that Mrs Zadel was contributorily negligent to the extent of 15%. I understood this submission to be based on the Court accepting Mrs Zadel's account of the fall, that her fall occurred whilst she was moving backwards while dancing. The Club submitted that she was not watching where she was dancing.

22. The Club accepted that this level of negligence was minor, whereas Mrs Zadel submitted that there was no contributory negligence because it was "mere inadvertence, inattention or misjudgment". [4] In my view, mere dancing could not be contributory negligence. But Mrs Zadel moved backwards. The circumstance that the movement was prompted by additional patrons coming onto the dance floor does not remove a person's duty to take reasonable care for their own safety. She knew of the barricade and posts and to move backwards towards them and the step on the stage, whether in the actions of dancing or not, without looking or otherwise being aware of where they were, is, in my view, a failure to take sufficient care and is contributory negligence.

    4. Czatyrko v Edith Cowan University [2005] HCA 14 at [18].

23. However, it is minor, even a little more minor relative to the admitted negligence of the Club than the Club submits. I propose to reduce damages by 10% for contributory negligence.

F. Damages

(a) The injury

24. The primary issue in the quantum of Mrs Zadel's damages claim is whether her injury was of short duration, or alternatively, remained a problem to the present day and continuing.

25. The evidence included the reports of three expert witnesses: Dr John Bentovoglio, an orthopaedic surgeon, Dr Gerard Barold, an occupational physician, both retained by Mrs Zadel, and Dr David Maxwell, an orthopaedic surgeon, retained by the Club.

26. Dr Bentovoglio gave his opinion that Mrs Zadel "would have aggravated pre-existing degenerative changes present in her lumbar spine as a result of the specific injury to her back in May 2014". He thought it "likely she will continue to experience symptoms present in her back indefinitely" and concluded:

“Although Mrs Zadel had evidence of pre-existing degenerative changes in her back, they were asymptomatic prior to the specific injury she had. It was the specific injury that caused her to become symptomatic. If indeed she did not have that specific injury, she may never have become symptomatic.”

27. Dr Bentovoglio repeatedly noted in his report that Mrs Zadel denied having problems with her back previously.

28. In fact, Mrs Zadel had experienced previous back problems. In July 2008 she obtained X‑rays of her thoracic and lumbar spine, which revealed spondylitic changes and possible discogenic disease. In August 2010 she consulted Dr Myrna Jover complaining of pain on the left side of her back radiating down her left leg. The clinical notes of the local doctor indicated that she had experienced that pain for two months, and further notes indicated that it resurfaced in or continued until at least December 2010. Mrs Zadel accepted the accuracy of that record.

29. Mrs Zadel’s 2014 X‑rays after the fall revealed significant pre‑existing degenerative changes "extensive lumbar spondylosis with retrolisthesis of L3 or L4". Dr Ho stated that this "explained the pain" even as early as 18 June 2014, less than three weeks after the fall. By that stage the notes record that there was "no problem in the hip”, but there was referred pain to the groin and numbness to the left leg similar to the 2010 episode.

30. Whilst some caution should be applied in assessing Dr Bentovoglio's record of Mrs Zadel's denials of a previous back problem,[5] nevertheless, the mistaken fact of no previous symptoms was significant in his findings. If the circumstance of the pre‑existing degenerative changes were not asymptomatic, as he records, the basis for his conclusion that the injury from the fall "caused her to become symptomatic" loses its force.

    5. Mason v Demasi [2009] NSWCA 227 at [2].

31. This matter is compounded by the absence in Dr Bentovoglio's report of any reference to Mrs Zadel's hip complaints, which were significant in the clinical record in 2015 and 2016 causing her to have several cortisone injections to treat the pain.

32. Dr Bentovoglio saw Mrs Zadel in mid‑2016, whilst she was off work for a back injury which occurred at work and for which she received workers compensation (a matter I consider further below). No more recent report has been provided and Dr Bentovoglio was unable to participate in the expert conclave, to which I will refer.

33. For all of these reasons, I am not inclined to rely heavily on Dr Bentovoglio's conclusions.

34. Dr Barold also recorded that Mrs Zadel "denied any previous injury or symptoms to the lower back", that her past medical history "revealed no other health problems of any significance" and that, "Mrs Zadel repeated that her back had been asymptomatic in the years prior to the subject fall". He concluded that her lumbar spine strain and left sacroiliac bruising were attributable to the fall and continued to December 2016, when he examined Mrs Zadel. He thought that by then Mrs Zadel had reached maximal medical improvement. However, Dr Barold was subsequently made aware of the prior back complaints in the experts’ conclave.

35. Dr Maxwell examined Mrs Zadel in May 2017 and concluded that she may have sustained some soft tissue bruising in the fall but she would not have sustained any other injuries. He referred to her "long history of multiple musculoskeletal problems prior to the subject accident, including back pain and left hip pain”. He considered the injury from the fall would have settled within two or three weeks and any ongoing disabilities were unrelated to the fall.

36. Dr Maxwell and Dr Barold met in a "teleconclave" and a joint report was prepared. The doctors agreed that Mrs Zadel had suffered a soft tissue injury to the lower back and pelvis or sacroiliac area. Dr Barold however maintained that these injuries had aggravated "previously asymptomatic" degenerative changes in her spine, and "possibly accelerated" those changes.

37. The Club submitted that I should accept Dr Maxwell's conclusion in part because he is an orthopaedic surgeon whose relevant expertise in the spine might exceed Dr Barold's as an occupational physician.

38. Although Dr Barold was apparently made aware of the previous back problems in the joint report, he adhered to the opinion that Mrs Zadel's spinal problems were "previously asymptomatic". There was no attempt by him to explain the 2008 and 2010 episodes.

39. Mrs Zadel's work history and complaints of the pain in the period after the fall do not reflect a continuing and unrelenting problem with her back. After the fall, she was off work for two months and travelled overseas for a fortnight on a holiday with her husband. No claim is made for that holiday period. When she returned, two and a half months after the fall, she returned to her old job on the same duties, performing the same hours of work as she did before the fall. Although Mrs Zadel had various absences from work from time to time in the two years after the fall incident, none were attributable to back pain in the period from August 2014 to 14 December 2014 inclusive, or in the year from May 2015 onwards. There were five days in total in that two‑year period when she took time off and complained of back pain.

40. Mrs Zadel placed some uncertain reliance on her hip pain as a consequence of the fall. Dr Barold and Dr Maxwell agreed that the fall had produced a soft tissue injury to her lower back and pelvis or sacroiliac joint. Whilst this may be the same "area" as the hip, as Mrs Zadel submitted, the inflamed bursa for which she repeatedly sought relief by cortisone injection cannot be regarded as the sacroiliac joint, even if Mrs Zadel was not always clear in her evidence of the difference.

41. Mrs Zadel did make several complaints of hip pain, principally beginning in 2015. She thereafter had several cortisone injections as a treatment for this complaint. However, it is apparent that this was treatment for bursitis for an inflamed hip bursa, a condition, she accepted in submissions, to be unrelated to the fall. Dr Barold's report recorded that Mrs Zadel "developed pains in her...left hip on or about March 2015", which was some ten months after the fall. In the joint report, Dr Barold also spoke of these "other painful ailments" which, "temporarily diverted her from seeking more treatments and supervision of her back injury", indicating an acceptance by the doctor that her bursitis or hip complaint was not attributable to the injury.

27. Although Mrs Zadel gave evidence that her back condition was more or less constant for the period since she returned to work, and different in kind from the back pains radiating down her left leg that she experienced in 2008 and 2010, she had said that the earlier manifestations were "pinched nerves" whereas this was like a "knife into my left hip'. That description itself may suggest that the pains were different because her focus came to be on her left hip rather than her lower back injury from the fall. The medical records indicate that in terms of frequency, her back complaints, as her own expert Dr Barold accepted, were not nearly as prominent in 2015 and 2016 as her complaints of the hip problem and other matters.

28. Mrs Zadel had repeated cortisone injections, not only for her left hip bursitis, which was causing her significant pain, but for pains in her inflamed right shoulder.

29. During the period since the fall, Mrs Zadel has had worsening pain in her right heel, a problem which also produced symptoms in 2013, prior to the fall. In 2017 she wore a moon boot for four weeks and took time off work during that period.

30. These other complaints, which involved medical intervention in the form of cortisone injections or directions to wear a moon boot, and significant time off work, should be considered in assessing her damages.

31. I do not accept that any part of the hip complaints were attributable to the fall. The complaints arose 9 to 12 months later. Dr Maxwell clearly stated that the trochanteric bursitis was not the subject of the fall and neither Dr Bentovoglio nor Dr Barold expressed disagreement with this or otherwise attributed the hip problem to the fall.

32. In that case, the damages occasioned by the repeated hip complaints, as well as the shoulder complaints and those of the right heel, cannot be attributed to the fall and must be excluded when assessing Mrs Zadel's damages.

33. I earlier mentioned the back injury in 2016 which occurred whilst Mrs Zadel was at work. The question arises as to whether this was attributable to the pre‑existing degenerative changes that had manifested symptoms spontaneously without an incident in 2008 and 2010 or was rather attributable to the 2014 fall. The accounts of Mrs Zadel to Dr Barold, Dr Bentovoglio and Dr Maxwell, as well as repeatedly in evidence in this Court, were to the effect that she was off work for three and a half months. It was accepted that she was actually off work for two months, the months of June and July, before going on holiday and returning to work in mid‑August 2014.

34. Mrs Zadel also in evidence downplayed her activity in the gym ever since the fall. However, in October 2014, some four and a half months after the fall, she was seeing an exercise physiologist concerning some weight gain and the records of that professional lead inevitably to the inference that at that stage she was attending the gym five times a week for an hour using some or all of the treadmill, the bike, the rowing machine and the cross‑trainer. She was given some recommendations and increased her exercise to one and a half hours per day, five days a week, with some improvement noted in her condition.

35. Assessing the work injury in 2016 in this context persuades me that it could not be reasonably regarded as attributable to the fall in May 2014. Mrs Zadel was not adamant that it was and she claimed workers compensation payments for her two‑month absence from work because it was a work‑related injury. In my view, it was likely an aggravation of her pre‑existing back condition and not an aggravation of any injury in the fall.

36. I am persuaded that the particular soft tissue injury to her back and pelvis largely resolved in the period prior to her overseas holiday in August 2014 and her damages must be assessed on that basis.

G. Heads of damage

(a) Non‑economic loss

52. I think, and I understood Mrs Zadel in submissions to accept, that the soft tissue back injury requiring two months off work to resolve does not meet the threshold of 15% of a most serious case and therefore she cannot be awarded any amount for non‑economic loss.

(b) Past lost earnings

53. On the assumption that liability was established, the Club conceded Mrs Zadel's claim for lost, sick and annual leave in the two months following the fall and did not seek to oppose Mrs Zadel receiving the lost wages for the four or five days in the subsequent nine months where there appeared to be some connection with her back complaint. This loss calculated to be $4,035.03, which I include in Mrs Zadel's damages.

54. For the reasons already given, thereafter the injuries from the fall were largely resolved. Damages should not include any other days off in the period to date. The other days the subject of the claim were largely the month or so off work that became the subject of the workers compensation claim and about two other days in 2016.

(c) Out‑of‑pocket Expenses

55. In relation to out‑of‑pocket expenses, once the workers compensation payback and hip‑related expenses are excluded, the residual amount is accepted to be $2,449.44.

(d) Domestic assistance

56. Mrs Zadel also makes a claim for domestic assistance. The Civil Liability Act 2002 does not permit an award for gratuitous domestic assistance unless it meets the threshold of six hours a week for a minimum of six months.

57. Mrs Zadel received some domestic assistance, principally from her husband, after the fall. In evidence‑in‑chief, she said she would do seven hours domestic duties per day, but did little after the fall. Her evidence of her incapacity after she returned to work tended to lessen as the cross‑examination proceeded, and towards the end of her testimony in cross‑examination she accepted that she needed no more than one to one and a half hours' assistance per week on particular matters that she could not do, she said, like cleaning the skirting boards and the high window sills.

58. Mrs Zadel also accepted that since she returned to work in 2014, her condition has remained largely constant. The evidence was given in a somewhat generalised fashion and her concessions in cross‑examination tended to be given in a lower volume than her earlier answers. Whether that indicated that she was reluctant to concede a limited need or something else was not clear, but her evidence did not leave me with confidence of her limited capacity. That concern was amplified by a recent recording of her activities at work and shopping to which I will come.

59. As Mrs Zadel was doing a lot of domestic work daily before the fall, she would no doubt have noticed the change when for a period she was unable to perform those duties. Well within the six‑month threshold period she was back at work performing the same work duties, going to the gym five days a week for one to one and a half hours a visit and coping with the rigours of work in a busy delicatessen. I do not accept that Mrs Zadel needed domestic assistance once she returned to work some two and a half months after the fall. That her husband, and to a much lesser extent, her adult children, may have continued to provide more assistance than previous to the fall is not attributable to any need on her part attributable to the fall. It may be that her short period of diminished capacity informed other family members of how much work she previously did and that they should continue to assist.

60. From August 2014, Mrs Zadel was working 20 hours a week in a Coles delicatessen carrying, among other things, 10 kilogram meat trays and various other duties. A recording of her work and shopping activities was shown to the Court. Much of the recording did not conflict with her concluding testimony where she admitted a significant capacity, although it did confirm that she was quite able to carry multiple shopping bags containing large bottles of soft drink to her car, a matter which she had denied in evidence. The nature of her work where she was employed indicated an ability to do domestic duties. My findings that Mrs Zadel's fall‑related complaint resolved at about the time she returned to work means that the six‑month threshold is not satisfied and precludes an award of damages for past or future gratuitous domestic assistance.

61. Although commercial domestic assistance might be awarded for a need less than six hours per week, Mrs Zadel has not engaged any domestic workers in the period since the accident to date, and I was not persuaded that in her present condition she would in the future. Those doubts were not relieved by her and her husband answering affirmatively to the leading question, "If you had the money would you" engage commercial assistance? There were no other questions asked about that matter and no evidence of her financial position other than Mrs Zadel giving evidence to an unrelated question that she was "quite happy" with the money she has. To the extent that, contrary to my finding, Mrs Zadel has a need for any domestic assistance, I am not persuaded that it arises from her fall rather than from her pre‑existing condition and the unrelated complaints to which I have referred. There is force in Dr Maxwell's comment doubting, "that a person working 20 hours per week in a delicatessen would need domestic assistance", at least when the term “need” is understood in the context of a claim for damages.

(e) Lost earning capacity

62. The only other matter in the claim is for lost earning capacity. Dr Barold, who of the experts is perhaps most qualified as an occupational physician to comment on this, thought it "unlikely that she will be forced into an early retirement". Dr Maxwell was evidently of the same view and I prefer this to the contrary view given in mid‑2016 by Dr Bentovoglio. In any event, I do not attribute any of her present ailments to the fall at the Club.

63. However, it is not disputed that Mrs Zadel did suffer an injury in the fall. Whilst I have found that it has resolved, such that it has not led to any damage in recent times, there is a possibility that future back problems could result including problems that do not arise merely from her pre‑existing condition. Her work schedule has changed and might be thought to have become more demanding. This, together with the uncertainties of the future, persuade me that I should allow a small buffer of $5,000 against the possibility of necessary time off work for matters not entirely unrelated to her fall of 2014.

H. Conclusion

64. Accordingly, damages are determined in the sum of $2,449.44 for out‑of‑pocket expenses; plus $4,035.03 for lost sick leave and annual leave, being for past loss of earnings; together with a buffer of $5,000 for lost earning capacity (including superannuation), totalling the sum of $11,484.47, less 10% for contributory negligence. This leaves an amount to be awarded of $10,336.02.

65. The parties have asked that I reserve the question of costs.

I. Orders

66. The orders of this Court are:

1. Judgment for the plaintiff against the defendants in the sum of $10,336.02.

2. The question of costs reserved to a date to be fixed upon the representatives of the parties contacting my associate within seven days.

3. Leave to file in court the Notice of Discontinuance in respect of the cross-claim.

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Endnotes

Decision last updated: 08 June 2018