District Court New South Wales Medium Neutral Citation: Khanna v Woolworths Group Limited (ABN: 88 000 0146 75) (No 2) [2021] NSWDC 567 Hearing dates: 10-11 March 2021; 16 March 2021; 17-19 May 2021; 21-22 June 2021; 25 August 2021 (written submissions); 1 September 2021 (written submissions); 9 September 2021 (written submissions);16 September 2021 (oral submissions) Date of orders: 20 October 2021 Decision date: 20 October 2021 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 within 14 days for a different costs order to that in (2) above. Catchwords: TORTS – negligence – trip and fall – Civil Liability Act 2002 (NSW) claim – alleged breach of duty of care by the defendant which resulted in the plaintiff's wife tripping on goods near an aisle of the defendant's store causing the plaintiff's wife to fall and the plaintiff being allegedly injured in attempting to support her – whether injury occurred as alleged by the plaintiff – whether breach of duty of care – question of the nature of the injuries suffered by the plaintiff, if any, in the accident – extensive pre-accident and post-accident history of other accidents and injuries and conditions LIMITATIONS OF ACTION – personal injury - ss 50C-50D Legislation Cited: Civil Liability Act 2002 (NSW) Limitation Act 1969 (NSW) Civil Liability (Non-economic Loss) Amendment Order 2021 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Best v Rosamond [2020] NSWCA 90 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Council of the City of Sydney v Bishop [2019] NSWCA 157 DC v State of New South Wales [2016] NSWCA 198 Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Kabic v AAI Limited t/as GIO [2019] NSWCA 247 Lloyd v Thornbury [2019] NSWCA 154 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Mason v Demasi [2009] NSWCA 227 McPherson v Dowell [2018] NSWDC 348 Miller v Galderisi [2009] NSWCA 353 New South Wales v Burton [2016] NSWCA 12 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Category: Principal judgment Parties: Sanjeev Khanna (Plaintiff) Woolworths Group Limited (ABN: 88 000 0146 75) (Defendant) Representation: Counsel: In Person (Plaintiff) R Gambi (Defendant) Solicitors: HBA Legal (Defendant) File Number(s): 2019/00030652 Publication restriction: No Judgment 1. In these proceedings, the plaintiff, Mr Sanjeev Khanna, brings a claim in negligence against the defendant, Woolworths Group Ltd, which previously carried on business at a Masters Home Improvement store at Rouse Hill in New South Wales, in relation to personal injuries allegedly suffered by the plaintiff on 18 April 2015. The proceedings are brought by the plaintiff under the Civil Liability Act 2002 (NSW) ("CLA"). 2. The plaintiff alleges, in summary, that his wife, Mrs Geeta Khanna, tripped on the legs of chairs of a stack of chairs in the defendant's store which was negligently placed by the defendant creating a trip hazard and this caused the plaintiff's wife to fall. The plaintiff says that he attempted to stop his wife falling and, as a result, fell himself, causing injuries to him. The defendant, in summary, disputes that the plaintiff fell or, if he did fall, that he suffered any injury and, if he suffered any injury, that it gives rise to compensable loss under the CLA. A limitation defence is also pleaded. The issues 1. The defendant handed up a lengthy statement of issues at the commencement of the trial. In my view, the issues to be considered are of a narrower compass and are as follows: 1. Was there a fall by the plaintiff's wife at the defendant's store on 18 April 2015? 2. Was a duty of care owed by the defendant as the occupier of the store to the plaintiff and his wife? 3. What was the precise mechanism of the fall by the plaintiff's wife? 4. Did the plaintiff himself fall and in what way? 5. In the light of the court's factual findings, was there a breach of a duty of care owed by the defendant to the plaintiff's wife and the plaintiff? 6. Did any breach of duty of care by the defendant cause any injury to the plaintiff? 7. If so, what was the extent of the injury caused? 8. Does any injury caused by any breach of duty of care by the defendant give rise to compensable loss in the plaintiff? 9. The plaintiff filed his Statement of Claim on 29 January 2019. Under s 50C of the Limitation Act 1969 (NSW), there are limitations for the bringing of personal injury actions, being the period of three years running from and including the date on which the cause of action is discoverable by the plaintiff. The defendant has pleaded s 50C of the Limitation Act and an issue therefore arises whether the action is statute barred because of the provisions of ss 50C and 50D of the Limitation Act. The pleadings 1. The plaintiff brings his claim by an Amended Statement of Claim filed on 25 February 2019. In substance, the plaintiff pleads: 1. The defendant carried on business at all material times under the name Masters Home Improvement at Rouse Hill in New South Wales; 2. The plaintiff and his wife as a result of a general invitation to the public decided to attend the defendant's store at Rouse Hill; 3. The plaintiff has been disabled since 23 September 2013; 4. The defendant owed the plaintiff a duty of care; 5. On 18 April 2015, the plaintiff and his wife were walking in the store when the plaintiff's wife tripped on a stack of chairs and fell on the concrete floor. The plaintiff tried to save the fall of his wife but could not save her and in the process of attempting to save her, the plaintiff injured himself in the right knee and lower back; 6. The plaintiff's injury occurred as a result of the defendant's negligence which included a failure to safely format the layout of the floor of the store, a failure to arrange the stock to avoid the risk of injury and creating a hazard by putting large stacks of chairs where shoppers may trip over them; 7. The plaintiff alleges that as a result of the defendant's negligence, he has suffered injury and loss. 1. In a Statement of Particulars filed on 1 July 2019, the plaintiff claims extensive injuries as a result of the accident including anxiety and mental distress, a knee injury, a cervical spine injury, and injuries to the pelvis and right hip. The plaintiff claims that the psychiatric injury suffered includes depression and the injuries have caused continuing disabilities including an inability to walk which results in worsening diabetes. 2. In a Defence filed on 4 March 2019, the defendant, in summary, denies liability and states that the Amended Statement of Claim is statute barred pursuant to s 50C of the Limitation Act. The defendant denies that the accident occurred as alleged or at all. It admits that it was the occupier of the Rouse Hill store at the time. The defendant also claims that it took reasonable precautions in the circumstances at the store and all relevant hazards were removed. The defendant also pleads in the alternative, that if it was negligent, the plaintiff's injuries were due to the manifestation of an obvious risk: ss 5F, 5G and 5H of the CLA. The defendant also relies on contributory negligence and a lack of causation. The plaintiff's evidence Exhibit A 1. At the commencement of the hearing, the plaintiff, who was self-represented, provided to the court a document entitled "Court Book Chronologically Submission" which referred to various matters relating to his claim. This was treated solely as a submission. 2. The plaintiff tendered a folder of documents which became, following certain objections, Exhibit A in the proceedings. 3. The plaintiff also read an affidavit of his dated 10 March 2021 in which he referred to his anxiety and depression. 4. Part of Exhibit A was an incident report which was prepared by employees of the defendant. The incident report provides that the incident occurred on 18 April 2015 at 3:20pm and was reported to Mr David Zammit, the Assistant Store Manager, at the time. Mr Zammit gave evidence and stated that the contents of the report were prepared by Mr Ross Atherton following Mr Zammit providing information to him. The incident summary was described as: "Customer Geeta tripped on stack of chairs and fell to the ground". 1. The further details of the incident in the report were as follows: "Customer Geeta Khanna was walking around corner of Bi Fold tables display located at the front of the store. Customer Geeta tripped on stack of chairs next to display. As Customer Geeta went to fall she went to break her fall by grabbing the table set up in front of the display, however the table slid a short distance before falling [to] the ground. Customer Geeta then fell on both knees but stated to Ross (CEM) that she landed firstly on her right knee then on her left knee. Customer's husband stated to Ross that the floor was slippery." 1. The report indicates that first aid was applied by Mr Ross Atherton and the floor was inspected by Mr Zammit and Mr Atherton and no evidence of debris or liquid spillage in the area was located. The injury to Mrs Khanna was described as "swelling and bruising to knees" on both sides of the body. The report indicated that the area was not covered by CCTV. The name of the staff member who first attended Mrs Khanna was recorded as Mr Zammit. The report included the following comments: "Store was busy and can't specifically point who the area was inspected last as there was associates constantly in the area. After customer had fallen area was inspected by David and Ross and there was no evidence of spillage or debris in the area". 1. The report referred to and attached a handwritten diary entry of Mr Zammit. The report also indicated that a letter of demand was received on 28 October 2015 by the defendant from Shad Partners Compensation Lawyers. 2. As stated, annexed to the report was a diary entry for Saturday, 18 April 2015 in the following terms: "I was directly behind the customer when she fell over. The customer was looking up at the furniture wall direction not in front of her. She did not see the folding table and tripped on the leg of the table and then tried to brace herself using the table, the table slid forward and the customer fell on her knees. I then comforted the lady offered her a chair and asked her if she was okay and the other manager Ross Atherton applied first aid. Whilst comforting the lady her husband was trying to make me sign a document saying we were liable and wanted a copy of the incident report. I rang store manager Sean who then spoke to the husband." 1. It should be noted that Mr Zammit's diary entry indicates that Mrs Khanna tripped on the leg of a folding table whereas the incident report indicates that she tripped on the leg of a chair which was part of a stack of chairs. The incident report was consistent with the oral evidence of Mr and Mrs Khanna. 2. Exhibit A included a number of colour photographs. These were taken on 18 April 2015 by the plaintiff. The photographs depict what appears to be a folding table and also a stack of what appears to be black plastic chairs. The photographs appear to depict the table and chairs at the end of an aisle with the chair stacks appearing to be abutting a stack of folding tables. 3. Part of Exhibit A was a document apparently written in hand by the plaintiff on the day of the accident which included the following: "My wife tripped & slipped from the stack of chairs and bi-fold tables were displayed on the left. Geeta fell on to both of knees on the ground with the right knee first & then on left knee. Her husband who was walking with her tried to save her fall but could not as the floor was slippery and the weight of his wife. In this process husband was also injured but without looking my injury I was more worried of my wife." 1. The plaintiff tendered as part of Exhibit A numerous medical notes, medical records and reports. Both parties relied on medical notes. Appellate courts have cautioned trial judges in relation to discounting a plaintiff's oral testimony on the basis of accounts given to various health professionals which appear to be inconsistent in notes particularly where the health professional has not been cross-examined: see Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. I take the caution stated by the Court of Appeal into account in considering the plaintiff's evidence. 2. I note, however, that the plaintiff appeared to be an intelligent man with a reasonable command of English. The plaintiff's general practitioners were also consulted by him over an extensive period. In addition, the consistency or lack of consistency of medical records is significant. Mr Khanna also referred to concentration and memory problems in his oral evidence. Some of the medical issues occurred over 10 years ago and, accordingly, in my view, particular weight should be given to contemporaneous documents especially if there is consistency in relation to them. 3. The medical records relied on by the plaintiff in Exhibit A were extensive. However, it is clear from the voluminous medical records tendered by the defendant which became Exhibit 1 in the proceedings, that the plaintiff's tendered medical records were limited and did not include all medical records prior to the 18 April 2015 accident or documents relating to other accidents in which the plaintiff was involved after the 18 April 2015 accident. With these limitations in mind, I refer to the more significant records relied on by the plaintiff in Exhibit A. General Practitioner notes 1. There are no medical notes relating to the plaintiff in Exhibit A for the period from 18 April 2015 to 11 June 2015, apart from a CT scan dated 21 April 2015. The plaintiff did not attend hospital immediately after his alleged injury and no ambulance was called. The plaintiff's general practitioner notes from the Rouse Hill Medical Practice include the following: 1. 12 June 2015: "Injured right knee whilst trying to break wife's fall in April (18/4) painful when mobilising O/E pain patellar region. No effusion Adv painkillers"; 1. 24 June 2015: "Left arm issues. Tingling and numbness Left third, fourth and little fingers Neck discomfort Neck muscle stiffness – worse in the morning MRI scan requested"; 1. 9 July 2015: "Right knee pain from fall in April. Adv physio"; 1. 26 August 2015: "GP mental health Pla"; 1. 26 August 2015: "Low mood. Anhedonia. Social phobias Has been getting worse Multiple medical issues causing patient to be mentally unwell Also has to see hepatologist urgently for deranged LFTs O/E mood low. No thoughts of DSH Plan – start ssn Ref psychologist"; 1. 29 August 2015: "Mental health plan and K10 26/8/15"; 1. 7 September 2015: "Diazepam requested Anxiety + Unable to sleep Diazepam helps patient rest"; 1. 22 October 2015: "Right knee pain – fell in April 2015. No physio appointment yet"; 1. 25 February 2016: "Still having low back pain and worsening right shoulder pain. Painful abduction at 90 degrees". Physiotherapy report 1. The medical records contain referrals to a physiotherapist and to a podiatrist. There was in evidence a report from Ms Wendy You, physiotherapist, dated 28 June 2018 referring to the plaintiff's "complex history of musculoskeletal problems. His treatments have commenced on 6 April 2018". Ms You states in her report: "Mr Khanna presents with various complex problems secondary to a history of a motor vehicle accident and recurrent hospital admissions. He complains of a dull ache to moderate pain across his lower back region that radiates into both of his glutes and thighs. Often he experiences numbness along the back of his thigh. These symptoms are aggravated with moderately timed walking or sitting. He finds bending upwards more painful than bending downwards. There is also a persistent dull ache to moderate pain across his neck that radiates into his upper back region that is strongly associated with headaches when aggravated. Mr Khanna further has bilateral glenohumeral joint pain and bilateral calf and foot pain; often leading to cramping sensations in the calf and foot." 1. No knee pain was referred to. The 18 April 2015 alleged fall was not specifically referred to. 2. Ms You found in relation to the plaintiff's lumbar spine, markedly reduced lumbar spine range of motion with pain being experienced radiating into the plaintiff's "glutes" and posterior thighs with tenderness on palpation over the sacroiliac joint and increased stiffness and tenderness on palpation over his lumbar spine facet joints. 3. An extensive period of weekly consultations was recommended for soft tissue and joint mobilisation and pain relieving techniques. Radiological investigations 1. As part of Exhibit A were numerous radiological investigation reports concerning the plaintiff. 2. The plaintiff claimed in his oral evidence that he saw a general practitioner on 19 or 20 April 2015. The history noted in a radiologist's report was: "2 months of radicular symptoms radiating to C8". A CT scan of the cervical spine reported on by Dr Kariappa dated 21 April 2015 found multilevel degenerative change in the plaintiff's cervical spine with broad-based disc bulges seen at the C5/6 level causing some flattening of the thecal sack at the level. A mild broad based disc bulge was noted at the C4/5 level. An MRI was recommended. 3. An MRI of the plaintiff's cervical spine was reported on by Dr Dugal on 25 September 2015 in the light of a clinical history of neck pain and pain down the left arm with radiculopathy. Dr Dugal confirmed that the cervical spine MRI showed no cord lesion but did note that there was a small disco vertebral "complex" at the C4/5 level without neuro central compression. This was said to be associated with mild foraminal stenosis. Although there was no deviation of the exiting C5 roots, Dr Dugal stated that this may irritate the roots at the C5 level and may account for symptoms. A left C5 nerve root injection was recommended. 4. A CT scan of the lumbar spine was reported on by Dr Evans dated 4 April 2018. The report noted multilevel vertebral body and bilateral facet joint osteophyte formations with a generalised mild lumbar canal stenosis but with no definite nerve root compression identified. A cortisone injection into the facet joints bilaterally particularly at the L5/S1 level was recommended. 5. Dr Nishiguchi reported on an MRI of the cervical spine on 20 December 2018 referring to cervical spondylosis and facet arthropathy being present most prominent at the C4/5 and C5/6 levels. Impingement of the C5 nerve root was suspected. There was reference to consideration of a CT guided nerve root block. 6. Dr Truong reported on an x-ray of the plaintiff's pelvis and right hip in a report dated 2 April 2019. Dr Truong reported mild osteoarthritis in the right hip joint and also mild osteoarthritis in the left hip joint. There was spurring noted at the iliac crests with mild to moderate lower lumbar spondylotic change. The x-ray of the right knee was essentially normal apart from prominent spurring at the patella. 7. An MRI of the right hip was reported on by Dr Sim on 26 November 2019 as a result of a history of right hip pain. Fraying and a tear at the plaintiff's labrum was noted with also chondral wear at the hip junction. There was said to be no "convincing" trochanteric bursitis. 8. An MRI of the lumbar spine dated 26 November 2019 referred to a degree of background congenital spinal canal stenosis of the lumbar spine with a mild disc bulge at the L5/S1 level with mild to moderate facet joint arthropathy of the mid to lower lumbar spine slightly more prominent at L5/S1 level. 9. There was a report by Dr Vasili, Orthopaedic Surgeon, dated 2 March 2020 with the plaintiff relating persistent right hip and knee symptoms from the fall on 18 April 2015. Dr Vasili referred to the MRI scans and noted that his examination demonstrated an irritable right hip joint and an irritable right patellofemoral articulation. A future CT guided right hip injection was noted. 10. An MRI of the brain reported on by Dr Wan on 11 December 2020 noted that since 7 May 2018 there was generalised volume loss in the plaintiff's brain with features of chronic microvascular ischaemic changes in part of the white matter which "appears slightly prominent for patient's age". General practitioner reports 1. The plaintiff's medical documentation in Exhibit A refers to the plaintiff having an extensive history of cardiac problems including frequent complaints of chest pain and significant diabetes problems. A referral from the plaintiff's general practitioner Dr Nima dated 29 June 2020 refers to the plaintiff having ischaemic heart disease since 25 November 2011, diabetes since 25 June 2012 and anxiety/depression since 2 February 2019. Documents relied on by the defendant show the plaintiff had anxiety/depression problems since 2010. Dr Nima referred to a shoulder injury on 10 June 2020. Earlier documents tendered by the defendant showed the plaintiff having shoulder problems prior to the accident. 2. There are a number of other documents authored by Dr Nima including a medical certificate dated 18 August 2020 stating that the plaintiff was suffering from chronic anxiety and depression including low mood which affected his concentration and attention significantly. See also Dr Nima's letter dated 17 September 2020. 3. GP management plan documents prepared by Dr Nima appear to suggest that the plaintiff's need for regular podiatrist assessments was as a result of the plaintiff suffering from a chronic diabetic ulcer. Report of Dr Pearson 1. In the plaintiff's tender bundle was a report from Dr Gregory Pearson, psychiatrist, dated 6 November 2020. Dr Pearson notes in the report that the plaintiff had not worked since 2009 when: "Under particular circumstances he was run over by a tow truck. He immediately suffered two myocardial infarctions and has essentially been unable to work since … he suffered further injuries when in 2016 he was hit from behind by a motor vehicle. Despite multiple stentings and further complications, in 2019 he had coronary artery bypass graft surgery. His recovery has been complicated by quite severe Type 2 insulin-dependent diabetes." 1. The April 2015 accident is not referred to. Dr Pearson refers to the plaintiff having a degree of shame about his financial position with him being highly anxious about the fragility of his physical state. Reference to the plaintiff being involved in litigation in relation to the 2009 tow truck accident is referred to. Dr Pearson concluded that there was evidence of significant depression as well as depressive themes with a hint of grief and trauma. Dr Pearson prescribed Pristiq. 2. A report of Dr Nima dated 25 November 2020, provides that the plaintiff was suffering "from significant chronic medical conditions including uncontrolled diabetes, depression/anxiety, chronic cardiac condition and complications of cardiac surgery". The 18 April 2015 fall was not mentioned. 3. Included in the plaintiff's bundle were documents from Westmead Hospital indicating that the plaintiff was admitted on 21 December 2020 for chest pain and was managed by Professor Kovoor in the Cardiology Department. It was noted that the plaintiff had a "risk of falls". It is later stated "mobilises by self but is a high falls risk". Later medical records were also tendered, including a report from Dr Nima dated 26 May 2021 stated that the plaintiff had problems at the L5/S1 level which had "started after a fall on 18/04/2015…": Exhibit A page 209. Medico-legal reports 1. The plaintiff included in his bundle which became Exhibit A two medicolegal reports which were obtained on behalf of the defendant. 2. The first report was a report of Dr F Machart, Orthopaedic Surgeon and head of the Orthopaedic Department at Bankstown Hospital. It appears that Dr Machart had limited medical records and radiological reports relating to the plaintiff before him when preparing his report. Dr Machart records a history from the plaintiff of his wife tripping with him being behind her. He states: "He tried to stop her from falling. He fell. He did not feel a great deal of discomfort. There may have been pain in the right knee. He took Panadol. He saw a doctor. Mr Khanna was of the opinion that 16 March 2016 was "the date when the injuries from 18 April 2015 had accrued". In March 2016 he started to be aware of pain in other areas, suffering greater pain in the right knee, pain in the lower back, right hip, and in the neck". 3. Following an examination, Dr Machart referred to various medical records and limited radiological reports. He expressed the opinion that there was no evidence of substantial or long-lasting injury to the plaintiff in the accident. He also expressed the opinion that there was evidence of a substantial pre-existing history of lumbar and hip pain with evidence of a fall and a motor vehicle accident after the 18 April 2015 accident. In relation to the development of symptoms later in March 2016, Dr Machart expressed the opinion that there was no objectively defined evidence that drew a connection between the symptoms reported in March 2016 and the incident on 18 April 2015. He concluded that the incident on 18 April 2015 caused no diagnosable condition or evidence of substantial injury. He was of the view that the entire presentation of the plaintiff represented pre-existing and post-18 April 2015 pathology and degenerative changes. No further treatment or assistance was recommended as there were no injuries from which to recover. 4. Also in evidence was a medico-legal report from Dr D Samuell, psychiatrist, dated 20 August 2019. After setting out an extensive background history, including the 2009 (referred to as 2010) accident, Dr Samuell referred to the plaintiff's diabetes, hypertension, heart disease and other motor vehicle accidents. He noted from the plaintiff's medical file that he was prescribed antidepressants in March 2015, a number of weeks before the April 2015 accident. 5. Although he recorded the plaintiff as having psychiatric problems after the fall at the defendant's premises and the plaintiff denying any mental health symptoms prior to the accident, Dr Samuell noted that the materials he had were uninformative concerning the plaintiff's mental state prior to the accident other than to confirm that he was prescribed antidepressants. 6. He noted the plaintiff having difficulties recalling details relating to the accident with him claiming that he first obtained medical attention for any difficulties that had arisen from the accident eight to nine months later which Dr Samuell noted was incorrect as the plaintiff first sought a consultation with his general practitioner on 12 June 2015. Dr Samuell expressed the opinion that the totality of the medical evidence reviewed by him suggested that prior to the subject accident the plaintiff was medically frail and depressed. He stated that the plaintiff's claim that he was more miserable following the accident should be corroborated with objective information having regard to the plaintiff's poor recollection and pre-existing difficulties. 7. Dr Samuell accepted that the plaintiff had a persistent depressive order but was of the opinion that it was unclear that the depressive order was attributable to the accident given that the plaintiff had received antidepressants only weeks before the accident. He was of the view that it was unclear that the accident contributed to the plaintiff's depression. While accepting that it was possible that medical difficulties that arose from the accident could have aggravated or exacerbated the plaintiff's pre-existing persistent depressive order, Dr Samuell said that it was difficult to express that opinion having regard to the plaintiff's poor recall and the limited medical notes. On balance, Dr Samuell was of the view that the contemporaneous medical notes would suggest that if there was any contribution from the accident from a mental health perspective "it was incremental". He again noted that antidepressant medication was prescribed prior to the accident. The plaintiff's oral evidence 1. The plaintiff was not legally represented at the trial. That caused some real practical difficulties in the plaintiff giving his oral evidence. With the agreement of the parties, the plaintiff was asked non-leading questions by the court. He was also given a full opportunity to say anything further which he wished to say on significant topics such as the 18 April 2015 accident and difficulties arising from the accident. The plaintiff asked questions himself of his wife, Mrs Geeta Khanna, and of Mr Zammit, the other two witnesses called. 2. The plaintiff gave evidence in chief that he was born in February 1962 in India and migrated to Australia in 1995. He has been married to his wife, Mrs Geeta Khanna, since 1985. Prior to 2009, the plaintiff was involved in an import/ export business importing paper to Australia and exporting items to the United Kingdom. The plaintiff stated that he had been on a disability pension since 2013. 3. The plaintiff gave evidence that his health was "absolutely perfect" prior to an incident in November 2009. 4. The plaintiff gave evidence that in 2009 he was "run over" by a truck and struck by it whilst reversing with its tilt tray during an attempted repossession of his car. The plaintiff said that he was also manhandled by the driver of the truck. The plaintiff gave evidence that he was injured in the left knee, the middle back and the left shoulder. In due course, the plaintiff commenced proceedings relating to this incident seeking damages. 5. The plaintiff stated that in December 2009 following the incident, he had what he described as a "double heart attack" which required surgery to insert cardiac stents: T92.16. He said that two to three stents have been inserted regularly over a number of years since 2009. The plaintiff stated that he had open heart surgery in September 2019 and he was not fully recovered from that surgery: T92.31. 6. The plaintiff gave evidence that he suffered from diabetes for 25 years and after the December 2009 accident, took insulin. He said that good exercise was required to keep the diabetes under control. He said that at the time of the 18 April 2015 accident his diabetes was not under control: T92.50. 7. The plaintiff gave evidence that prior to the 18 April 2015 accident he had had minor mental health issues due to his heart condition and was not taking medication for those mental health issues: T94.5. 8. Other than the accidents and conditions referred to above, the plaintiff said that he had been involved in a number of small accidents where he had suffered minor injuries including a motor vehicle accident which he believed occurred in 2014. He said he suffered minor whiplash injuries in the accident. 9. The plaintiff then gave evidence about the accident on 18 April 2015. 10. The plaintiff stated that he and his wife attended a new Masters Home Improvement Store at Rouse Hill in Sydney. Mr Khanna said that he and his wife proceeded to enter the store by foot. As far as he was aware, there was only one entrance to the store. He noted that at the entrance, all of the employees of the store appeared to be wearing what he described as "rubber soled boots". He also noticed that the floor of the store appeared to be quite shiny. Mr Khanna gave evidence that there were no markings indicating that the floor was slippery. He stated that he noted that the whole store was filled with goods. He observed that there was hardly enough space to move around. A lot of customers were present. 11. Mr Khanna gave evidence that at the end of the second aisle there were stacks of chairs in the aisle. His recollection was that there were four to five stacks of chairs with four to six chairs in each stack. These stacks were at the front of the second aisle from where they entered the store. Mr Khanna stated that there was also at the end of the aisle a folding table. He observed that there was a very small gap for customers to walk down and near the aisle because of the amount of goods present: T109.26-T111.2. 12. Mr Khanna noted that the legs of the chairs in the stack came out from the base of the chair at an angle: T111.26. He observed that his wife tripped on the leg of one of the chairs in a stack. He also believed that his wife slipped due to the slipperiness of the floor. Mr Khanna said he tried to save his wife but due to the slipperiness of the floor, the weight of his wife and the suddenness of her fall he could not stop her fall. He attempted to hold his wife as she fell but could not hold her and her upper body whilst falling struck him and he fell to the floor due to her weight being on him: T113.6. Mr Khanna gave evidence that his wife fell on her knees. He said his wife was on the floor and he could not pick her up. His wife complained that she could not stand up and she had pain in her knee and her wrist. 13. Mr Khanna stated that he also fell with his right knee hitting the floor and him falling backwards with his head and shoulders hitting the floor. Due to the curvature in his back, his back did not hit the floor: T113.16-T114.10. Mr Khanna asserted that he was able to get up fairly quickly from the floor but it took him two to three minutes to get up from the floor: T114.17. When he got up, he noticed that his wife was lying on the floor crying. He then noticed that customers had gathered around them and attempted to help his wife to get up. Soon after, Mr Khanna noticed that a female employee from Masters came up and then appeared to retreat quickly before another member of staff came up with an ice pack and water for his wife who was then assisted to sit on a couch. His wife claimed to be very heavy-headed and with pain in her knee: T115.2. Mr Khanna's best estimate was that his wife was lying down on the floor for seven to eight minutes. Whilst Mr Khanna said that he also assisted his wife to get up, he could not provide a lot of assistance due to his heart condition. 14. Mr Khanna said that a member of staff asked whether his wife would like to have an ambulance called but his wife said no as she was not bleeding from any injury. The plaintiff asked whether he could have an incident report in case the next day there continued to be problems with what had occurred: T116.5. 15. Mr Khanna said that he believed "Mr Ross" from the defendant store said that he would have to report the incident to his boss and that they did not have forms with them. Mr Khanna then asked if they did not have a form if he could be provided with pen and paper so he could record what had happened. He also claimed that he wanted to be given the footage from a CCTV camera which was in the vicinity. A person who he identified as Mr Zammit said that he would need to ask the boss. 16. At this time, Mr Khanna said that his wife appeared to be in great pain with ice on her swollen knee. She was lying on the couch and he was talking to the defendant's employees and was standing up. In due course, the plaintiff asked for and was given an incident number. He then wrote out the document which is at page 53 of Exhibit A which he confirmed was in his handwriting. He said that he prepared the letter sitting down. He stated that the letter was completed by him between 35 and 40 minutes after the accident. He said he tried to give it to the defendant's staff but they would not accept it. Mr Khanna said that he and his wife left the store about 45 to 60 minutes after the accident. By this time, Mr Khanna said that his wife was able to walk with assistance from him. He said they then travelled home by car. 17. Mr Khanna gave evidence that either on 19 April or 20 April 2015, he attended the Blacktown Medical Centre with his wife. He said they told the doctor that they had a fall and he noted that his wife's knee was then very swollen. Mr Khanna said that he informed the doctor that he had pain in his neck, back, knee and right shoulder and the doctor referred him for a CT or an MRI scan: T120.38-.50. Mr Khanna said that he saw a doctor at the Blacktown Medical Centre between one and three times relating to his own problems arising from the accident: T121.32. Mr Khanna stated that he then moved to consult doctors at the Rouse Hill Medical Centre at four to five months after the accident. He stated that they transferred to the Rouse Hill Medical Centre because they moved their residence. Whilst at the Blacktown Medical Centre, Mr Khanna said that he was prescribed painkillers and an injection for the pain and was then told that no more could be done for him due to his heavy medication for his other conditions. 18. At the Rouse Hill Medical Centre, Mr Khanna said he was referred for physiotherapy. 19. Mr Khanna gave evidence that four to five months after the accident he was in "terrible pain": T122.48. This is relevant to the severity of his condition at that stage. The pain was in his back, his legs and his hip. He said his right shoulder at that time was not too bad and he believed it had started healing. Mr Khanna stated that the pain severely impacted his life with him not being able to walk or sleep properly and him waking up at midnight with pain in the legs and his back. The pain prevented him having exercise including taking his dog for a walk, washing and cleaning his car and mowing the lawn: T123.34. 20. Mr Khanna gave evidence that he had undertaken these activities prior to the 2015 accident and now relied on neighbours, his children or his wife to undertake the activities. He also stated that his pain had a substantial impact on his social life and he stopped going out. He said he became very depressed and his depression medication was increased as was his heart and painkiller medication. 21. In relation to his dog walking, the plaintiff said that he went daily for between 45 minutes and one hour. Since the accident, a neighbour's son took the dog for a walk three days a week, his wife took the dog for two short walks two days a week and his son took the dog for a walk one day a week. He said he had not resumed taking his dog for a walk. 22. In relation to washing and cleaning his car, he stated that his wife cleaned it a small amount but otherwise his son did it or he paid for the car to be washed. He said the car was washed and vacuumed by him prior to the accident every fortnight for between 45 minutes and one hour. 23. In relation to lawn mowing, the plaintiff gave evidence that prior to the accident he mowed the lawn every two to three weeks and now his son did it. He said he had not resumed lawn mowing. He said prior to the accident it took him 45 minutes to one hour to do the lawn mowing and now being in a house with a smaller lawn, it took about 45 minutes for the lawn to be mowed. 24. In relation to shopping, the plaintiff said that he occasionally assisted his wife with shopping before the accident and now his wife did the shopping. 25. The plaintiff gave evidence that four to five months after the accident, his pain had become much worse than it was immediately after the accident. From the end of 2015 to now, the plaintiff said that his pain has increased substantially in his back, legs and hip. This included cramps in the legs, tingling in the legs and a feeling of instability in his legs. He said he had pain all the time in his back and it was particularly difficult if he bent. He said the pain in his hip had become substantially worse. He noted a slight improvement in the pain in his right shoulder but it was still present. The plaintiff claimed that his depression became worse after the accident and has never improved. He said he felt most of the time that he wished to cry and his pain was beyond a degree which was tolerable. He said he felt helpless and could see no scope to get better. 26. The plaintiff said that he had been to an orthopaedic specialist for consultation and had an MRI completed. He said he was told that he could not obtain treatment from some doctors due to the number of medications he was taking. He was referred for neuropathy but said he was not able to afford the treatment and other recommended treatment because of his financial position. He said he was on a disability pension with his wife acting as his carer. 27. The plaintiff gave evidence that since he fell in 2015, he continued to have significant heart problems which included more stents being inserted in 2017 and open heart surgery in 2019. 28. The plaintiff said he was last employed in September 2009 and had not worked since. He said between 2009 and 2013 he was on unemployment benefits but was approved for a disability pension in 2013. He agreed that after September 2009 he could not work due to his medical condition. 29. Mr Khanna said that he was not able to afford physiotherapy or podiatry which was recommended after the accident. 30. The plaintiff gave evidence that whilst he was injured and felt pain in the 2015 accident, his pain became much more serious from 30 March 2016: T135.20-T136.28. He accepted that he was injured in the accident and felt back pain from that date but his position was "aggravated" and got particularly worse from 30 March 2016. He said he could not recall when he first saw a lawyer in relation to his own injuries in the accident but believed it was in 2016: T136.45. He could not recall the relevant month. 31. The plaintiff was later taken to photographs of the store at pages 45 to 46 of Exhibit A. The plaintiff stated that he took the photographs on 18 April 2015 and at the time of the accident, the stacks of chairs and the bi-folding table indicated in the photographs were in the same place when the accident occurred. The plaintiff said he saw his wife trip. He said she tripped on the leg of the lowest chair in the stack of chairs closest to the bi-folding table with the relevant chair leg being the front left chair leg. 32. The plaintiff also gave evidence relating to drugs which he was prescribed. He gave evidence relating to drugs which were newly prescribed since the April 2015 accident or which had been increased in dosage since the 18 April 2015 accident. The plaintiff referred to Janumet as being a new drug following the accident but accepted in cross-examination that it related to his blood sugar levels in circumstances where the plaintiff has diabetes. In relation to Lantus which the plaintiff said had involved an increase in his dose since the accident, the plaintiff stated in cross-examination that it related to his insulin. In relation to Mirtazapine, the plaintiff said that this was a new drug which he took for depression. However, he conceded that he took the antidepressant drug Cymbalta prior to the accident in April 2015. In relation to Nizatidine, which the plaintiff said he took for pain, he conceded in cross-examination that it could have been an antihistamine for stomach ulcers. In relation to Valium, the plaintiff said in cross-examination that this was a new drug and he had taken it in the last few years. 33. The plaintiff agreed that he had depression since 2009 but claimed it stopped and started again in 2015. This seems to be inconsistent with the prescription to the plaintiff of Cymbalta fairly shortly before the accident. 34. In cross-examination, the plaintiff confirmed that he regularly saw his general practitioner for check-ups and had done so for many years since the 2009 accident. Contrary to his evidence in chief, the plaintiff agreed that he went to his general practitioner as often before the April 2015 accident as after the 2015 accident. He also agreed that his diabetes and heart required regular monitoring and he had regular blood tests. He accepted that his medication was required to be renewed regularly and he saw his general practitioner for that. 35. The plaintiff gave evidence in chief in relation to further treatment which he had sought. In relation to physiotherapy, the plaintiff said this had been recommended by Dr Pang and Dr Nima. The reference was for five physiotherapy sessions costing $95 each which the plaintiff could not afford. In relation to a referral by an orthopaedic surgeon, the plaintiff said his orthopaedic surgeon had referred him to a neurologist for neuropathy treatment but this cost $450-$550 per session which he could not afford. In relation to a podiatrist, the plaintiff said that his general practitioner Dr Nima had recommended that the plaintiff be referred concerning a pain in the leg for five consultations which were $80 each week which he could not afford. The plaintiff said that he also saw his general practitioner for review many times but, as indicated above, agreed in cross-examination that he saw his general practitioner as many times before the April 2015 accident as after. 36. Mr Khanna was extensively cross-examined in relation to his evidence in chief. Mr Khanna was asked a number of questions about his accident in 2009 when he was struck by the tray of a tow truck and was allegedly "manhandled" by the driver. He agreed that he hurt his left knee in the incident. He could not recall giving evidence in chief that the middle of his back was also injured (see T91.35-.42). However, Mr Khanna stated that he had hurt the area of his back about five inches below his neck between his shoulder blades. He could not recall whether he had injured any other part of his back in the 2009 incident: T142.11. Mr Khanna stated that he injured his left or right shoulder but could not recall whether it was both shoulders. In his evidence in chief, he had indicated that he believed he had hurt his left shoulder: T92.4. The plaintiff claimed that he had "almost" recovered from the 2009 injuries at the time of the accident in 2015. This was inconsistent with documents prepared by the plaintiff later, which will be discussed further below. The plaintiff stated that after April 2015, he continued to have pain in both his knees with the pain in his right knee being more than the pain in his left knee. He confirmed that he had hurt his right knee in the 2015 accident. The plaintiff then denied having right knee problems before 2015: T143.25. 37. In relation to his shoulders, the plaintiff asserted that his right shoulder had recovered about 60% from the April 2015 accident. He could not recall whether his left shoulder problems arose from the 2009 or 2015 accidents despite his evidence at T92.4. 38. The plaintiff agreed that the injuries arising from the 2009 incident were "fairly significant" injuries. The plaintiff was then extensively cross-examined in relation to written complaints he had made concerning injuries arising before the 2015 accident including those arising from the 2009 incident. At Exhibit 1 page 78 was a letter from the plaintiff to Allianz Australia Insurance Ltd dated 26 July 2012 which stated: "After the hit by the driver I started suffering pain at my Lower back. Shoulders and left leg where I was hit repeatedly by tilt tray". The plaintiff agreed that the document was prepared by him and sent to Allianz. When it was put to the plaintiff that he claimed he had injured his lower back in the 2009 incident, the plaintiff claimed that he was using layman's language and that this included his hip and buttock area. It was put to the plaintiff that this letter showed he had suffered pain in the lower back from the 2009 incident and he rejected this T146.43. He said the pain was more in the middle of his back between his shoulder blades which he regarded as being the lower back. 39. The plaintiff gave evidence in relation to a photograph which became Exhibit B in the proceedings which he said was taken in 2009 and showed his back. He stated that the red marks on his back near his right shoulder and upper back were a result of the tow truck driver hitting him towards a wall in 2009 and not contact with the truck itself. 40. Reference was made to the plaintiff's evidence that he took Nitrolingual which was a pump action spray. He said it had been prescribed for him by the Cardiology Department at Westmead Hospital and was for "blood thinning" to assist with the flow of blood to his legs. Although the plaintiff claimed that his diabetes had got worse since the April 2015 accident, he agreed that he had suffered from diabetes for 25 years. The plaintiff also agreed that he required regular review and consideration of the medication relating to his heart condition and that he saw a cardiologist regularly. 41. The plaintiff agreed that he had problems going from downstairs to upstairs. He said this was due to right knee pain but also shortness of breath. He said he did not suffer from fatigue due to heart problems all of the time. He also agreed that he had problems walking short distances due to his heart problems. 42. The plaintiff was cross-examined about his list of "many other diseases" at Exhibit 1 page 79 including that he was "in terrible pain all the time". The plaintiff agreed with the descriptions in the document relating to the 2009 incident, including that he was not stable mentally but said that this did not equal being incapacitated. He said his depression complaints started from after the 2009 accident. The plaintiff agreed that the incident had also increased his diabetes problems and depression. In relation to the list of soft tissue injuries at Exhibit 1 page 80, the plaintiff confirmed that he regarded these as arising from the 2009 incident. They included "neck injury", "unable to move neck frequently", "pain under armpits and shoulders" and "all the time headache". In relation to the phrase "the backbone injury", the plaintiff denied that this was intending to refer to the whole of his backbone including the lower back. He said this was intended to refer to the injury between the shoulder blades. The plaintiff also denied that the complaint "unable to stretch" indicated low back pain. The plaintiff stated that the reference to "leg injury" was referring to his left leg consistent with his claim of a left hip injury. He said the reference to "pelvis injury" referred to pain in the area. He denied that the tray had hit his lower back. He said the reference to "shoulder injury" and "thigh injury" was referring to the left thigh and shoulder. 43. The plaintiff was then taken to a document entitled "Description of Accident" at Exhibit 1 page 82. He confirmed it was signed by him on 26 July 2012. He agreed the list of "diseases" and "injuries" was very similar to that at Exhibit 1 pages 79 and following. In relation to the claim that the plaintiff was "in terrible pain all the time", the plaintiff agreed with this but did not recall where. The plaintiff was then taken to a further document relating to his injuries in the 2009 accident at Exhibit 1 page 85. He confirmed that he claimed a neck injury which he was still suffering from in 2012, three years after the accident as well as headaches. The plaintiff agreed that he claimed that he was in the habit in 2009 of taking morning and evening walks which he was unable to do. He said this was due to problems with his left leg. In relation to the claim that he experienced "difficulties with sleep and relaxation as my both shoulders are frozen", the plaintiff claimed this was due to his diabetes including his diabetes becoming worse as a result of the 2009 accident. This assertion is difficult to accept in the absence of medical evidence supporting it. 44. The plaintiff was then asked about a document entitled "Estimated Earnings Loss" (Exhibit 1 page 87). The plaintiff agreed that he made significant claims for damages in this document arising from the 2009 accident totalling about $3.77 million. He also agreed that the 2009 incident involved very significant injuries to him with long term effects. It is noted at Exhibit 1 page 88, that the plaintiff states: "The plaintiff was incapacitated as a result of the accident". The plaintiff said he had two heart attacks as a result of the incident and three stents inserted. He agreed he brought a claim in the District Court relating to it and that the document at Exhibit 1 page 303 was an affidavit which he prepared in 2020 in relation to the claim which he had filed in 2019. The plaintiff was taken to an Amended Statement of Claim at Exhibit 1 page 310 where he listed his particulars of injury. These included a neck injury, a back injury and injury to the shoulders and legs on the left-hand side. The plaintiff agreed that as at 8 May 2020 (Exhibit 1 page 316) he was still claiming that arising from the 2009 incident he was suffering from neck pain, a back injury (between the shoulder blades), and injuries to the left shoulder, left leg, left hip and left thigh. He also agreed that he was claiming that he needed physiotherapy as a result of the incident. The plaintiff agreed with his claim at Exhibit 1 page 312 that following the incident, he suffered from a double heart attack and he continued to have heart problems with further surgery including stents. The plaintiff accepted that he claimed that as a result of the 2009 incident his heart problems had worsened which led to surgery. The Amended Statement of Claim also asserted psychological and mental injuries: Exhibit 1 page 311. Mr Khanna agreed that the 2009 incident proceedings resolved in 2020. 45. Mr Khanna was then asked about a motor vehicle accident in which he was involved on 16 May 2014. He agreed that he had seen lawyers in relation to the claim and signed a statutory declaration in relation to a personal injury claim form concerning the accident: Exhibit 1 pages 174 and 185. The form referred to injuries to the neck, shoulder, lower back and an exacerbation of an injury to the right and left hips, thighs and legs, toes and sole. While initially asserting that he just signed the form and trusted his lawyer, after some questioning Mr Khanna accepted that he must have read the statutory declaration before signing the document. He could not recall which shoulder he claimed was injured in the accident. In relation to the reference to a "lower back" injury, the plaintiff agreed that he had an injury but it was below the shoulder blades but above the beltline in the middle of the back. The plaintiff claimed that the accident had worsened his left leg and hip problems but the injury to his right leg and hip was a new injury. He could not recall what was meant by the injury to "legs". 46. The plaintiff was asked questions in relation to the answer to Question 26 in the form which referred to "pins and needles". He could not recall whether this referred to pins and needles in the legs, shoulders or his feet. 47. The plaintiff was then asked about his consultations with doctors from the Blacktown Medical Centre relating to a number of accidents. 48. The plaintiff was first asked about consultations arising from the 2009 accident. He agreed that he saw a doctor on 2 November 2009 complaining about multiple injuries after being hit by a truck. In relation to the consultation note referring to "pain along entire spine and LBP (mild tender over the lower lumbar region)", the plaintiff said that he did not recall this and doubted it. He agreed that the doctor medically examined him but could not recall whether he examined his lower back along the beltline. The plaintiff said the doctor referred the plaintiff for a CT scan. The plaintiff said he could not recall complaining of pain to the lower back. He did say that he was suffering pain in the back. He agreed that he continued to see doctors from time to time at the Blacktown Medical Centre in relation to his complaints. 49. The plaintiff was then cross-examined about other entries in the consultation notes which referred to back pain or lower back pain or sciatica. See the entries for 10 January 2014 (Exhibit 1 page 111) and 30 August 2013 (Exhibit 1 page 49). The plaintiff said he could not recall telling the doctor he had shooting pain from his buttocks down his leg but did recall taking Lyrica for pain. The plaintiff could not recall mentioning lower back pain but accepted that he referred to back pain. This is inconsistent with various entries in the notes including entries in 2013: Exhibit 1 page 49. 50. The plaintiff was asked how long he had been suffering from pins and needles in his left arm as referred to in a consultation note entry for 18 December 2014. The plaintiffs said that he started having problems after the 2009 accident in his arms. He claimed that the problems remained for a number of years and then started improving and later came back again: T175.47. The plaintiff could not clarify the dates when this occurred: T175.49. 51. The plaintiff was then taken to a consultation note entry for 11 February 2015, some two months before the April 2015 accident, where it is stated: "numbness down the left arm". Mr Khanna said he could not recall whether that was similar to the problems he was having in December 2014 with pins and needles in his left arm: T176.13. After a question from the court, the plaintiff claimed that he had no numbness down his left arm a few months before the April 2015 accident: T176.34. This seems to be inconsistent with the consultation notes including the history provided for the CT scan of the cervical spine requested on 20 April 2015: see Exhibit A page 54. The plaintiff suggested it could be only "temporary". Why this was so was unclear. 52. The plaintiff was then taken to a consultation note for 13 April 2015, five days before the accident, where he was complaining of numbness in the fingers of his left hand. The 13 April 2015 consultation note refers to "Numbness left 3rd-small fingers. CT shows disc protrusion pressing C7-T1": Exhibit 1 page 39. The plaintiff said that the entry must be correct because his doctor referred him to a neurosurgeon but he believed the numbness in the left arm could be from heart problems or perhaps other reasons. The plaintiff accepted that he had gone for a CT scan which he discussed with his doctor who then referred him to a neurosurgeon: T177.37-T178.16. The plaintiff said he was not able to afford to go to the neurosurgeon. 53. The plaintiff claimed again that he had gone to the Blacktown Medical Centre one or two days after the 2015 accident for a consultation. He said he could not recall the name of the doctor who he saw. The plaintiff was taken to Exhibit A page 54 which was a report on a CT scan of the cervical spine which indicates that it was requested on 20 April 2015. The report referred to a clinical history as follows: "2 months of radicular symptoms radiating to C8': T180.50-T181.2. The plaintiff said that symptoms radiating to his neck area "could be possible": T182.6. The plaintiff stated that he has not claimed that his neck was hurt in the 18 April 2015 accident: T182.8. The plaintiff agreed that it could be possible that he had symptoms radiating "to his neck" for two months prior to the accident: T182.21. The plaintiff said he could not recall in early 2015 complaining of numbness down his left arm: T182.43. 54. The plaintiff was then taken to the photograph at Exhibit A page 45. The plaintiff claimed that he and his wife were travelling in front of the chair from the left to the right of the photograph. Although the plaintiff could not recall clearly, he believed his wife was on his left side. He did not recall whether his wife was walking in a straight line. The plaintiff claimed, in answer to the suggestion that he did not see his wife trip on anything and only saw her "tumbling forward", that he did see where she tripped. Despite there being a lot of people, the plaintiff said that he saw her left leg trip on the front left chair leg in the stack of chairs closest to the end of the aisle. He could not recall whether there were people walking in front of them before the fall. He accepted that he and his wife were walking at an angle across the front of the aisle. 55. The plaintiff denied that in the photograph Exhibit A page 45, he and his wife were walking from the aisle in the direction towards the camera. He also denied walking down the aisle near the display entitled "light globes" in the photograph which is Exhibit A page 44. The plaintiff said he and his wife turned right soon after walking into the entrance of the shop. The plaintiff denied that he was walking slightly behind his wife, about a metre to a metre and a half away from her and that she was looking up at the display while she was walking. He accepted, importantly, that his wife tripped and fell forward suddenly and quickly: T230.7. He denied that he did not attempt to save his wife from the fall because he had no time to save her having regard to the suddenness of her fall: T230.17. The plaintiff denied that his first contact with his wife was after she fell to the ground and not when she was falling: T231.10. 56. The plaintiff asserted that the aisle was not very wide where his wife fell and there were many customers. See also Exhibit A pages 47-50. 57. The plaintiff was asked whether he believed Woolworths was negligent immediately after the accident. The plaintiff said that he believed Woolworths was negligent but not immediately following the fall: T233.3. He said he requested an incident report in case he and his wife had major injuries arising from the accident as proof. He also took photographs. Inconsistently, the plaintiff then in answer to a question from the court stated that he believed from the date of the accident that the placement of the stack of chairs on the day breached a duty of care owed: T234.4. The plaintiff gave the following evidence on this point: "Q. You wanted Mr Zammit, let's start with him, to admit fault didn't you? A. I start with Mr - not with Zammit, I don't recall whether it was Mr Ross or Mr Zammit. Q. But you wanted one of the employees of Masters to admit fault for your wife's accident, didn't you? A. Not admit the fault of, I want them to admit that they have kept the products wrongly, where not only my wife, anybody can trip or fall or slip. Q. You saw that as a breach of their duty of care didn't you? A. And I - later on I found that it is a breach of a duty. Q. When did you find that out? A. Later on when I studied more and more of the case for the matter from the lawyers where I tried to engage, where my wife she was trying to engage a lawyer, from their conversation we found that that is a breach of the duty, and that's why they accepted to take the matter and the matter was filed in the Court. Q. That's your wife's matter? A. My wife's matter. Q. But you knew from day 1, the day of the incident, that stacking chairs and tables in your mind was a breach of Masters' duty, responsibility to its customers? A. Not, not to my mind-- HIS HONOUR Q. Just one moment. HIS HONOUR: Do you saw knew or believed? GAMBI: Believed. HIS HONOUR Q. It's put to you that you believed from the date of the accident that the stacking of the chairs as indicated on the day of the fall was a breach of the duty of care? A. Yes." (T233.14-T234.4) 1. The plaintiff was asked questions about the employees of the defendant who came to his wife's assistance. He said the first employee was a female employee and then a male employee came. He denied that Mr Zammit was walking behind him and his wife at the time of his wife's fall. 2. It seems difficult to see how the plaintiff could deny this as presumably he would be looking ahead. However, he asserted that there was no male employee from Masters behind him and his wife. A male employee came later. He agreed that when Mr Ross Atherton arrived from Masters that he had not seen what had happened. 3. The plaintiff was then asked questions about his evidence in chief that people working in the store were wearing "gumboots". He said that the gumboots were rubber boots that came three to four inches above the ankle bone. He could not recall whether Mr Atherton or Mr Zammit was wearing gumboots at the time. 4. Despite there being no consultation notes for the day in evidence, the plaintiff said that he went to see his doctor at the Blacktown Medical Centre on 19 or 20 April 2015 and was referred to a CT scan of the cervical spine: see Exhibit A page 54. He said he went with his wife to the doctor. When it was put to him that the scan only related to his neck, the plaintiff said he believed it to be of his neck and back. He disputed the clinical notes of there being "2 months of radicular symptoms radiating to C8". He denied having neck pain for two months prior to the accident. No lumbar spine report was in evidence ordered by his general practitioner on or about 20 April 2015. 5. The plaintiff confirmed that the first time he went to the Rouse Hill Medical Centre after the accident was on 12 June 2015. He agreed that at the first consultation, he complained about injuring his right knee and was advised to take painkillers. He accepted that Dr Pang had examined his knee on that occasion. He denied that he fabricated the complaint and that his knee was not injured. He said he could not recall whether his knee was swollen. He agreed that he next saw his general practitioner on 24 June 2015 complaining of left arm issues with tingling and numbness in his fingers and neck problems. He denied that this was very similar to the complaints he had made on 18 December 2014 to his general practitioner: see Exhibit 1 page 41. The plaintiff claimed he also complained to his doctor of pain to his back arising from the accident. There is no consultation note recording this. 6. The plaintiff agreed that on 9 July 2015 he continued to complain of right knee pain arising from the April 2015 fall but said he also complained about his back and neck. The plaintiff was referred to a consultation on 22 October 2015 (Exhibit 1 page 36) where he agreed that he only complained about right knee pain. He also agreed that he went to his general practitioner for various consultations between August and December 2015 relating to general health issues. 7. The plaintiff was taken to an entry from the Rouse Hill medical notes for 25 February 2016 which stated: "Still having low back pain and worsening right shoulder pain". It was put to the plaintiff that this was the first mention he had made to his general practitioner of low back pain and it was made some 10 months after the accident. The plaintiff said he could not recall this. He also could not recall telling Dr Pang prior to 25 February 2016 that he had low back pain arising from the 18 April 2015 accident. 8. The plaintiff was asked about a fall on 2 April 2016: see Exhibit 1 pages 35 and 221. The plaintiff accepted that he had fallen but denied being intoxicated. He said he agreed he fell onto his back and side but could not recall whether this aggravated his back pain. 9. The plaintiff accepted being in a motor vehicle accident in August 2016 where he had struck the left side of his head and was coughing up blood: Exhibit 1 page 34. He agreed that he complained of whiplash injuries, neck and shoulder pain, headaches, pins and needles to the left arm and lower back pain. He agreed that his back pain and stiffness was worse after the motor vehicle accident. 10. The plaintiff was asked whether his shortness of breath prevented physical activities. The plaintiff said that he could do no physical activities due to his shortness of breath and his aches and pains. He accepted that his heart condition prevented physical activities and that this also caused him some times to mumble and repeat things. He claimed that he was referred to a psychologist and a neurologist but he was unable to afford treatment from them. 11. The plaintiff was taken to a report of Dr Pearson, psychiatrist, dated 6 November 2020. There is no reference to the April 2015 accident in the report. The plaintiff claimed that Dr Pearson forgot to refer to the April 2015 accident in his report. The plaintiff agreed that he told Dr Pearson that he had not worked since 2009 due to two myocardial infarctions. 12. The plaintiff accepted that he had been referred by Dr Nima to a physiotherapist, but denied that he has ceased treatment as the physiotherapist thought it was inappropriate with his condition being secondary to diabetes. The plaintiff said that he ceased seeing the physiotherapist because of the cost involved. 13. The plaintiff was asked about his evidence in chief that 30 March 2016 was the date when he thought that his condition was of such severity that he should look at commencing proceedings. He was asked what happened on or about 30 March 2016 that led him to that view. He stated as follows Q. What happened on or about 30 March 2016 that caused you to come to that realisation? A. My - all the pains and depressions, they were so much aggravated and I was told by the doctor that - this is all after the, all from the 2015 fall. So that, believed me that I must go for the proceedings, because I requested number of times to the Woolworth to compensate, something like that, but they said that, "We'll give you only thousand dollar as a gesture" or something, whatever it is. And out of that, they minus some photocopying money and - which was not in fact actually right..(not transcribable) (T263.7-.15). 1. Mr Khanna agreed that he had been referred for CT scans of his neck before April 2015 but did not recall the details: T263.26. The plaintiff accepted that a doctor at the Rouse Hill Medical Centre, Dr Schindler, referred the plaintiff for a CT of the cervical spine because he was having neck pain prior to the April 2015 accident: Exhibit 1 page 158 (22 May 2014). Another CT scan of the cervical spine was sought in December 2014 with a history of "paraesthesia left arm with certain posture": Exhibit 1 page 188. A document at Exhibit 1 page 192 dated 21 February 2015 from Rouse Hill Radiology refers to a CT scan of the cervical spine with a history of "pins and needle feeling on left 3.4.5 fingers". The plaintiff did not recall this. See also the medical consultation entry where it appears the radiology referral was arranged at Exhibit 1 page 39. 2. The plaintiff was asked questions in relation to his claim for past and future domestic assistance. He agreed that he claimed that his wife and son had provided him with assistance. However, in cross-examination, the plaintiff denied that his wife had provided him with domestic assistance since 18 April 2015: T266.6. He said her assistance was limited to bringing the groceries, cooking and helping the plaintiff to wash: T266.5. The plaintiff claims that he was doing a "little bit" of domestic assistance before the accident in April 2015: T266.11. He later claimed that his son provided services but was paid by the plaintiff and his wife: T267.8. This should be contrasted to the plaintiff's claim at Exhibit A page 142. The plaintiff stated that his daughter married in 2009 and left home and his son moved out in 2017. 3. The plaintiff confirmed that his son mowed his lawn for him now. He also confirmed that his son was the person who generally mowed the lawn prior to 2017: T270.16. The plaintiff said that his son also did garden maintenance as he (the plaintiff) was not capable of doing anything: T270.29-271.4. The plaintiff claimed he had also made some payments but he did not have records of those payments which he claimed had been lost in moving. 4. Inside the house, the plaintiff gave evidence that he did cooking but not the domestic cleaning. He said that he and his wife engaged people to undertake the domestic duties on their behalf: T271.12-T272.8. In relation to groceries and obtaining medications, he said his wife undertook the task in 2009 after the plaintiff's incident in that year: T272.30-.36. 5. The plaintiff's evidence seems to indicate that gardening and lawn duties were undertaken by the plaintiff's son before he moved out in 2017, cleaning duties were undertaken by other persons from 2013 and cooking and the remaining domestic duties including shopping were undertaken by the plaintiff's wife from 2009. Oral evidence of Geeta Khanna 1. The plaintiff called as a witness his wife Mrs Geeta Khanna. She stated that she and her husband went to the Masters store as they had seen advertising in some local newspapers. After entering the store, Mrs Khanna said that they turned right and were walking when she had a fall. 2. Mrs Khanna said she was walking with her husband beside her and there was a stack of chairs and "I tripped on those chairs": T279.44. Mrs Khanna continued that she tripped "from those chairs being a stack of chairs of maybe 6 to 8 chairs": T279.50. Mrs Khanna said that her "left foot or maybe" "got stuck on the bottom of the chairs" "because they were very high and they were out of the way": T281.19-.29. 3. Mrs Khanna was then shown the photographs at Exhibit A pages 45-47. When looking at the photograph at page 45 of Exhibit A, Mrs Khanna identified that she tripped on the left front leg of the bottom chair in the stack of chairs closest to the end of the aisle: T283.1-.25. 4. The plaintiff asked Mrs Khanna from which direction she was coming before she tripped. The witness indicated with her hand that she and her husband were walking to the right of the stack of chairs in a straight direction and not in the aisle: T285.44-.50. They were going in the direction towards the table: T286.5. 5. Mrs Khanna then gave the following evidence: "Q. Did you fell - did you trip from the chair? A. Yeah. Q. And you had a-- A. I fell on my knees. Q. On your knees? A. Yeah. Q. Did your husband, which is me, of course-- A. Yeah, you were with me." (T286.30-.40). … "Q. What did I do? A. Yeah. When I fell, there were people over there and my husband was beside me and he just started to helping me to get up from the floor, because I was very badly on the floor, on my knees. So he help me get up, to save me from the fall." (T287.32.34). … "HIS HONOUR Q. So after you began to fall, did you observe Mr Khanna do anything? Don't make it up, we're only interesting(as said) in your observation, what you actually saw with your eyes. What did you see, if anything? A. Yeah, when, when I fell on the floor, I was on my knees and I was badly hurt. My husband came and he tried to pick me up but I told him "I can't get up, it's very painful". So he, he just sat - fell down or sat - he fell - I think he fell as well. He fell on the ground as well. Because he wanted to pick me up but I was not able to get up, it was really badly, badly hurt. Q. So after your fell on the ground-- A. He fell as well. Q. Was it after you had this conversation you referred to? So you said you fell on the floor, "I was on my knees, my husband tried to pick me up, I said, 'No', I was"-- A. Not able to get up, yeah. Q. "I was not able"-- A. Yes. Q. "I am not able to get up", and then he fell down, did he? A. Yes, he fell down in order to help me get up. Q. "He fell down in order to help me"? A. To help me get up, yep. Q. And that was after you said, "I am not able to get up"? A. Yep." (T290.12-.41). 1. Mrs Khanna said that no-one in the store tried to save her fall: T291.4. She clarified that she meant no-one "from" the store: T291.10. This is contrary to Mr Zammit's evidence. She then stated that her husband was beside her and he helped her to get up and he fell too: T291.20. 2. Mrs Khanna then gave evidence that she was provided assistance after the fall when she was on the ground from people around her and from the store which included an ice pack: T292.14. Mrs Khanna said her husband requested an incident report relating to the accident but this was not provided by the employees at the store. She stated that her husband wrote something and asked the employees to sign it but they refused to sign it. 3. Mrs Khanna stated that the chairs where she had a fall were off the aisle on the end of the aisle. She said there was not really space to walk for the customers: T296.24-.29. 4. In cross-examination, Mrs Khanna was asked whether she saw the plaintiff taking the photographs at Exhibit A pages 44-52. Mrs Khanna said that she was in great pain and saw the plaintiff leaving her but did not recall what he was doing: T303.43. 5. Mrs Khanna was taken to the photograph at Exhibit A page 44 which showed a blue trolley near the stacks of chairs. She stated that she did not believe that the trolley was there at the time she fell, as she fell "with these chairs": T304.14-.23. Mrs Khanna said that after she and her husband entered the store they turned right: T304.34. Mrs Khanna said that she did not think that before the fall she and her husband were walking up the aisle shown in the photograph at page 44 towards the trolley: T305.8; T305.46. 6. In the end, Mrs Khanna said that she did not recall whether she and her husband were walking up the aisle towards where the trolley is situated in the photograph at Exhibit A page 44 just before she fell: T306.6. Mrs Khanna denied that she was coming up the aisle in the direction of the trolley in the photograph and "cut the corner" and that is why her foot clipped the leg of the chair: T306.31. She said she was sure of this: T306.39. Mrs Khanna said that after she entered the store and turned right, she walked towards the stack of tables shown in Exhibit A page 44: T307.12. She said she was paying attention to where she was walking. When asked why she walked into the chair, Mrs Khanna denied that she walked into the chair and said: "Chair were out of the thing and I tripped over from the chairs": T307.22. 7. Mrs Khanna was then taken to the photograph at page 45 of Exhibit A which showed four stacks of chairs and a stack of tables with one table opened in front of the stack. Mrs Khanna said that she did not recall whether those items were in the position shown in the photograph when she had her fall: T308.24-.29. Mrs Khanna said that she was walking near the corner of the chair in the stack towards the white table: T310.33-.48. Mrs Khanna said she was walking on the left side of her husband immediately before the accident: T311.26. Mrs Khanna stated that she was looking around at the goods on display but was watching where she was going: T312.49. Mrs Khanna said that she did see the chairs in question but stated: "The floor was slippery and that's what I tripped over and I fell": T313.44. Mrs Khanna confirmed that she saw the stack of chairs immediately before the accident: T315.1. It was put to Mrs Khanna that, having seen the chairs, if she had kept a proper lookout she could have avoided them. Mrs Khanna said she could not avoid the stack of chairs because the legs were not straight and they came out at an angle: T315.13. Mrs Khanna importantly agreed that she could have seen the legs coming out from the stack of chairs a long distance away as she approached the stack of chairs: T316.49. 8. It was put to Mrs Khanna, in the light of the photograph at page 47 of Exhibit A, that the area that she was walking in was fairly wide and open. Mrs Khanna agreed that from the photograph it looked wide and open but on the day it was very busy with people. She said there were people behind her and in front of her but there were not people immediately in front of her: T322.17. Mrs Khanna agreed that as they were approaching the chairs and the table in question it was a wide open area: T322.31. Mrs Khanna then said that as she and her husband were walking towards the stack of chairs and the table she did not recall whether there was anyone in front of them walking in the same direction: T323.13. Mrs Khanna agreed that the chairs in the stack were a very different colour to the floor and that the white table was a different colour to the floor: T325.50 and T326.5. 9. Mrs Khanna was then asked a number of questions in relation to who undertook domestic and like duties in her house before and after the accident. Mrs Khanna agreed that prior to the accident she was fit and healthy and was able to do whatever was necessary to be done around her house. She said she looked after the house including undertaking the cooking. Mrs Khanna said that she mostly did the cooking but occasionally her husband helped. In relation to grocery shopping, she said that both she and her husband undertook the shopping. 10. Mrs Khanna gave evidence that in her house was a dog. She stated that this was her son's dog but when he was home he did not often look after it. Mrs Khanna said her son moved out of home in 2017. Prior to that, he occasionally took the dog for a walk but now when he visits he takes the dog for a walk. She said her son visits once or twice a week. 11. Mrs Khanna stated that prior to the April 2015 accident, she looked after the house and did the cleaning, cooking and laundry. She stated that her husband previously mowed the lawn outside. This is different to Mr Khanna's evidence. At the date of the accident, Mrs Khanna said she was not working. Following the accident, when she injured her knees, she could not undertake certain activities. 12. Mrs Khanna was asked about an allegation by her in her claim against Woolworths that her son assisted her seven hours a week. Mrs Khanna said that her son was always helping her in undertaking domestic activities up to 2017 when he moved out. This included house cleaning, laundry, cooking and buying groceries: T340.49; T341.5-.12. Mrs Khanna confirmed that the plaintiff had serious injuries in the 2009 accident and he was not the same person since 2009 either physically or emotionally. Mrs Khanna said that her husband improved physically after the 2009 accident in due course and was able to take the dog for a walk. Prior to the April 2015 accident, Mrs Khanna said that she took the dog twice a day for a walk for about 5km per day. She said she was unable to walk the dog since the accident: T343.13-.22. Since her son moved out, Mrs Khanna said that a young neighbour offered to walk the dog twice a week. 13. Mrs Khanna confirmed that she had received assistance from her son and daughter-in-law since the accident in April 2015 as well as from friends and neighbours. When her husband was having open heart surgery, neighbours mowed their front lawn: T343.44. Prior to 2019, Mrs Khanna said that she was able to get by with the assistance of her son and his wife but occasionally engaged a cleaner as she was not able to do it. Her husband was also not able to help: T344.49. Mrs Khanna confirmed that her husband suffered from shortness of breath and was tired and was unable to do much. Her husband's shortness of breath condition was significant prior to the 2019 operation but now it was less frequent. 14. She confirmed that her husband had diabetes issues for 25 years and this contributes to his health problems: T346.35-.50. She also referred to the plaintiff suffering back pain "from the injury": T346.50. 15. In re-examination, Mrs Khanna confirmed that due to her standing problems she called people sometimes to clean the house. She also said that they had to call people to mow the lawn. On some things she said they had to ask for volunteer help. In relation to washing the car, she said she took it out or her son did it. Oral evidence of David Zammit 1. Oral evidence was given by Mr David Zammit. Mr Zammit said he was the Operations Manager and Assistant Store Manager at the Rouse Hill Masters store as at 18 April 2015: T377.38; T386.49; T401.14. He stated that on the day of the accident the store manager, Mr Sean D'Cruz, was away and he was responsible for the store: T390.17. Mr Zammit gave evidence that his duties included customer service, making sure the store was operational in terms of stocking shelves and managing the stores' 130 staff: T378.2. He confirmed that all staff owed a duty of safety to the customers: T378.19. Mr Zammit said the staff including him undertook a store inspection with a checklist before the store opened and continued to make inspections to make sure the store was hazard free during the day: T391.15. Hazards included fallen items and items spilt on the floor: T378.27-T379.4. The goods placed in the aisles were also checked during the day: T379.11-.14. 2. Mr Zammit said he provided the information for the incident report which was prepared on his behalf by Mr Atherton who completed and entered the report in the system: T395.31-.40. 3. Mr Zammit was taken to the photograph at Exhibit A page 45. He said the stacks of chairs were placed at the end of the aisle as part of the promotional display. He said he could not recall if he was involved in the decision to place the chairs and table in the place indicated in the photograph at page 45 of Exhibit A. He expressed the opinion that customers could freely walk, hazard free, at the end of the aisle. He also stated that in his view the stacks of chairs and table at the end of the aisle shown in the photograph on page 44 did not constitute a hazard to the customer and were not obstructing anyone. He said there was ample room for a customer to navigate: T381.4-.38; T385.44; T391.42-T392.21; T392.35-T393.5. 4. Mr Zammit said he was walking about 1.5 metres behind Mrs Khanna down the aisle when she fell: he gave evidence that he saw her fall, she appeared not to be looking where she was going, she attempted to brace herself by holding onto the white table, he attempted to stop the fall but was unsuccessful and she fell on her knees: T387.11; T387.25. He said he asked her if she was alright but she did not respond. He stated that Mrs Khanna was helped by him to a lounge in the furniture area some 7-8 metres away and first aid was given by Mr Ross Atherton: T403.18. Mr Zammit said he did not see the plaintiff fall: T387.32. Despite an apparent inconsistency between the incident report and his diary entry, Mr Zammit said he did not now recall what Mrs Khanna tripped on: T393.31; T397.37; T398.27. However, he later confirmed he prepared his diary entry at Exhibit A page 32 on the day of the accident. This said the plaintiff tripped on the leg of the white table. 5. Mr Zammit gave evidence that he inspected the area straight after the fall and found no debris in the area. See also Exhibit A page 28; T399.4; T433.41. 6. Mr Zammit confirmed that the end of the aisle area shown in Exhibit A page 45 looked like as it appears in the photograph on the day of the accident as far as he could recall. Mr Zammit said it was standard procedure at the time to place goods at the end of the aisle for promotional purposes. He said it was a designated promotional area. He did not regard the placement of goods there as a hazard. He also stated that in his view there was no need for a sign to state and warn customers: "This is a hazard area". He said he did not regard the stacks of chairs indicated in the photographs (such as Exhibit A page 45) as being outside the designated promotional area and a hazard: T423.1-.5; T424.4-.7; T424.28; T426.50-T427.2. 7. Mr Zammit said there were CCTV cameras installed in the store at the time but he did not recall whether they were operational at the time: T401.44. The evidence is that there was no CCTV film of the accident available: see Exhibit A page 27. 8. In cross-examination, Mr Zammit stated that when Mrs Khanna fell he did not see other people other than himself go to her immediate assistance, including the plaintiff: T437.4-10. He also confirmed that when he was walking behind Mrs Khanna she was walking up the aisle where the man on the left is indicated in the photograph at page 45 of Exhibit A. He said Mr Khanna was about 1 ½ - 2 metres in front of Mrs Khanna: T437.29-38; T438.21-.41. 9. Mr Zammit gave evidence that his diary note at Exhibit A page 32 was prepared on the day of the accident: T439.11; T439.31. He said he currently could not recall today what Mrs Khanna tripped on. The defendant's evidence Exhibit 1 1. The folder of materials tendered by the defendant which became Exhibit 1 in the proceedings contained extensive medical reports, notes and correspondence relating to accidents, injuries and medical conditions of the plaintiff both before the 18 April 2015 accident and after it. 2. It is unnecessary for the purposes of these proceedings to set out in great detail the plaintiff's lengthy medical history. However, in my view the material in Exhibit 1 establishes the following matters: 1. The plaintiff was involved in an incident in November 2009 when he was allegedly run over by a truck driven by a person attempting to repossess the plaintiff's motor vehicle and later struck by the tray of that vehicle. The plaintiff claimed serious and ongoing injuries in relation to this incident including to his lower back, shoulders, left leg, neck, hip, pelvis and thigh as recorded in the relevant documents: see Exhibit 1 pages 78, 85, 138-143, 148 (2/11/09). The plaintiff claimed he was incapacitated as a result of injuries in the accident and could not resume his business after the accident: Exhibit 1 pages 88 and 90. 1. Following the incident in November 2009, the plaintiff suffered two heart attacks in December 2009 which required surgery over a number of years (including stents and angioplasty), management and rehabilitation and which led to the plaintiff suffering ongoing regular heart problems leading to frequent chest pains and hospital admissions: see Exhibit 1 pages 48 (28/2/14), 50 (25/11/11), 72 (23/11/11), 73 (24/1/12); 79; 83; 85, 93, 97 (20/1/14); 99 (8/2/14); 103 (26/2/14); 163 (23/6/14 - reference to 13 coronary artery stents); 169 (22/7/14); 186 (12/11/14); 226 (16/8/16); 243 (30/11/16); 245 (30/10/17); 251 (28/11/17). 2. From early January 2010, the plaintiff is reported as suffering from a reactive depression as a result of the November 2009 incident which continued for a number of years. This is recorded as leading to frequent management by his general practitioner, the preparation of a mental health plan, referral to a psychiatrist and the taking of the antidepressants Pristiq and then Cymbalta: see Exhibit 1 pages 75, 79, 83, 109, 118, 122, 127-128, 132, 134, 146 (8 January 2010), 245 (30 October 2017 - depression worsening because of chest pains); 254 (depression made worse by "multiple medical issues"). As Dr Samuell noted in his expert report, the plaintiff was prescribed antidepressants including shortly before the 18 April 2015 accident. 1. The plaintiff suffered serious diabetes from at least 2012 (but probably well before), requiring constant management including by specialists: Exhibit C pages 25, 44, 45 and 198. In various records, the plaintiff's diabetes condition was described as "uncontrolled" or "poorly controlled": see Exhibit 1 pages 114 (22 July 2013); 170 (24 July 2014); 198 (13 August 2015); 240 (21/9/16). 1. The documents in Exhibit 1 record the plaintiff as complaining of other injuries and conditions in the period 2010-18 April 2015. Reference is made to various conditions including: 1. A frozen shoulder: Exhibit C pages 75 (2010); 77; 86; 123 (4 April 2012), 129 (19 October 2011); 136 (25 November 2010); 2. Problems with his right shoulder including capsulitis and bursitis: Exhibit 1 page 71 (ultrasound dated 24 September 2010); 86 (26 July 2012); 3. Sciatica and problems with his lower back: including disc problems: see Exhibit C pages 39 (13 April 2015); 49 (30 August 2013); 111 (10 January 2014); 113 (3 January 2014); 116 (11 February 2013); 122 (1 August 2012); 124-125 (2 March 2012); 151 (21 September 2013 - CT scan); 162 (16 May 2014 - motor vehicle accident); 4. Neck problems including degenerative changes and pain: Exhibit 1 page 41 (18 December 2014); 47 and 158-159 (22 May 2014 - CT requested and plaintiff certified nine days unfit); 71 (24 September 2010); 112 (10 January 2014) (3 January 2014); 162 (following a 16 May 2014 motor vehicle accident - five weeks certified unfit); 5. Anaemia: see Exhibit 1 pages 28, 48 (14 February 2014); 105; 163; 283 (1 May 2018) and 286; 6. Numbness in the plaintiff's left arm and fingers: Exhibit C pages 39 (13 April 2015); 40 (11 February 2015); 41 (18 December 2014); 192 (21 February 2015); 7. Sleep apnoea: Exhibit C page 48 (11 February 2014); 8. Stomach ulcers: Exhibit C page 51 (25 November 2011); 9. Liver problems and disease: Exhibit C page 68; 163; 193 (12 February 2015). 1. The plaintiff is recorded as being involved in a number of accidents before the 18 April 2015 accident being: 1. A fall at rental premises in 2015: Exhibit 1 page 40 (22 January 2015 and 11 February 2015); 2. A motor vehicle accident on 16 May 2014 leading to neck and left shoulder pain: Exhibit 1 pages 47, 162 (whiplash injury of the neck, worsening of back pain, worsening of depression and diabetes, neck pain, low back pain); 174 (head hitting dashboard; pain and discomfort in the neck; lower back; pins and needles; worsening of depression; injuries listed to many parts of the body; 190 (mild muscular neck pain with paraesthesia of the left arm). 3. A motor vehicle accident in January 2014: Exhibit 1 page 112. 1. The documents in Exhibit 1 also record the plaintiff as being involved in accidents after the 18 April 2015 incident including: 1. Falls including on the day of his son's graduation from university in early 2016: Exhibit 1 pages 35 and 216; 2. A motor vehicle accident on 17 August 2016 leading to various pain reports including whiplash injury, neck and shoulder pain, headaches and increasing lower back pain and stiffness. The plaintiff was apparently admitted to Westmead Hospital: Exhibit 1 page 34. The plaintiff claimed in July 2019 that the accident caused cardiac trauma, the need for psychological treatment, the need for physiotherapy to the neck and right shoulder, cortisone injections and an aggravation of anxiety and depression affecting hypertension: Exhibit 1 page pages 31, 33, 34 and 297 (31 July 2019). 1. The records in Exhibit 1 appear to show that a number of the plaintiff's conditions complained of after 18 April 2015 were in existence before April 2015: 1. Neck pain with issues relating to the left arm; Exhibit 1 page 190 (9 February 2015); cf 195 (24 June 2015); cf 232 (18 August 2016 - motor vehicle accident); 2. Severe depression: Exhibit 1 page 184 (21 October 2014); cf page 201 (26 August 2015); 3. Right shoulder pain: Exhibit 1 page 86 (26 July 2012) cf 212 (28 October 2018); 234 (17 August 2016 - motor vehicle accident); 4. Lower back pain: Exhibit 1 page 151 (21 September 2013); 162 (16 May 2014 - motor vehicle accident) cf 257 (29 March 2018). 1. Some reports in Exhibit 1 indicate that the plaintiff's depression was due to co-morbidities such as diabetes, heart disease and liver problems which were apparently unconnected to the 18 April 2015 accident: Exhibit 1 page 202 (17 September 2015); 203 (17 September 2015). 2. In a 17 August 2016 accident, the plaintiff apparently suffered whiplash injuries including injuries to his neck, clavicles and shoulders and lower back: Exhibit 1 page 239. Physiotherapy was recommended. 3. The plaintiff's complex medical history before the 18 April 2015 accident and also other accidents and falls after 18 April 2015, create problems in relation to ascertaining the causes of the plaintiff's current complaints. The court was not assisted by any medico-legal reports obtained on behalf of the plaintiff. It was asserted by the plaintiff that this was due to a financial resource issue. The only medico-legal reports in the proceedings were those prepared on behalf of the defendant by Dr Machart and Dr Samuell which have already been referred to. These were tendered by the plaintiff. The defendant's oral evidence 1. No witnesses were called by the defendant. The plaintiff chose to call Mr Zammit in his case. The plaintiff's pre- and post-accident medical conditions and injuries – legal principles applicable 1. It is submitted on behalf of the defendant that the plaintiff had an extensive pre-accident medical history of medical conditions and injuries which must be taken into account in determining whether the alleged accident injuries were causative of the post-accident restrictions. In addition, it was submitted that a number of post-accident incidents including motor vehicle accidents and ongoing heart and diabetes problems, have heavily contributed to the plaintiff's alleged current restrictions. In the end, the submission was made that there were no relevant injuries or any injuries which arose in the course of or as a result of the accident were minor and resolved promptly and that the plaintiff's alleged current injuries and restrictions were not caused by the accident and thus do not give rise to compensable loss under the CLA. 2. I considered the relevant principles applicable in McPherson v Dowell [2018] NSWDC 348 at [216]-[219] where I stated the following: "216. One issue raised by the defendant in its statement of issues which was provided to the court is the nature and extent of any pre-accident medical condition suffered by the plaintiff and how they ought to be taken into account in assessing damages. The case of Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 was referred to. In Seltsam, Ipp JA (with whom Mason P agreed) considered the High Court cases of Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The court held that the onus of proof that a defendant must discharge when making the allegation that a plaintiff's pre-existing condition or injury was a contributing factor to the injury sued upon arising from the negligent act or omission was not an onus to prove that the pre-existing condition or injury had made a material contribution to the plaintiff's injury. A pre-existing condition or injury that was proved to have possible, not probable, ongoing consequences to a plaintiff must be taken into account by the court. There was no requirement that evidence adduced by the defendant must be sufficiently precise and definite to displace the inference that the disabling condition or pain from which the plaintiff suffered was caused by the accident in question: at [100]. Ipp JA said that what was said by the High Court in Watts v Rake and Purkess v Crittenden had to be qualified by the principle stated in Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638. Ipp JA stated the following in Seltsam at paragraphs 104-109: "[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition. [105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations — not proof on a balance of probabilities. [106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition. [107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. [108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise. [109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p 511)." 217. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, White JA (with whom Macfarlan and Payne JJA agreed) gave the leading judgment. The issue in that case was whether the plaintiff's epilepsy was a progressively deteriorating condition which contributed to his disability. White JA stated the following at paragraphs 110-115: "[110] The primary judge accepted that the Hospital's negligence materially contributed to an increased burden of Ms Pierce's epilepsy. Ms Pierce submitted that accordingly the Hospital had the onus of adducing evidence that the worsened burden of her incapacity was partly the result of her pre-existing condition. In Purkess v Crittenden Barwick CJ, Kitto and Taylor JJ said (at 168): ... where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. (emphasis added) [111] This was said in the context of a personal injury case arising from a motor vehicle accident. The plaintiff experienced severe and disabling pain in her cervical region. There was evidence that before the accident she suffered from degenerative changes in the spine which were most marked in the cervical region. It was asserted for the defendant that it was probable that at some unspecified time she would have become similarly disabled even if she had not been injured in the motor vehicle accident. The High Court held that the medical evidence upon which the defendant relied, that was accepted by the trial judge, did not establish with any reasonable degree of precision the extent of the plaintiff's pre-existing condition or its likely future effects (at 169). [112] In the present case the Hospital discharged its evidentiary onus of establishing that Ms Pierce's pre-existing condition was one of likely progressive deterioration. She had the legal burden of establishing the extent to which the Hospital's negligence damaged her. No reasonable precision was possible either of the likely progression of her epilepsy in the absence of the telemetry event, nor of the extent to which the defendant's negligence worsened her existing condition. The defendant's negligence in the present case was in the treatment of an existing condition that is factually remote from the circumstances in Watts v Rake and Purkess v Crittenden. [113] In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1, Ipp JA, with whom Mason P agreed, said in relation to Malec v J C Hutton Pty Ltd: 103 Therefore, according to Malec: (a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred. (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring. (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities. 104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition. [114] The fact that Ms Pierce suffered epilepsy that was likely to deteriorate progressively was to be determined on the probabilities. The likely extent of the progression of her condition was an issue to which the principles in Malec v J C Hutton Pty Ltd applied. The fact that Ms Pierce's epilepsy was a progressively deteriorating condition was established on the balance of probabilities. [115] For these reasons I reject Ms Pierce's challenge to the primary judge's finding that her epilepsy condition as it existed before the telemetry event of 5 January 2010 was likely to deteriorate progressively." 218. In Gulic v Angelovski [2018] NSWCA 161 Sackville AJA (with whom Beazley P and McColl JA agreed) gave the leading judgment. The case was a claim under MACA. At paragraphs 34-38 Sackville AJA stated as follows: "[34] The parties' submissions did not direct close attention to the principles applying where a plaintiff who claims damages for loss of earning capacity by reason of the defendant's negligence suffered from pre-existing injuries or disabilities prior to the date the negligence occurred. Although the principles were not in dispute, it is convenient to refer to them. [35] Section 5D of the Civil Liability Act 2002 (NSW) (CL Act) was in force at the notional trial date. Section 5D(1)(a) provides that a determination that negligence caused particular harm requires the negligence to be a necessary condition of the relevant harm. Section 5E of the CL Act states that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. [36] A plaintiff is entitled to damages for any diminution in his or her earning capacity resulting from injuries sustained by reason of the defendant's negligence. But the plaintiff is not entitled to damages for the degree of incapacity that arose from conditions pre-dating the defendant's negligence. It is therefore ordinarily necessary to assess the plaintiff's earning capacity prior to and following the accident. That task includes assessing the plaintiff's economic prospects at the relevant times. [37] The plaintiff must adduce evidence that the injuries sustained in consequence of the defendant's negligence are or may be associated with his or her post-accident inability to exploit fully his or her earning capacity. Evidence of this character ordinarily establishes a prima facie case that the defendant's negligence caused the plaintiff's diminished earning capacity. If the defendant contends that the plaintiff's current diminished earning capacity is due in whole or in part to a pre-existing injury or condition, the defendant has the burden of adducing evidence to that effect. The evidence must be such as to enable the court to draw an inference as to the consequences for the future of the pre-existing condition. If evidence of this kind is adduced, the plaintiff retains the burden of proving that the loss of earning capacity was caused by the injuries sustained as a consequence of the defendant's negligence. [38] In applying these principles it may be necessary to allow for possibilities and contingencies. For example, a defendant may discharge the evidential onus by adducing evidence that, had the accident not occurred, the plaintiff's ability to work might have been compromised in any event by a pre-existing condition. In such a case an allowance must be made for the possibility of a deterioration in the plaintiff's earning capacity occurring independently of the defendant's negligence. Conversely, a plaintiff whose earning capacity is diminished at the date the accident occurred may be entitled to damages that take account of the chance that his or her earning capacity would have increased but for the injuries sustained in the accident." 219. In Dal v Chol [2018] NSWCA 219, White JA considered the effect of a subsequent motor vehicle accident on the plaintiff's claim for damages in relation to an earlier accident. White JA stated as follows at paragraph 5: "[5] The appellant did not plead nor seek to prove that the second motor vehicle accident in July 2015 had contributed in any degree to the respondent's present incapacity to perform the kind of work that he performed as a motor vehicle mechanic prior to the 2013 collision. No submission to that effect was advanced on appeal or before the primary judge. This Court held in Kessey v Golledge [1999] NSWCA 424 at [46] that the defendant bore the onus of adducing evidence that the plaintiff's incapacity at trial was caused or contributed to by a second accident. This is consistent with Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168; [1965] HCA 34 and Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 163–164; [1960] HCA 58 where the High Court held that if the defendant alleged that the injured plaintiff's incapacity was wholly or partly due to a pre‐existing condition, the onus of adducing evidence of that matter lay on the defendant. That must be so a fortiori if the defendant contends that a later injury has contributed to the plaintiff's incapacity. The only relevance of the second motor accident is that it brought to an end the respondent's employment with Evapco."" 1. In Kabic v AAI Limited t/as GIO [2019] NSWCA 247, the Court of Appeal also confirmed Seltsam, above, and Metro North, above: at [170]-[172]. 2. The Court of Appeal in Kabic emphasised that the approach stated by the High Court to assessing damages in relation to hypothetical and future events in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at [640] and [642]-[643] applied also to past hypothetical events. Justice White (with whom Meagher and McCallum JJA agreed) stated at paragraph 174: "174. The submission did not acknowledge that the principles in Malec v J C Hutton Pty Ltd apply also to past hypothetical events. That is, that in the assessment of past economic loss, account should be taken of the possibility that if he had not been injured, Mr Kabic might have been unable to work as a formworker even up to trial, that was more than five years after his injury." 1. In DC v State of New South Wales [2016] NSWCA 198 Ward JA stated as follows at paragraphs 352–355: "352. However, insofar as the appellants rely on the respondent's failure to discharge the Watts v Rake evidentiary onus as entitling them to the whole of their damages, there is a tension between the Watts v Rake and Purkess v Crittenden line of authority on the one hand and that considered in and following Malec, as pointed out by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2003, LexisNexis Butterworths). 353. At [1.9.11] in that text, Professor Luntz, discussing the principle derived from the House of Lords decision in Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613; 1 All ER 615 (that where an external cause may also have contributed to the plaintiff's condition, the onus of proving causation was satisfied once the plaintiff proved that the defendant had contributed materially to the condition, and where it was impossible to apportion the loss the plaintiff would recover the full amount of its loss; thus there being an evidential onus on the defendant to disentangle the causes (and see the discussion at [1.9.10])), argues that logically the application of the principle of Malec where there is an external contributing cause to indivisible loss would require the Court to evaluate the chance that the harm would have occurred without the defendant's contribution and to reduce the damages recoverable from the defendant accordingly. While it is noted at [1.9.11] that an argument to that effect was rejected in Commonwealth v McLean (1996) 41 NSWLR 389 at 410-411, Professor Luntz postulates (at fn 662) that the "innocent" cause there was one that in any event would be taken into account when making an allowance for contingencies or vicissitudes. 354. Professor Luntz goes on to say at [1.9.14] that: To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant's negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff's damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance. (footnotes omitted) 355. I consider that the reasoning of Professor Luntz is apposite in the present case. Accepting that the respondent did not satisfy the evidential burden (the Watts v Rake burden) of disentangling the relevant causes of harm, the evidence nevertheless established that there was a real chance that the appellants would have developed similar symptoms even in the absence of the respondent's negligence." 1. Sackville AJA agreed with her Honour's reasons on the issue: at [373]. His Honour also made a useful comment at [393] in relation to psychiatric injuries which often relate to an alleged exacerbation of an antecedent psychiatric disability. Sackville AJ quoted Basten JA in another case as stating that precision in such cases, at least in relation to aetiology, "tends to be an aspiration rather than a reality": New South Wales v Burton [2016] NSWCA 12 at [76] 2. In determining these issues the entirety of the plaintiff's pre- and post-accident medical history must be taken into account as well as the medico-legal reports provided by Dr Machart and Dr Samuell. Submissions The Plaintiff's submissions 1. The plaintiff provided detailed written and oral submissions. Written submissions were provided at the beginning of the case and after the completion of the evidence. In summary, the plaintiff submitted as follows: 1. The plaintiff was invited by a general open invitation to the public by the defendant to visit the Rouse Hill store; 2. There were no relevant warning signs or hazard signs in the store when the plaintiff entered on 18 April 2015; 3. The whole store was a hazard: opening written submission paragraphs 5.1(gg) and 7.7; 4. The plaintiff's wife tripped and fell on 18 April 2015. The plaintiff tried but could not break his wife's fall. He fell and was injured while trying to do so: opening written submissions paragraph 5.2(hh). The plaintiff's evidence as to the accident should be preferred to that of Mr Zammit and the version set out in the incident report which was incomplete: final submissions paragraphs 14-16; 18-19; 24-30; photos annexed to the final submissions; 5. The plaintiff thereafter requested an incident report which was refused by store staff. He prepared his own incident report at the time: opening written submission paragraph 5.2(ii); 6. The plaintiff went to his general practitioner Dr Doan on 20 April 2015 complaining of pain and was referred for a CT scan of the cervical spine: opening written submission paragraph 5.3. This showed a broad based disc bulge at the C5/6 level; 7. The defendant was negligent due to its placement of the chairs and tables abutting the aisles and jutting out: opening written submissions paragraph 7.8 (kk) and (ll). Warning signs should also have been placed in the vicinity: opening submissions paragraph 7.8 (mm) and (nn). The placement of the stack of chairs was a hazard and was negligent. The area where the plaintiff's wife tripped should have been clear, open and hazard free to walk freely: final submissions paragraphs 9.1; 12; 16.5-16.8; 8. The defendant thereby breached the duty of care which it owed to the plaintiff: opening written submission paragraph 7.9; final submissions paragraphs 12 and 16; 9. There was no contributory negligence by the plaintiff: opening written submission paragraph 7.12; 10. The plaintiff suffered serious injuries and disabilities in the accident: opening written submission paragraph 8. These injuries included injuries to the right knee, lower back, shoulder, neck and hip: opening submission paragraphs 8.1 and 8.9. The plaintiff suffers from serious and ongoing pain and depression and anxiety arising from the accident: opening submission paragraphs 8.2 and 8.8; final submissions paragraphs 16.10-17.3. The plaintiff saw Dr Doan relating to his injuries in the accident soon after the accident on 20 April 2015; 11. The plaintiff suffered new injuries in the accident being injuries different to previous injuries he had suffered. The plaintiff's previous injuries were aggravated in the accident: final submissions paragraph 21; 12. The plaintiff has incurred substantial past out of pocket expenses and will incur substantial future out of pocket expenses. There should also be substantial awards for non-economic loss and for past and future domestic assistance: final submissions pages 11-13; paragraph 21; 13. The plaintiff's claim is not statute barred. The plaintiff filed the Statement of Claim late because of his medical conditions including his serious heart condition. His condition arising from the subject accident became much worse and the plaintiff became aware of this from 30 March 2016: final submissions paragraphs 1-2; 16.9.3; 1. The plaintiff's submissions also covered the floor being allegedly slippery and there being debris on the floor. However, these matters were not pleaded and the case was not run by the parties on the basis that these allegations were part of the plaintiff's formal case: see plaintiff's final submissions paragraphs 9.1-11; reply submissions paragraphs 15.2, 15.2.1, 17, 31.6 and 33.1. No final submissions were made by the defendant on these matters: paragraph 5. The Defendant's submissions 1. The defendant made detailed written and oral submissions. Submissions were only made on the case which was pleaded and particularised by the plaintiff. In summary, the defendant submitted as follows: 1. The precise mechanism of the plaintiff's alleged injury is in dispute. Liability, causation and damages are in dispute; 2. The CLA applies both in respect of liability and the assessment of damages – this was agreed by the plaintiff: reply submissions paragraph 4; 3. The plaintiff's version of the accident should not be accepted. First, it is inconsistent with the Incident Report. There is no mention in that report of the plaintiff attempting to save Mrs Khanna as she fell: final submissions paragraph 7. The diary entry of Mr Zammit also makes no mention of the plaintiff attempting to save Mrs Khanna as she fell: final submissions paragraphs 8-9. In some respects, Mrs Khanna's evidence contradicted the plaintiff's evidence. Mr Zammit's evidence was also inconsistent with the plaintiff's evidence. He did not see the plaintiff fall: final submissions paragraphs 12-15; 4. There was no hazard created by the stacks of chairs and the bi-fold tables. Therefore, there was no need for the defendant to do anything in response to any hazard, as none existed. The area, as revealed in the photographs in Exhibit A, where the chairs were located was wide, uncluttered and with plenty of space for customers to easily walk by. Anyone keeping a proper look out and taking care for their own safety would not have walked into the stack of chairs. Clearly, Mrs Khanna was not keeping a proper look out: final submissions paragraphs 16-17; 5. The plaintiff's claim was statute barred. The incident occurred on 18 April 2015. The court ought to find the discovery period for the plaintiff's alleged cause of action commenced on the day of the incident or a short time later, or, at the latest, certainly before 29 January 2016. Therefore, the plaintiff's claim is not maintainable: final submissions paragraph 18; 6. In the present case, there is no real difference in the plaintiff's alleged injuries and disabilities throughout the period from the date of the incident until the filing of his Statement of Claim. He never required legal advice to inform him whether he had a cause of action against the defendant as he was always aware of that fact. The plaintiff's letter on the day of the accident shows he was aware of the circumstances of the accident. He went to get medical treatment the day after the accident or the day after that. He told the doctor he had pain and was referred for a CT scan. Later, the doctor prescribed painkillers and an injection. The extent and nature of the plaintiff's alleged injuries and disabilities have essentially been the same since the end of 2015. This is not a case where there has been a substantial increase in "pain and suffering" after the limitation period expired. Therefore, each of the factual elements in s 50D of the Limitation Act is satisfied and the discoverability period for the plaintiff's cause of action commenced well before 29 January 2016: paragraphs 19-34. The other sections relied upon by the plaintiff are misconceived and have no application to his claim: final submissions paragraph 35. The date relied upon by the plaintiff, namely 30 March 2016, is not relevant as the evidence does not suggest some decisive change occurred then. The plaintiff's cause of action is statute barred and should be dismissed: final submissions paragraphs 35-37; 7. No breach of duty of care is established in the present case. The plaintiff has failed to properly, or at all, articulate the relevant risk of harm. The various elements in s 5B of the CLA have not been established. There were no, or no further, precautions that a reasonable person in the position of the defendant would have taken in response to the alleged risk of harm. The risk was also an obvious risk: final submissions paragraphs 38-43; 8. Mrs Khanna was not exercising reasonable care for her own safety as her evidence makes clear. She was not watching where she was walking. The store and aisle were not cluttered, or filled with hidden obstacles. Placing promotional goods at the end of the aisle was standard practice and no hazard was created by that practice. There was adequate room for customers to navigate around. The stacks of chairs were obvious, in plain sight and readily observable. They did not amount to a hazard. There was nothing unusual or unsafe about how the items were displayed: final submissions paragraphs 44-51; 9. The alleged risk of harm was not foreseeable to the defendant. The risk of harm was not insignificant in the present case. The plaintiff has failed to articulate what precautions he alleges a reasonable person in the position of the defendant would have taken in response to the alleged foreseeable and not insignificant risk of harm. At its highest, the plaintiff's case is that the stacks of chairs should not have been placed at the end of an aisle. There is no logical reason why that could possibly be so and it is common merchandising practice: final submissions paragraphs 52-58; 10. Causation is not established in the present case. The plaintiff's alleged injury was not caused, in any relevant sense, by any breach by the defendant. It was caused by Mrs Khanna failing to take reasonable care for her own safety while in the store: final submissions paragraphs 59-64. Thus liability is not established; 11. There was contributory negligence by the plaintiff who was significantly disabled prior to the accident and ought not to have attempted to lift Mrs Khanna up. The finding should be 25%: final submissions paragraphs 66-68; 12. The Deed of Release with Mrs Khanna was not in evidence and is irrelevant: final submissions paragraph 69; 13. The plaintiff had considerable prior injuries and conditions. There is no opinion in the clinical records expressed by a medical provider that the subject incident caused any change to the plaintiff's pre-existing health problems or caused or aggravated any new injury: final submissions paragraphs 70-80; 14. The plaintiff's claim in damages is excessive and not supported by any evidence, including documentary evidence of expenditure and exceeds the jurisdictional limit of the court: final submissions paragraph 81; 15. In relation to damages, the court is unable to find any material difference in the plaintiff's condition allegedly resulting from the accident. He is in substantially the same condition as he would have been but for any alleged injury suffered in the accident: final submissions paragraphs 82-87. No amount should be allowed for non-economic loss, out of pocket expenses or for domestic assistance. In relation to domestic assistance, the court could not be satisfied that any assistance, assuming it was provided to the plaintiff, was either causally related to the incident or satisfies the minimum statutory thresholds for gratuitous domestic assistance: final submissions paragraphs 88-97; 16. The plaintiff's claim in the proceedings should be dismissed with costs. 1. In written reply submissions dated 9 September 2021, the plaintiff submitted, in general summary, as follows: 1. The plaintiff accepted that the defendant was the occupier of the relevant store; 2. The plaintiff has established causation on the facts. There should be no deduction for contributory negligence: paragraphs 3.1 and 33; 3. The legs of the stack of chairs as placed at the end of the aisle were a hazard to Mrs Khanna and the plaintiff and there was thus a breach of duty of care: paragraphs 6, 31.5. The area at the end of the aisle used as a display was not hazard free: paragraphs 16, 25. The relevant legs of the chairs were jutting out at an angle and negligently caused the fall: paragraphs 17, 17.3, 25.1, 31.2, 33.1.1. The placement of the chairs gave rise to the likelihood of a customer becoming entangled with the chair legs. The risk was foreseeable, not insignificant and precautions should have been taken by the defendant to remove the hazard: paragraph 25. The risk was not obvious: paragraph 34.1.1. No proper space was left for customers to walk: paragraph 25.3.2. There was no proper procedure in place at the store to check for hazards: paragraph 25. There was a breach of duty by the failure to provide appropriate signs to warn of the hazard of the stacks of chairs: 31.5. There was a breach of duty by failing to take a proper risk assessment: paragraph 31.8; 4. As a result of the accident, the plaintiff suffered both physical injuries to his right knee, lower back, cervical spine, pelvis and right hip and psychological injuries by an aggravation in anxiety and depression: submissions paragraph 6.1. The injuries were caused as the plaintiff tried to save his wife's fall: paragraphs 7, 28. The medico-legal experts retained by the defendant were not supplied with all of the radiological reports: paragraph 27. The plaintiff's claimed damages have been established: paragraph 29; 5. Mr Zammit should have made the Incident Report not Mr Atherton: paragraphs 7.1-8. The Incident Report was inconsistent with Mr Zammit's diary entry: paragraph 8.1. Mr Zammit should not be accepted where he states that he was immediately behind Mrs Khanna when she fell: paragraphs 8.1; 15.2. Mrs Khanna was not looking at the furniture wall but at the products and in front of her which was permitted: paragraphs 8.1.1 and 8.1.2; 6. The plaintiff's claim is not statute barred. It was not until 30 March 2016 that the serious nature of the plaintiff's injury became apparent: paragraphs 18.1, 18.2.3, 23.1. The plaintiff was also disabled from 2009: paragraph 20.1; 7. The plaintiff has established breaches of the duty of care owed which have caused the plaintiff's injuries. Damages should be awarded as claimed. Factual findings 1. I make the following findings of fact after taking into account the submissions of the parties: 1. The plaintiff has been involved in numerous incidents and accidents, both before and after the 18 April 2015 accident, in which he has suffered injuries. These include the 2009 incident involving the repossession driver, adhesive capsulitis with supraspinatus tendinosis and bursitis in 2010 (Exhibit 1 page 136), heart attacks in December 2009, sciatica in 2013, a car accident in 2013 (Exhibit 1 page 115), a car accident in 2014 (Exhibit 1 pages 162 and 190), a fall in 2016 and a car accident in 2016 (Exhibit 1 pages 230-232). These matters will be considered further in the medical findings below. 2. On 18 April 2015, the plaintiff and his wife travelled by car to the Masters Home Improvement store run by the defendant at Rouse Hill in Sydney. After parking their car, they proceeded to the entrance of the store. 3. After entering the store, the plaintiff and his wife turned right and proceeded along a wide open area at the end of the aisles of the store. There were numerous other customers in the store at the time. 4. The plaintiff was walking to his wife's right and a little ahead. There were no customers immediately in front of the plaintiff and his wife. 5. The plaintiff and his wife may have walked down an aisle at some stage but I accept and prefer their evidence that shortly before the accident, the plaintiff and his wife were walking at the end of the aisle where there was a wide open area. The diary entry at Exhibit A page 32 does not refer to the plaintiff and his wife walking down the aisle. I was impressed by the plaintiff's evidence on this point and prefer it to that of Mr Zammit. 6. There were numerous goods on display in the aisles, both on shelves and in stacks. Near the end of one aisle, there were four stacks of chairs, two stacks of a light colour and two of a dark colour. See Exhibit A pages 45-48. The dark coloured stacks of chairs were readily and reasonably observable to a customer and were of a quite different colour to the floor. See also T325.42-.50. The way the chairs were stacked and the nearby collapsible tables for sale are shown in Exhibit A pages 45-48 which photographs were taken by the plaintiff on the day of the accident, soon after the accident. Mr Zammit confirmed this in his evidence. 7. The plaintiff's wife walked close to the final stack of dark coloured chairs as she proceeded walking in the open area at the end of the aisles. She caught her left foot on the front left legs of the chairs in the final stack of dark coloured chairs closest to the end of the aisle: see Exhibit A pages 45-46. Mr Zammit's diary entry has her tripping on the leg of the white collapsible table: Exhibit A page 32. This is not in accordance with the evidence of Mr and Mrs Khanna. It is contrary to the Incident Report at Exhibit A page 23. In my view, Mrs Khanna's evidence is likely to be most reliable on this point. Mr Khanna also said he saw her fall on the legs of the chair stack: see also Exhibit A page 53. Although Mr Zammit said his diary entry was prepared on the day of the accident, Mr Zammit said in his oral evidence that he could not recall what Mrs Khanna tripped on. The evidence of Mr and Mrs Khanna was clear on this matter and I prefer it. Both parties submitted that I should find on the evidence that Mrs Khanna tripped on the front left legs of the chairs in the final stack of dark coloured chairs closest to the end of the aisle. The plaintiff's wife tripped and fell and landed on her knees hurting herself. She fell over in pain on the floor. The plaintiff claims his wife fell onto him as she was falling and he attempted to stop her fall. He asserts he was injured in doing so and, in particular, injured his right knee. The plaintiff's wife claims she fell and the plaintiff fell after her fall, and after he spoke to her and when he was attempting to help her get up. Mr Zammit, a then employee of the defendant, claims he did not see the plaintiff fall at all and he (Mr Khanna) was walking 1 to 1 ½ metres ahead of Mrs Khanna. The plaintiff's document prepared on the day of the accident (Exhibit A page 53) states that the plaintiff tried to save her fall but could not. Mr Zammit's diary entry makes no reference to the plaintiff falling. 1. On balance, I prefer the plaintiff's evidence on this issue. I found the plaintiff's wife's evidence as to the fall to be hesitant and confusing: see T286-T291. Mr Zammit's recollection of the incident was not comprehensive. He could not recall a number of matters including how Mrs Khanna tripped. I found the plaintiff's evidence to be clear on this point. It is consistent with the document he prepared on the day at Exhibit A page 53. However, I reject the plaintiff's evidence that he fell backwards and hit his head and shoulders on the concrete floor. If he had done so, he would, in my view, likely have had more serious injuries, including at the least a headache. He would also have been unlikely to injure his right knee as he said he did. There was no expert evidence to establish that the claimed mechanics of the fall as set out by the plaintiff in his evidence, was reasonably possible. I therefore find that the plaintiff fell injuring his right knee but did not fall backwards hitting his head as he claims. The plaintiff got up. He and bystanders and probably Mr Zammit assisted his wife in due course to a nearby lounge. I reject Mr Zammit's evidence that he was the only one who assisted Mrs Khanna. 2. Members of the defendant's staff helped Mrs Khanna, including Mr Atherton. The plaintiff asked for an incident report. When none was provided, he sat down and prepared the document at Exhibit A page 53. 3. The plaintiff asked the defendant's staff to sign the document he had prepared. They refused. Mr Zammit said he refused as he understood the plaintiff wanted him to admit liability. I accept that evidence. 4. After about an hour, the plaintiff helped his wife to the car and they drove home. 5. Mr Ross Atherton of the defendant's staff in due course prepared a safety incident notification report: Exhibit A page 23. This was based on information provided to Mr Atherton by Mr Zammit. Mr Zammit prepared a diary entry at Exhibit A page 32. Despite the diary entry, I accept the evidence of the plaintiff and his wife that Mrs Khanna tripped on the legs of the chairs in the last stack of chairs not the leg of the folding table. Their evidence was clear on this point. It is also consistent with the details in the Incident Report at Exhibit A page 23. 6. Mrs Khanna in due course consulted a solicitor who wrote to the defendant: Exhibit A page 29. The plaintiff also attended the consultation with the solicitor. Medical findings 1. The plaintiff, as indicated above, had an extensive history of accidents and medical conditions both before and after the accident on 18 April 2015. The issue for the court is to identify what injuries and conditions arose from the 18 April 2015 accident. 2. I make the following medical findings: 1. The plaintiff has had long term serious diabetes. This condition commenced well before 2009. 2. The plaintiff was seriously injured in the incident in 2009. This resulted in pain and stiffness to various areas including the plaintiff's neck, upper back, shoulders, left hip and left thigh. The plaintiff also suffered serious depression as a result of his injuries in the incident which will be considered further below. 3. Following the 2009 incident, the plaintiff had two heart attacks, the insertion of numerous cardiac stents and serious and ongoing heart problems. The plaintiff had open heart surgery in 2019. The medical evidence does not establish on the balance of probabilities that any of the plaintiff's heart problems or the open heart surgery have any connection to the 2015 accident complaints of the plaintiff. 4. The plaintiff has had medical treatment for his diabetes over the last 25 years. The plaintiff claims that the 2015 accident has worsened his diabetes due to his inability to exercise following a knee injury in the accident. Despite the plaintiff's claims, I am not satisfied on the medical evidence that the plaintiff's diabetes has worsened due to the accident. There was no clear medical opinion to that effect. The plaintiff has claimed in 2012, 2019 and 2020 that his injuries arising from the 2009 incident were still causing him considerable pain and restrictions. 5. The plaintiff claims that he has suffered from depression and anxiety arising from the 2015 accident. However, the plaintiff also accepted that he had depression arising from the 2009 incident. This is clearly established from his general practitioner consultation notes. Although the plaintiff claims this had substantially improved by 2015, Dr Samuell points out in his report that as at April 2015, the plaintiff had recently been prescribed an antidepressant. The opinions of Dr Samuell and Dr Pearson (who does not mention the 2015 accident in his report) do not, in my view, support the plaintiff's claim of depression linked to the April 2015 accident. Dr Pang's report dated 26 August 2015 (Exhibit A page 206) does not provide the basis for his opinion or connect it to the 18 April 2015 accident. There was no medico-legal opinion obtained by or on behalf of the plaintiff establishing this claim. The plaintiff claimed depression in 2019-20 linked to the 2009 accident: see Exhibit 1 pages 311 paragraph 9.1 (f), 321 paragraphs 5.2 and 6.5 and 324 paragraph 13. I therefore find it not established on the balance of probabilities. The 26 August 2015 general practitioner notes refer to "multiple medical issues causing patient to be mentally unwell". 6. The plaintiff was in a motor vehicle accident in May 2014 which caused neck problems, shoulder pain and a worsening of lower back pain. 7. The plaintiff had ongoing issues with his left arm, including tingling in his left fingers with neck discomfort and stiffness before the 2015 accident. This is established in my view by the April 2015 CT scan report by Dr Kariappa which referred to a history of: "2 months of radicular symptoms radiating to C8": Exhibit A page 54. I find these complaints were not caused by or made worse by the 18 April 2015 accident. I accept the defendant's submissions on this issue. 8. The plaintiff claims he attended his general practitioner on 19 or 20 April 2015, shortly after the accident. There are no general practitioner notes of any consultation. Why that is so is unclear. I accept the plaintiff's evidence as to having a consultation. It is supported by the 21 April 2015 CT scan report and the Medicare printout (Exhibit 1 page 277- although the plaintiff appears to link the consultations in April 2015 to the 2009 accident: Exhibit 1 page 263). 9. The plaintiff gave evidence that he complained to his general practitioner on 19 or 20 April 2015 about pain in the following areas after the 18 April 2015 accident: his right knee, his right hip, his right shoulder and his lower back. The only area referred to in consultation notes before 25 February 2016 arising from the accident was right knee pain. I find that the plaintiff injured his right knee in the subject accident when he fell on it. The other complaints are likely to have been much less serious and secondary as they are not referred to in the later general practitioner consultation notes up to February 2016. The physiotherapy report dated 28 June 2018 does refer to lower back pain but relates it "to a history of a motor vehicle accident and recurrent hospital admissions". I am also not satisfied that any of the complaints relating to the plaintiff's cervical spine referred to in the 21 April 2015 CT scan report related to the 18 April 2015 accident, having regard to the history provided to the radiologist. The MRI scan reported on by Dr Dugal on 25 September 2015 does not support a different conclusion. 10. Later reports on scans of the plaintiff's lumbar spine dated 4 April 2018 and 26 November 2019 do not connect the complaints to the April 2015 accident. Congenital spinal canal stenosis and other degenerative changes, on the evidence, are not satisfactorily linked to the accident. Dr Vasili, the plaintiff's orthopaedic surgeon, does not refer to lower back pain in his last report. Dr Nima's report at Exhibit A page 209 refers to back pain starting after the fall but this must have been based on the plaintiff's complaints. 11. Earlier longstanding problems with the plaintiff's right shoulder, hips and lower back, including sciatica, establish, in my view, that any worsening of the plaintiff's problems in these areas as a result of the April 2015 accident were soft tissue only and were only an aggravation. Even without the 2015 accident, the plaintiff would have had ongoing problems in these areas, arising from the earlier accidents: see Dr Machart's opinion on this issue and the plaintiff's claims in relation to the 2009 incident and 2016 accident made in 2019 and 2020: Exhibit 1 pages 239, 296, 304 and 320. 12. I am not satisfied that the plaintiff's need for podiatry services is connected to the April 2015 accident. There is no medico-legal opinion to that effect. Dr Nima, the plaintiff's general practitioner, suggested the plaintiff's need for regular podiatric assessments was as a result of his diabetes. 13. After the April 2015 accident, the plaintiff had two accidents in 2016, including a fall and a motor vehicle accident. Increasing lower back pain and stiffness and pain to the neck and shoulder were referred to as arising from the 2016 accident. 14. In summary, I find that the plaintiff injured his right knee in the 2015 accident. He also mildly aggravated pre-existing injuries to his right hip, right shoulder and lower back. I am not satisfied that anything other than soft tissue injuries were occasioned by the accident. Even after taking into account the defendant's written submissions, I prefer Dr Vasili's report to Dr Machart's report in relation to the plaintiff's hip and knee as the latter had incomplete material and the former's report is much later. I find the plaintiff's pain in the knee and right hip is continuing. There is no indication of the need for surgery. Consideration 1. I will proceed to consider the claims made by the plaintiff and the defendant's responses. Limitation issue 1. In paragraph 1 of the Defence filed on 4 March 2019, the defendant pleads that the Amended Statement of Claim filed on 5 February 2019 is statute barred pursuant to s 50C of the Limitation Act 1969 (NSW). The plaintiff submits the claim is not barred. 2. The Statement of Claim commencing the proceedings was filed by the plaintiff on 29 January 2019. The accident occurred on 18 April 2015. The plaintiff claims he was injured on that date. Three years after this date was 18 April 2018. The Statement of Claim was thus filed after this date. A limitation issue therefore arises for consideration. 3. Part 2 Division 6 of the Limitation Act relates to personal injury actions. Section 50A of the Limitation Act applies Part 2 Division 6 to a cause of action for damages that relates to the personal injury to a person regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. Having regard to the date of the accident and the claim being for personal injuries, the cause of action alleged in the present case is covered by Part 2 Division 6: see s 50A(2). I accept the written submissions of the defendant that ss 18A and 60A-E of the Limitation Act referred to by the plaintiff in paragraph 1 of his final submissions dated 25 August 2021 are inapplicable to the present case. 4. Although there is some evidence suggesting that the plaintiff may have been suffering a form of psychiatric or mental illness at the time of the accident or that that condition was made worse by the accident, I am not satisfied that s 50F of the Limitation Act is applicable. Under s 50F(1), if a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. Under s 50F(2), a person is under a disability while the person, relevantly, is an incapacitated person for a continuous period of 28 days or more. The question is whether the plaintiff was an "incapacitated person" within s 50F(4). I am not satisfied on the evidence before me that the plaintiff was a person in the period three years prior to 29 January 2019 who was incapable of, or substantially impeded in, the management of his affairs in relation to the cause of action in respect of the limitation period for which the question arises. The assertion that the plaintiff was an incapacitated person in the period is not supported by the medicolegal report of Dr Samuell dated 20 August 2019: Exhibit A page 169. Whilst Dr Samuell found a persistent depressive disorder, he also found that the plaintiff was not incapacitated from the point of view of domestic assistance from a psychological perspective. Dr Samuell assessed the plaintiff as being miserable with a poor quality of life and with some poor recollection. However, his report does not support a relevant incapacity. In his report dated 6 November 2020, Dr Pearson noted that the plaintiff had depressive thinking. However, he noted that the plaintiff had reasonable concentration and on a mental state examination was a pleasant man who was articulate and insightful and demonstrated good reactivity. 5. The reference by the plaintiff in his final written submissions to his heart condition does also not appear to be relevant. There is no evidence the heart condition amounted to a relevant incapacity. The plaintiff's heart surgery referred to occurred much later in 2019. 6. Overall, on the medical evidence, I am not satisfied that the plaintiff was an "incapacitated person" within s 50F(4) of the Limitation Act. 7. Sections 50C and 50D of the Limitation Act provide as follows: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note— The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. (2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times: (a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased, (b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment, (c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative. (3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased. 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased." 1. Under s 50C, an action on a cause of action is not maintainable if brought after the expiration of the limitation period which is the period of three years running from and including the date on which the cause of action is discoverable by the plaintiff. This is defined by s 50D. A cause of action is discoverable by the person on the first date that the person knows or ought to know of each of the following facts: 1. The fact that the injury or death concerned has occurred – the evidence satisfies me that the plaintiff knew or believed that he was injured on the date of the accident; 2. The fact that the injury or death was caused by the fault of the defendant – the plaintiff accepted that he formed the view on the day of the accident that there had been a breach of duty of care by the defendant; and 3. The fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. 1. In Best v Rosamond [2020] NSWCA 90, Payne JA (with whom Bell P and Leeming JA agreed) stated the following at paragraphs 14-18: "14. This appeal turns upon the correct application of ss 50C and 50D of the Limitation Act which are set out at [4], above. 15. The appellant accepted that the primary judge had identified the correct test for the operation of ss 50C and 50D of the Limitation Act, being that explained in Baker-Morrison. It was the application of the facts to that legal test which was the subject of complaint. In Baker-Morrison Basten JA, (with whom Ipp JA and Macfarlan JA agreed) in addressing s 50D(1)(c) and actual knowledge, said: "[41] Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but 'sufficiently serious to justify' a course of action. Further, that course is 'the bringing of an action on the cause of action', an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being 'of a decisive character' for the purposes of s 57B(1)(c), set out at 458 [12] supra. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one 'knowing those facts and having taken the appropriate advice on those facts' would hold the identified opinion. [42] The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, for example, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind. [43] It is also appropriate that s 50D be read in a broader context. Thus, a claim for damages for personal injury, brought by a solicitor, must be accompanied by certification in accordance with the Legal Profession Act 2004, s 347. The statement of claim in the present case bore such a certification which read: 'I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success.' [44] A further element of the broader legal context is that, for a person such as the plaintiff under legal incapacity, proceedings may not be commenced except by a tutor; nor may the tutor commence proceedings except by a solicitor: Uniform Civil Procedure Rules 2005, r 7.14. To the extent that par (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made." 16. In relation to s 50D(2) and what a person "ought to know" about the "fact" identified in s 50D(1)(c), in Baker-Morrison Basten JA said: "[57] The next question was whether the plaintiff's mother ought to have known each of the facts identified in subs 50D(1). The answer to that question must depend upon the effect of subs (2). It purports to provide a definition of what is covered by the phrase 'ought to know'. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken. [58] In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking 'all reasonable steps'. (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.) [59] The phrase 'ought to have known' can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression 'ought to know' was identified by reference only to what the putative plaintiff 'would' have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word 'would' (rather than 'should') is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice. [60] It was not suggested that, in the 26 day period after the accident, the plaintiff's mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff's mother in fact had the relevant knowledge, the defence must fail. [61] It may be added that, even if an inquiry into whether the solicitor acted reasonably were called for, the State neither called evidence to show that he had failed, nor cross-examined him to suggest that he had failed, to take particular steps which he should reasonably have taken in order to supply the mother with appropriate advice or information." 17. In Frizelle v Bauer [2009] NSWCA 239, Basten JA (with whom McColl JA agreed) returned to the issue of knowledge for the purposes of s 50D(1)(c) in the context of a case where the plaintiff sustained serious injuries in a fall on 2 July 2003 and sought legal advice on 17 July 2003 but did not commence proceedings until 5 April 2007. The question was whether the plaintiff knew, or ought to have known, prior to 5 April 2004, that her injury was "sufficiently serious to justify the bringing of an action" within the meaning of s 50D(1)(c). Basten JA said: "[27] There are circumstances in which s 50D may only be satisfied where the applicant has taken all reasonable steps to ascertain a fact which may involve medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed was conceded) that the mother whose child had been injured did not know either that the injury was caused by the 'fault' of the State or that it was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment: at [24]. Nor was it established that there were any steps that she ought to have taken, but did not, within the period of 26 days following the accident, which was the period in issue in that case. [28] The present case falls into a different category. The period during which the necessary assessment had to be made was a period of some nine months after the date of the accident. The fact that further evidential material might need to be gathered was beside the point, so long as the seriousness of the injury could reasonably have been assessed within that period. Further, the issue was not the threshold in the Civil Liability Act with respect to non-economic loss, but the quantum of the applicant's economic loss. No doubt her prognosis remained somewhat uncertain in April 2004, but the primary judge was satisfied that the impairment of her earning capacity, and the likelihood that it would continue, was known to her at least by early 2004. On the evidence, that finding has not been shown to be open to significant doubt. [29] At the heart of the applicant's claim was the suggestion in the affidavit, not fully supported when taken into account with the cross-examination, that she did not believe that she had a cause of action in relation to an injury which was sufficiently serious to justify the bringing of the action because of advice received from her solicitors. His Honour found that the injury 'obviously was a serious one and the plaintiff conceded that in her evidence': Judgment, p 8. He then noted that there was a further question as to whether it was sufficiently serious to justify the bringing of an action, and continued (pp 8-14) to consider whether that was so. In the passages set out above, he concluded that it was sufficiently serious and that the applicant appreciated that fact. [30] There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending upon the advice of professional persons, but, having been given wrong advice, does not have the necessary state of mind. According to Baker-Morrison, the terms of s 50D(1) may not be engaged: see, Baker-Morrison at [59]. That, however, is not the present case and the correctness of that view does not arise." 18. The test for determining what a person "ought to know" about the "fact" identified in s 50D(1)(c) identified by Basten JA has been applied as the law in NSW since Baker-Morrison. In Gillett, Beazley JA (with whom McColl, Campbell, Young and Whealy JJA agreed) said: "[104] In my opinion, there was no error of construction in the challenged portions of Baker-Morrison on this issue. As I understand his Honour's reasons, Basten JA was doing no more than postulating an objective test. For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case." 1. The plaintiff's evidence was that although he knew he was injured on the day of the accident, he did not realise that it was a serious injury until 30 March 2016, after a medical consultation on that day, within the three year period prior to when the Statement of Claim was filed, and well after he had consulted his general practitioner on a number of occasions. The issue here is whether the plaintiff knew or ought to have known that the injury was sufficiently serious to warrant consulting a solicitor to determine whether the evidence was sufficient to justify the bringing of an action on the cause of action. In Best, Payne JA applied the test stated in earlier cases that the court has to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. On the present evidence, the plaintiff accompanied his wife to see a solicitor in relation to her injuries. The incident report establishes that this must have been on or before 28 October 2015: Exhibit A page 29. The plaintiff also stated that he consulted a solicitor in 2016 but could not recall the date. There is no evidence that it was before 29 January 2016. 2. The evidence before the court shows that the plaintiff had made prior claims for compensation including in relation to the 2009 incident and at least one motor vehicle accident: Exhibit 1 pages 82-90; Exhibit 1 page 173. The plaintiff believed he had injured at least his right knee in the April 2015 accident and it was causing him ongoing difficulties in 2015: Exhibit 1 pages 36-38. Mr Khanna gave evidence to the effect that four to five months after the accident (that is in August-September 2015) he was in "terrible pain": T122.48. 3. Unlike in Frizelle above, there would not have been a claim for economic loss in the present case – the plaintiff was receiving a disabled pension. The real potential areas for consideration were non-economic loss, future out of pocket expenses and possibly domestic assistance. The extent of the plaintiff's injuries and the effect on him were central. 4. In those circumstances, in my view a reasonable person in the position of the plaintiff would have taken steps to consult a solicitor in relation to his condition after the consultation with his general practitioner on 22 October 2015 (see Exhibit 1 page 36). He had been with his wife to see a solicitor arising out of the same incident. On the medical evidence before the court, an injury to the plaintiff's knee would have been clear and established. It was an injury which was causing ongoing problems including ongoing "terrible" pain to the plaintiff (on his evidence). In my view, the injury was therefore a serious injury within the section. In these circumstances, in my view the plaintiff ought to have known that he needed to consult a solicitor in 2015 to ascertain whether the injury was sufficiently serious to justify the bringing of an action on the cause of action. See the plaintiff's claimed particulars of damage. The plaintiff also indicated that the accident had caused some pain in his lower back region. If the plaintiff had consulted a solicitor, which he should have, in my view the solicitor would have taken steps to take a statement from the plaintiff, to obtain a medical report and determine the plaintiff's ongoing problems. On the evidence, this would have established that the injury was sufficiently serious to justify an action assuming the plaintiff's evidence of the incident was accepted. That is because it would have been made clear that there were reasonable prospects of the threshold in s 16 of the CLA being exceeded. I find that this would all have occurred well before 29 January 2016. However, I reject the defendant's primary submission that all relevant facts were known to the plaintiff on and from 18 April 2015. 5. Accordingly, the plaintiff's action has been brought after the expiration of a limitation period being a period of three years running from the date on which the cause of action was discoverable by the plaintiff. It is therefore, in my opinion, barred under s 50C of the Limitation Act. 6. In case I am in error in relation to this conclusion, I proceed to consider whether the plaintiff's claim would otherwise have been established. Duty and breach of duty of care 1. In paragraph 5 of the Amended Statement of Claim, it is pleaded that the defendant owed the plaintiff a duty of care. It was the plaintiff's wife who tripped on the legs of the chairs and fell. The question of a duty of care owed to the plaintiff's wife by the defendant is also relevant. 2. Paragraph 12 of the Amended Statement of Claim refers to negligence by the defendant. The particulars of negligence set out in the Amended Statement of Claim are very general. However, it appears that it is particularised that the defendant was negligent by the failure to have a safe layout of the floor of the store, in failing to arrange the stock to avoid the risk of injury and by creating a risk of harm or a hazard. Particular 12.7 refers to negligence by "putting large stacks of chairs where shoppers may trip over them". A failure to warn is referred to in paragraph 12.9. In paragraph 12.8, a reference to a failure to conduct a risk assessment is referred to. There was no evidence before the court, including from an expert, as to whether a risk assessment was conducted and what that assessment would have revealed if it had been conducted. Accordingly, the relevant negligence relied upon is the placement of the stack of chairs and whether it created a hazard or a risk of harm that was not insignificant in the light of where the stack was placed. The need for a warning is also relied upon. The defendant has denied liability: see paragraph 18 of the Defence. 3. There is no reference in the Amended Statement of Claim to the floor being slippery and providing a hazard. There were various mentions in the oral evidence by the plaintiff and Mrs Khanna of the floor being slippery. As an allegation of the floor being in a negligently slippery state is not particularised in paragraph 12 of the Amended Statement of Claim, I exclude it from my consideration. Mr Khanna in his submissions stated that he "forgot" to put the allegation in the Amended Statement of Claim (paragraph 10 of his submissions). In any case, although photographs showed the floor was shiny, there is no expert evidence that the floor was in a negligently slippery state. Similarly, there was no evidence that other people had slipped on the floor or found it slippery. The evidence from Mr Khanna and Mrs Khanna was very general and unpersuasive on this matter. I therefore limit my main consideration to the layout of the store by the placement of the stacks of chairs where they were stacked and the nearby table. In addition, the case of the plaintiff is that Mrs Khanna tripped on the legs of the stack of chairs, not that she slipped on the floor. In relation to the allegation of debris on the floor, this was also not pleaded or particularised by the plaintiff. 4. The plaintiff gave evidence, which I accept, that the photographs in Exhibit A were taken by him on the day of the accident and show where the chairs were stacked and placed when the plaintiff's wife tripped. I have also accepted that the plaintiff's wife by her left foot tripped on the front left legs of the chairs in the stack of dark coloured chairs closest to the front of the store as shown in Exhibit A pages 45-46. 5. The question therefore arises as to the relevant duty of care, if any, which was owed to the plaintiff and his wife by the defendant as the occupier store owner. The plaintiff and his wife were customers attending the defendant's premises to shop. 6. In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]- [8], McColl JA stated as follows: "Duty of care 7. It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned. 8. Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows: "[159] The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]." 1. At paragraph 82 in the same case, Barrett JA (with whom Ward J agreed) stated as follows: "Duty of care 82. McDonald's was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the stairs: Civil Liability Act s 5B; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [50]. That duty subsisted, in the present case, in relation to premises visited by many people each day." 1. In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253, Leeming JA (with whom McColl JA agreed) stated as follows at paragraph 53: "53. Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care"." 1. Based on the principles stated in these cases, in my view the defendant Woolworths in the present case owed the plaintiff and his wife as customers attending the store of the defendant, a duty to take reasonable care to avoid a foreseeable and not insignificant risk of injury to them arising from the state of the store where a customer could reasonably walk, including in relation to the placement of goods, on the assumption as an element contained in the scope of the duty of care, that the plaintiff and his wife would exercise reasonable care for their own safety. 2. In paragraphs 49-51 of the Patrick Stevedores case above, Leeming JA stated as follows: "49. "Negligent" in this context means failure to exercise reasonable care and skill: s 5. It was not disputed that the risk of someone slipping, falling and injuring himself or herself while stepping up into the hut was both foreseeable and not insignificant. Even so, s 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant's position would have taken the precautions. The fact that s 5B(1)(c) is a necessary element of a plaintiff's success in litigation to which it applies is plain on the face of the section, and was confirmed by the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [34]. 50. As McColl JA observed in Jackson v McDonald's Australia Ltd at [11], the requirement in s 5B(1)(c) reflects the formulation of principle by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663 that the measure of the discharge of Patrick Stevedores' duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. That formulation was approved in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. 51. The essential issue posed by s 5B(1)(c) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak at [31] and [40]. The court's determination of these questions is subject to the limitations imposed by s 5C of the Civil Liability Act, including in paragraph (c) that "the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."" 1. In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom White JA agreed) stated in paragraph 44 that what precautions against the relevant risk of harm were reasonable in the circumstances is to be determined taking account of s 5B of the CLA. That Act applies in the present circumstances. 2. It is accordingly necessary to identify correctly the risk of harm in the present case. In paragraphs 47-48 of Lloyd v Thornbury, above, Gleeson JA stated the following in relation to the identification of the risk of harm: "47. It is well established that the correct identification of the risk of harm is necessary before "one can assess what a reasonable response to that risk would be": Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 (Dederer) at [59] (Gummow J). 48. In Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [118]- [122], Leeming JA (Basten and Simpson JJA agreeing) emphasised two matters. One is that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. The other is that while there may commonly be a range of appropriate formulations of the generality of the risk of harm, ordinarily it is unnecessary and undesirable to define the relevant risk of harm with too much particularity. See also: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] (Barrett JA, Gleeson JA and Tobias AJA)." 1. In my view, the relevant risk of harm in the present case was the risk that customers of the Masters store walking within the premises would not see or reasonably perceive stacks of chairs at the end of an aisle and would trip on the chair legs and thereby injure themselves. In relation to the plaintiff, the risk of harm was of someone close to a person falling after tripping on the chair legs attempting to stop their fall and being struck by the person falling and thereby injuring theirself. 2. In the Patrick Stevedores case, above, Leeming JA stated that the measure of the discharge of a defendant's duty of care is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. See also Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. This must be considered prospectively and the fact that measures that could have been taken by Woolworths to divert or diminish the risk that actually materialised, does not necessarily establish breach. As stated above, it is also always assumed that users of the store will exercise reasonable care for their own safety. 3. Section 5 of the CLA defines "negligence" as a failure to exercise reasonable care. The court must consider ss 5B and 5C of the CLA which provide as follows: "Division 2 Duty of care 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)— (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. The plaintiff submits that the defendant should not have placed the stacks of chairs near the end of the aisle thereby creating a trip hazard having regard to the limited space at the end of the aisle for customers to walk, the angle of the chair legs and the number of customers in the shop. 2. The defendant submits that the stack of chairs in question and the white table were obvious and could clearly be seen by any customer exercising care for their own safety. Their placement was obvious. Mrs Khanna agreed that the chairs could be seen. It was submitted that any reasonable person would realise that the lowest chair on the stack of chairs would touch the floor. A similar submission was made in relation to the legs of the white table shown in Exhibit A pages 44-45. It was submitted that the plaintiff's wife tripped purely through a failure to exercise reasonable care for her own safety. 3. I consider the elements in s 5B of the CLA in the light of s 5C on the facts of the present case: 1. The risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known – in my view, it was not foreseeable, in the sense of being a risk of which the defendant ought to have known, that a customer of the store may trip on the legs of a stack of chairs placed near the end of the aisle and thereby fall over. I accept that it was foreseeable that if someone did fall as a result of negligence that someone near them could take action to stop the fall and thereby injure themselves; 2. The risk was not insignificant – in my view, the risk of someone not seeing the stack of chairs in question and paying attention to the legs on the base of the chairs and thus tripping was insignificant. The plaintiff's wife accepted that someone could see the stack of chairs from a long distance away. The stack of chairs was in my view obvious. Any reasonable person would realise that a stack of chairs would have a chair at the bottom of the stack whose legs would touch the floor. Reference was made by the plaintiff to the fact that the legs of the chairs came out at an angle (he asserted they were jutting out). There was very limited evidence as to this. The photographic evidence, in relation to which caution must always be exercised, did not indicate that the legs came out at an unusual or unreasonable angle: see Exhibit A pages 45-47 and T315.17 and T316.49. There was no expert evidence on the issue. Even taking into account there would be expected to be many customers in the store, in my view the risk was insignificant; 3. Whether a reasonable person in the position of the defendant would have taken the precautions indicated – the precautions indicated are set out in the particulars of negligence in paragraph 12 of the Statement of Claim. In my view, on the evidence, placement of the chairs in the location the stack was placed did not create a hazard. On the photographic evidence, there were four stacks of chairs next to each other. In my view, there was nothing unreasonable in placing the chairs where they were placed. The photographic evidence indicates a wide, open area for pedestrians to walk at the end of the aisle. If the evidence of the plaintiff and his wife is accepted that they entered the store and then turned right (whether after walking up an aisle or not), even taking into account considerable pedestrian traffic, in my view a reasonable person in the position of the defendant would not have taken the precautions indicated of moving the chairs to another location; 4. The probability that the harm would have occurred if care were not taken – in my view, the probability is very low. There was no evidence of any other falls arising from the stack of chairs in question. The stack of chairs appears obvious on the photographic evidence. In my opinion, it was not probable at all that a reasonable person in the position of the plaintiff or his wife exercising care for their own safety, would not have seen or perceived or readily observed the stack of chairs including the legs of the chairs. In my view, it is improbable that a person would trip on the legs of the chairs and fall and strike someone near them causing the latter person injury; 5. The likely seriousness of the harm – a person not seeing the stack of chairs and falling by tripping on the leg of a chair may involve serious injuries to themselves and others in the vicinity; 6. The burden of taking precautions to avoid the risk of harm – there was not a significant burden on the defendant in moving the stacks of chairs to another location. However, wherever the chairs were moved, they would create some minor and insignificant risk of tripping if a person did not exercise reasonable care for their own safety; 7. The social utility of the activity that creates the risk of harm – it is clearly important that people have safe access to the shopping stores to look at goods before purchasing; 8. The risk of injury of falling by tripping on the leg of the chair is in my view obvious; 9. Taking into account all of the matters I have indicated, in my view a reasonable person in the position of the defendant in the present case would not have taken any of the precautions particularised in paragraph 12 of the Statement of Claim. 1. Taking into account all of the matters which I have indicated, in my view there was no breach of duty of care by the defendant. In considering this, I have taken into account each of the particulars of breach in paragraph 12 of the Amended Statement of Claim. I have also considered the plaintiff's submissions on the breach issue. 2. I would also have reached the same conclusion even if the plaintiff's wife tripped on the legs of the white collapsible table shown in Exhibit A page 44 as opposed to the left front legs on the last stack of dark coloured chairs. The table and its legs were clear and obvious to any reasonable customer. The risk of a customer tripping on the table leg was not foreseeable, was insignificant and a reasonable store operator would not have removed the table. The probability of harm occurring if the table was not removed was in my view very low in relation to a customer exercising reasonable care for their own safety. Obvious risk 1. In paragraph 12 of the Defence, the defendant pleads that the plaintiff's injuries were due to the manifestation of an obvious risk. Reference is made in particulars to ss 5F, 5G and 5H of the CLA. 2. Sections 5F, 5G and 5H of the CLA provide as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if— (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection." 1. In my view, any reasonable person in the position of Mrs Khanna and the plaintiff on the day of the accident, particularly in the light of the evidence of there being many customers in the store and there being large amounts of goods on display, would have been careful when they were walking in the store. Having regard to the evidence of the plaintiff and his wife and the photographic evidence in Exhibit A at pages 45-48, any reasonable person who was a customer on the day of the accident exercising due care for their own safety would have been readily able to see the relevant stack of chairs and would have realised that the bottom chair in the stack of chairs would have legs having contact with the ground which may have come out at an angle: see T312.40-T316.49 especially at T313.44, T315.1, T315.17 and T316.49. They therefore would have taken reasonable steps to ensure that they were well away from the bottom legs of the chair whilst walking in the store. 2. In my view, the risk in the present case of the plaintiff falling if she did not exercise reasonable care for her own safety in walking near the stack of chairs was an obvious risk within s 5F of the CLA as it would be obvious to a reasonable person in the position of Mrs Khanna and the plaintiff taking care for their own safety. The risk was clear and patent. Mr Khanna was essentially walking near his wife but further away from the stack of chairs. The duty owed to him was satisfied by the defendant taking reasonable precautions to avoid a trip and fall to another customer on the chairs. The stack of chairs in my view was clearly able to be seen by any approaching customer: see T315.1. There was nothing in the circumstances of the location of the chairs or the nature of the chairs that rendered it necessary for Woolworths to draw further attention to the chairs by way of a warning. The legs of the chairs were a hazard of an ordinary character that a person walking through the store would be expected to encounter and could be expected to watch out for: Council of the City of Sydney v Bishop [2019] NSWCA 157 at [29]; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 at [355]. Woolworths was entitled to assume that a person in the position of Mrs Khanna would take care not to trip on the legs of the chairs. Accordingly, the risk in the present case was an obvious risk within s 5F of the CLA and there was thus no proactive duty on the defendant to warn the plaintiff or Mrs Khanna of the obvious risk. Negligence based on a failure to warn is therefore rejected. 3. I would have reached the same conclusion in relation to the white collapsible table shown in Exhibit A page 44 and its supporting legs. Causation 1. Sections 5D and 5E of the CLA provide as follows: "Division 3 Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent— (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 1. The plaintiff thus has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings. See Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As stated by the High Court, the determination of factual causation under s 5D of the CLA involves the application of the "but for" test of causation: this requires a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm. That is that on the balance of probabilities the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong, above, at [18]. 2. In my view, consistently with my factual findings, the cause of the plaintiff's wife tripping was her failure to take reasonable care to look where she was walking in the light of the readily observable stack of chairs. I accept the defendant's submissions on this issue. 3. If, contrary to the views I have expressed as to the breach issue, the stack of chairs should not have been located where it was and should have been placed elsewhere because of it creating an unreasonable hazard, in my view it is more likely than not that the fall of Mrs Khanna would not have occurred. There would have been no stack of chairs to trip on. If the fall of Mrs Khanna had not occurred, then she would not have fallen onto the plaintiff thereby causing him to fall to the ground and injuring himself. In those circumstances, causation would have been established on the "but for" test applicable. I reject the defendant's submission to the contrary. Contributory negligence 1. Contributory negligence is pleaded in paragraphs 15 and 16 of the Defence. The particulars in paragraph 15 are general and refer to a failure by the plaintiff to pay attention or keep any or any proper lookout and a failure to take any or any adequate care and precautions for his own safety. 2. Sections 5R and 5S of the CLA provide as follows: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose— (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 1. In Lloyd v Thornbury, above, Gleeson JA stated as follows at paragraphs 92-94: "92. The question of whether a person has been guilty of contributory negligence is to be determined objectively – whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing). 93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence. 94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]- [15] (Basten JA)." 1. What is in issue here is the contributory negligence of the plaintiff not of Mrs Khanna. An analysis has to be made objectively whether the plaintiff has taken that degree of care for his safety that an ordinary reasonable person would take in the circumstances. This involves the ss 5B and 5C analysis, thus assessing the matter by reference to the risk of harm which is the subject of the plaintiff's claim for damages in the light of the precautions that a reasonable person in the plaintiff's position would have taken against the risk. 2. The plaintiff submits that there was no contributory negligence in the present case by him. 3. In my view, that submission should be accepted. It is clear in my view that Mrs Khanna was contributorily negligent. She should clearly have seen the stack of chairs and avoided a trip on the legs of the stack. An ordinary reasonable person in her position would have ensured that they walked sufficiently far away from the stack to avoid the chair leg. 4. However, the plaintiff did not trip on the chair leg. He was walking near her. There is nothing to indicate in my view applying the ss 5B and 5C analysis that he did not take that degree of care for his safety that an ordinary reasonable person would take in the circumstances. There is no satisfactory evidence that his injuries were caused by attempting to help his wife up as opposed to the fall. In my view, contributory negligence is therefore not established against the plaintiff in the event a breach of duty is established. For these reasons, I reject the defendant's submissions on this issue. Damages Introduction 1. I have found no breach of the duty of care pleaded by the plaintiff. In the event that I am in error in this conclusion, I will briefly consider the question of damages. Damages are difficult in the present case to assess because of the plaintiff's substantial pre- and post-accident medical conditions. 2. The following submissions as to damages are made by the parties. Head of damage Plaintiff Defendant Non-economic loss $600,000.00 Nil Past out-of-pocket expenses $335,775.17 Nil Future out-of-pocket expenses $450,089.94 Nil Past and Future gratuitous care $115,700 (past) Nil $413,342.86 (future) 1. The plaintiff's claims exceed the jurisdiction of this court. 2. There was no medicolegal expert evidence obtained by and tendered by the plaintiff. There were, however, substantial treating doctor evidence and consultation notes. In addition, the defendant tendered voluminous material. The plaintiff tendered two medico-legal reports obtained on behalf of the defendant as discussed above. 3. I will proceed to consider the various heads of damages. Non-economic loss 1. As stated above, the claim is governed by the CLA. Section 16(1) of the CLA provides that no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. Section 3 of the CLA defines "non-economic loss" as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. 2. There is no evidence before the court that as a result of the accident there has been a reduction in the plaintiff's life expectancy. In addition, there is no evidence of disfigurement as there is no satisfactory evidence that any scarring occurred or that any operations which have occurred in relation to the plaintiff since the accident were caused by the accident. Therefore, the court must consider pain and suffering and loss of amenities of life. 3. The plaintiff claims that since the accident his pain has increased considerably and his diabetes has also worsened due to an inability to exercise. As stated above, the plaintiff claims $600,000. Under the Civil Liability (Non-economic Loss) Amendment Order 2021 the maximum amount of damages which may be awarded for non-economic loss is $693,500 as at 1 October 2021. 4. The plaintiff claims a worsening in his psychiatric health as a result of the accident. There is no medicolegal evidence which establishes that claim. The report of Dr Samuell dated 20 August 2019 notes that the plaintiff has a persistent depressive disorder. However, it is also noted that the plaintiff was being treated for depression prior to the accident. Dr Samuell expresses the opinion that it is unclear that the 2015 accident contributed to the plaintiff's depression while accepting that that is a possibility. Dr Samuell notes: "on balance, the contemporaneous medical notes would suggest that if there was any contribution from the subject accident from a mental health perspective, that it was incremental". The view is expressed that no clear nexus was drawn by the plaintiff's general practitioner in consultation notes between a claimed worsening of the depressive disorder and the injury. 5. Dr Pearson, in his 6 November 2020 report, does not refer to the 2015 accident as being connected with the plaintiff's depression. The plaintiff claims this was an oversight, but that is not at all clear and established. 6. In the period between the accident and the trial, the plaintiff continued to have serious heart and diabetes issues. 7. As concluded above, I am not satisfied that any worsening in the plaintiff's psychiatric condition was due to the accident. 8. I am also not satisfied on all the evidence that any worsening in the plaintiff's diabetes or heart condition was due to the accident. There is no satisfactory medicolegal evidence to establish that. While I have accepted that the plaintiff saw his general practitioner Dr Doan, probably on 20 April 2015 (see the request for the CT of the cervical spine at Exhibit A page 54), the result of this consultation was to arrange for a CT of the cervical spine. The history provided in the radiologist's report at Exhibit A page 54 refers to "2 months of radicular symptoms radiating to C8". 9. Having regard to the entry for 12 June 2015 in the general practitioners notes (Exhibit A page 56), I am satisfied that the plaintiff injured his right knee whilst trying to break his wife's fall at the time of the accident and that it was painful as at that time. This is supported by later entries: see the 9 July 2015 entry. Entries relating to left arm issues appear to have been long-standing. Neck issues also appear to have been long standing. The plaintiff claims that he injured his lower back and right shoulder in the accident. There are no references to this in the consultation notes from his general practitioner until 25 February 2016 when an x-ray of the lumbar spine was requested. An investigation of the lumbar spine was not requested by the general practitioner on 20 April 2015 when the CT scan of the cervical spine was sought. 10. Despite the submissions from the defendant, I accept that the plaintiff injured his right shoulder and lower back in the accident but it was only a minor injury having regard to the lack of reference to either area until February 2016. The medical evidence which I have referred to above, shows the plaintiff having low back pain and right shoulder pain from other incidents and accidents before the subject accident. See for example the entry on 30 August 2013 (Exhibit 1 page 49). A frozen shoulder with supraspinatus tendinosis and bursitis was referred to in 2010 (Exhibit 1, pages 71 and 75). The plaintiff's documents relating to the 2009 incident referred to pain in his shoulders and lower back: Exhibit 1 pages 78-81, 84, and 86 where the plaintiff states that both his shoulders were frozen. The plaintiff claims that his frozen shoulders were due to his diabetes. There was no evidence to support that. The plaintiff also claimed that his complaints arising from the 2009 accident were at the upper back level. However, no radiological investigations of the lumbar spine were ordered in April 2015. 11. I assess the plaintiff on the basis that the accident caused an injury to his right knee involving pain and limitations of movement and it exacerbated his back, hip and shoulder injuries. The report of Dr Machart concludes that there was no evidence of substantial or long-lasting injury to the plaintiff in the accident. However, Dr Machart referred to limited records including radiological reports. The report of Dr Vasili, orthopaedic surgeon, dated 20 March 2020 notes an irritable right hip joint and right knee articulation. I prefer the treating doctor's reports to Dr Machart's report. Whilst I accept that the plaintiff has ongoing limitations relating to his knee injury and the aggravation to his shoulder and back injury, I am not satisfied on all the evidence that the plaintiff's current position is all linked to the 2015 accident in the light of the medical evidence. 12. Taking into account all of the evidence and the factors I have referred to above, I assess the plaintiff's severity of non-economic loss as a proportion of a most extreme case as being 21%. This equates to 4% as a proportion of the maximum amount that may be awarded for non-economic loss being 4% of $693,500. This amount is $27,740. This is to be reduced to $27,500 in accordance with s 16(4) of the CLA. I therefore allow $27,500 under this head. Past out-of-pocket expenses Commercial paid expenses 1. The plaintiff gave oral evidence that prior to the accident his son used to undertake the lawn mowing on most occasions: T270.9-.22. The plaintiff said he did the car washing/cleaning activities. Mrs Khanna gave evidence that the plaintiff did the mowing activities prior to the accident: T339.6. The plaintiff said that after the accident his son used to come and clean the car and mow the lawn: T124.48. Having regard to the plaintiff's evidence at T124, it seems that the plaintiff's son now undertakes the lawn mowing every fortnight to three weeks: see T124.19. That will be considered in relation to past gratuitous care. No commercial payments were established. 2. In relation to car washing, the plaintiff used to clean and wash the car prior to the accident. Now his wife does it or his son arranges it by paying money at a car wash: T127.12. No receipts were in evidence relating to this. I accept the plaintiff's evidence on this issue. I allow a buffer of $1,500 for past expenses relating to the car washing/cleaning. 3. There was some evidence about the plaintiff and his wife obtaining domestic assistance relating to cleaning. However, the evidence was that his wife completed these duties prior to the accident. The plaintiff did not contribute in any significant way. Accordingly, this expense is linked to his wife's injuries not the plaintiff's injuries. I allow nothing for past commercial cleaning expenses. 4. There was some evidence about dog walking being required, but it was not established to my satisfaction that there was any cost incurred in the past relating to this. Past medication and Medical expenses 1. I was not satisfied on the evidence that the increase in the plaintiff's diabetes or heart medication was established to be linked to the accident. The plaintiff gave evidence of increased use of painkillers. Again, the evidence in relation to this was very limited and there was no satisfactory medicolegal evidence. I would allow a lump sum of $2,000 for past prescription and non-prescription painkilling medication arising out of the injuries in the accident. 2. In relation to past medical expenses, the defendant submits that no amount should be ordered and relies on the document at Exhibit 1 pages 261-282 as signed by Mr Khanna on 30 May 2018 (Exhibit 1 page 162). There Mr Khanna has ticked those services said to have been provided to him in relation to a claim described as "Compensation type MVA" relating to an injury which occurred on 30 October 2009. Further, when Mr Khanna saw the doctor relating to his knee following the April 2015 accident he seems to have seen the doctor also for other reasons relating to other medical issues: see Exhibit 1 pages 34-39. This seems to support the approach which Mr Khanna took at Exhibit 1 pages 261-282. I therefore allow no amount under this head in the absence of more definitive evidence. If I am wrong in taking this approach, having regard to the poor state of the evidence I would only have allowed a lump sum amount for past medical expenses of $500. Future out-of-pocket expenses 1. The plaintiff claimed a substantial amount for future out-of-pocket expenses. The evidence was limited in relation to non-prescription and prescription pain medication. The plaintiff claimed amounts for physiotherapy and podiatrist therapy. I was not satisfied that the podiatrist amounts claimed were likely due to the accident as opposed to the plaintiff's diabetes. I was also not satisfied that the diabetes and heart medication increases were due to the accident. 2. Doing the best I can on the limited evidence, I would allow physiotherapy treatment once a fortnight for two years: see Exhibit A pages 56 and 65. I note the plaintiff's evidence that he had been referred by his general practitioner for five sessions costing $95 each which he could not afford. I would allow a lump sum of $4,000 for this physiotherapy treatment. 3. In relation to medication, there was very little evidence on the point. Doing the best I can, I would allow $3,000 for future painkilling medication. I would also allow $2,000 for the plaintiff to have some initial consultations with a pain specialist. 4. In relation to future lawn mowing and car cleaning, I will consider this in relation to future commercial care. I was not satisfied on the evidence that the plaintiff's requests for a gym program and the other drugs claimed were established. 5. The plaintiff will also need to see his general practitioner for review every six months. There is no suggestion that further surgery is required connected to the accident. The need for surgery is inconsistent with Dr Machart's report. Although the plaintiff sees his general practitioner regularly for numerous other conditions (including with similar frequency as before the accident) I would allow a lump sum of $1,000 for future general practitioner consultations only related to the injuries in the accident. This allows for the plaintiff to seek some consultations unconnected to his other medical conditions. 6. In his 23 November 2020 report (Exhibit A page 90), Dr Vasili notes that he recommended to the plaintiff that he consult a neurologist to be assessed for peripheral neuropathy relating to his lower back and knee problems since the 2015 accident. I would allow a lump sum of $1,000 for two consultations with a neurologist in relation to this issue. Past gratuitous attendant care services 1. The plaintiff makes a considerable claim for past gratuitous attendant care services. The items mentioned by the plaintiff in his evidence were dog walking, car washing and lawn mowing. The evidence is that the plaintiff's wife undertook most of the domestic tasks internally prior to the accident. Mrs Khanna gave evidence that her son and daughter-in-law assisted her considerably after her accident. There is no suggestion that the plaintiff contributed substantially to domestic tasks prior to the accident. Whilst he gave some assistance with cooking and minor tasks, this appears to be as part of the general division of domestic tasks and, on the evidence, his contribution to tasks internally appears to have been minor. 2. Section 15 of the CLA provides as follows: "15 Damages for gratuitous attendant care services: general (1) In this section— attendant care services means any of the following— (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services— (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that— (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)— (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed— (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for— (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or (ii) in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services. Note— By reason of the operation of section 3B(1)(b), this section does not apply to the determination of civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989. Section 15A makes provision with respect to the determination of damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 of the Dust Diseases Tribunal Act 1989." 1. Accordingly, no damages may be awarded to a claimant for gratuitous attendant care services unless the services were provided or to be provided for at least six hours per week and for a period of at least six consecutive months. 2. I am not satisfied on the evidence that the lawn mowing and car washing assistance provided by the plaintiff's son and/or his wife satisfies the intensity and duration requirements in s 15(3). The plaintiff's wife completed the grocery tasks with him prior to the accident and completes them now. In relation to dog walking, the plaintiff's wife gave evidence that she walked the dog prior to the accident both in the morning and in the afternoon. The plaintiff gave evidence that he also walked the dog. Currently a neighbour's son walks the dog and the plaintiff's own son walks the dog one day a week. 3. It appears therefore that his wife undertook the majority of the dog walking tasks prior to the accident. I am not satisfied on the evidence that it is necessary to pay anyone for walking the dog or that the duration or intensity requirements in s 15 are satisfied in relation to the dog walking. Also, the evidence is that the plaintiff's current residence has a backyard. 4. When I combine the lawn mowing assistance, the car washing assistance and other minor assistance provided to the plaintiff since the accident, I am not satisfied that the intensity requirement in s 15(3) of the CLA is satisfied. Accordingly, I do not award any amount for past gratuitous care. Future gratuitous attendant care services 1. Similarly, I am not satisfied that the s 15(3) requirements are established in relation to future gratuitous attendant care services. The lawn mowing by the son is only done for about 45 minutes once every two to three weeks. Dog walking seems to have been the plaintiff's wife's primary responsibility prior to the accident. I see no reason why the neighbour's son or the plaintiff's own son would not continue to walk the dog in the future. The dog is also nine years old and has a limited life expectancy. 2. I also see no medical evidence establishing the rehabilitation claim sought for the future. Future commercial care 1. In my view, however, an amount should be allowed for future commercial assistance relating to the lawn mowing and the car washing. The plaintiff's son is a married man and is no doubt busy. He may have increased family responsibilities in the future. It seems that car washing expenses are already paid for by the plaintiff. In my view an amount for future lawn mowing and gardening assistance as well as car washing assistance is appropriate as being necessary and likely to arise in the future: Miller v Galderisi [2009] NSWCA 353. I accept that the plaintiff needs to establish a need for future paid commercial assistance in the future: Smith v Alone [2017] NSWCA 287 at [73]-[77]. 2. The plaintiff, of course, has substantial other medical complaints. His heart and diabetes conditions would render it likely that he would need commercial assistance in relation to lawn mowing, gardening and car washing in the future anyway at some stage. 3. Doing the best I can in all the circumstances on the evidence, I would allow an amount for 10 years at $50 per hour for three hours per month. This arrives at the sum of $14,294.60 ($50 x 3 hours per month = $150 x 12 ÷ 52 = $34.62 per week x 5% multiplier for 10 years being 412.9 = $14,294.60). 4. I reject any further claim for future commercial assistance. 5. The defendant submitted that the evidence was simply too unclear to allow any claims for past and future gratuitous assistance or commercial assistance. While I accept those submissions in relation to past and future gratuitous assistance, in my view a need to make an allowance for future commercial assistance for lawn mowing and car washing is established for the reasons which I have given. Conclusion 1. Accordingly, I would have allowed the following amounts: Head of Damages Non-economic loss $27,500.00 Economic loss No claim was made Loss of superannuation No claim was made Past out of pocket expenses $3,500.00 Future out of pocket expenses $11,000.00 Past gratuitous assistance $Nil Future gratuitous assistance $Nil Future paid commercial assistance $14,294.60 Total $56,294.60 Determination 1. As indicated, I do not consider that the plaintiff has established negligence in the present case. 2. Accordingly, for the above reasons, 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. 3. Liberty to the parties to apply within 14 days for a different costs order to that in (2) above. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2021