New South Wales District Court CITATION: Deborah Lee Ezzy v The Uniting Church in Australia Property Trust (NSW) Trading as Wontama Homes for the Aged [2007] NSWDC 204 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 24/10/06-27/10/06 JUDGMENT DATE: 12 October 2007 JURISDICTION: Civil JUDGMENT OF: Phegan DCJ DECISION: Verdict and judgment for the plaintiff in the amount of $290,274.60; Defendant to pay the plaintiff's costs as agreed or assessed CATCHWORDS: Occupier's Liability - Slip and Fall - Standard of Care - Damages LEGISLATION CITED: Civil Liability Act 2002 CASES CITED: Browne v Dunn (1894) 6 R 67 Griffiths v Kerkemeyer (1977) 139 CLR 161 PARTIES: Deborah Lee Ezzy v The Uniting Church in Australia Property Trust (NSW) Trading as Wontama Homes for the Aged FILE NUMBER(S): 5/2005 Mr P Maiden SC (Plaintiff) COUNSEL: with Mr R Foord (Plaintiff) Mr M Vesper (Defendant) SOLICITORS: Legal Aid Commission of New South Wales (Plaintiff) Sparke Helmore (Defendant) - - JUDGMENT Facts 1 The plaintiff, Deborah Lee (Debbie) Ezzy, was born on 6 April 1959 with Downs Syndrome. She is now 48 years of age and lives with her parents Percy (Ron) and Dorothy Ezzy on a 165 acre farm. The Ezzy's are retired and the farm, which is situated about 25 kilometres from Orange, is no longer active. Ron Ezzy is 72 years old and Dorothy Ezzy 69 years old. Both are still physically active and have until now been able to provide the level of care needed by the plaintiff. The plaintiff has five siblings, one older brother and four younger brothers and sisters. 2 In February 2002 the plaintiff was a regular client at the defendant's day care centre in Summer Street Orange, known as "Wontama". She went there partly to provide respite for her parents and partly to contribute to a program of social interaction which had been designed for her by Ms Nanette Mulcahy, a Community Support Worker, who had been involved in developing the plaintiff's life skills for some six to seven years up to that time. Most of the clients attending the day centre lived in Orange and were collected each morning by bus and brought to the centre. Because the plaintiff lived some distance out of Orange, independent arrangements had to be made to transport her to and from the centre on the days she attended. On the morning of 14 February 2002 she was left at the centre by her mother at about 10.00am, before the other clients. Apart from staff in attendance the centre was relatively deserted, except for a section of the building used by persons attending classes run by the University of the Third Age (U3A). The plaintiff was to be collected by Ms Mulcahy that afternoon and taken to meet her mother to go line dancing, another activity which was part of the plaintiff's weekly routine. 3 Ms Wendy Orford, the defendant's diversional therapist and one of the staff on duty on the morning of 14 February 2002 when the plaintiff arrived, gave evidence that at about 10.15am a woman attending the U3A classes reported that a girl was on the floor of the women's bathroom crying. The women's bathroom was located adjacent to the area used by U3A classes, but was also used by clients of the day care centre. Ms Orford followed the woman to the bathroom and found the plaintiff sitting on the bathroom floor still sobbing. With the aid of a diagram, taken from an engineer's report prepared by Dr Len Cubitt and dated 18 January 2006 (Exhibit A), Ms Orford described the plaintiff's position when Ms Orford first saw her. The plaintiff was sitting upright and unsupported at the corner of the bathroom vanity immediately inside the doorway. The door, which opened from right to left as a person entered the bathroom, was in an open position when Ms Orford arrived. On the left of the door, and behind it when opened, was a shower recess. The vanity to which I have already referred was attached to the right hand wall immediately inside the doorway. It contained two adjacent washbasins. On the far side of the room were two toilets, each in a cubicle accessed by its own door. Using a copy of the floor plan from Exhibit A, Ms Orford drew the plaintiff's position as described and showed her legs crossed in front pointing towards the open door (Exhibit 3). 4 Having checked the plaintiff for any visible sign of injury, Ms Orford hurried back to the other end of the building where the staff offices were situated in order to "raise the alarm". She located Mrs Hiltje Miller, the manager of the centre, and Ms Katrina Forrest, her own assistant. All three returned to where the plaintiff was still sitting on the floor and, after further examination, Ms Orford and Mrs Miller assisted the plaintiff up from the floor and into a chair, which had been placed in an area clear of the door in front of the vanity and close to where the plaintiff had been found. According to both Ms Orford and Mrs Miller, they saw a patch of moisture on the tiles where the plaintiff had been sitting, that is, the area which had been covered by the plaintiff's buttocks while she remained on the floor. Mrs Miller gave further evidence that she saw drops of water beside where the plaintiff had been sitting. Ms Orford could not remember seeing any signs of water on any other part of the floor. 5 After the plaintiff had been further examined in order to ensure that she was able to walk, Ms Orford and Ms Forrest helped her to one of the two toilets which she used under their supervision. By this time the bus had arrived with the majority of the day clients and Ms Forrest left to assist in unloading the bus. The incident was recorded on a CAPS (Complaints, Accidents, Problems, Suggestions) Form (Exhibit B). Ms Orford completed the first part of the form, "What happened", with the following entry: Debbie slipped as she entered the toilet area. Landing on floor. Member of U3A heard her moaning and came to activity room to get help. Against the heading, "Extent of Injury", Ms Orford wrote: Bruising to both knees, bruising to (R) upper arm and layer skin removed size of one cent coin. Because the original entry was made soon after the incident and the time recorded on the form was 10.15am, the additional words which followed must have been added later: Bruising to forehead (R) side became apparent in afternoon. 6 The reverse side of the CAPS form was completed by Mrs Miller in her capacity as manager. It was signed by Mrs Miller and dated 15/02/02. Referring to her own assessment of the plaintiff, Mrs Miller recorded: Bruising to knees and (R) elbow. Debbie was able to move both arms and legs without complaining of pain. No bump on head noticed until 3 hours later not evident on initial assessed [sic] by CSM [Mrs Miller] or Physio. Physio did assessment within the hour of Debbies fall. Mrs Ezzy informed of fall x 2, advised to take Debbie to doctors if there was any concern. 7 The plaintiff's medical history from the time she left Wontama with Ms Mulcahy at about 3.00pm on the afternoon of her injury is relevant only to assessment of damages and therefore better left for consideration in that context. With regard to other evidence relevant to liability, such as investigations and reports, these will be taken up in the discussion of liability. From the time Ms Orford found the plaintiff following her fall, the plaintiff has not been able to describe how she fell. The circumstances of her fall are therefore entirely a matter of reconstruction. Issues 8 In an Ordinary Statement of Claim filed on 11 February 2005, the plaintiff sues the defendant for damages, including general damages, out-of-pocket expenses and attendant care/domestic assistance (Griffiths v Kerkemeyer) past and future. Except for one item, past out-of-pocket expenses are not in dispute and the parties are in general agreement concerning the plaintiff's future medical and related expenses. The only damages disputed to any significant extent were those for attendant care and domestic assistance. 9 The claim against the defendant is one in negligence and the particulars of negligence pleaded in the Statement of Claim are as follows: (a) Failed to provide a bathroom with non-slip tiles; (b) Failed to have any or any adequate regard to the fact that persons using the bathroom were elderly and disabled and more likely to slip and fall on slippery wet tiles; (c) Failed to provide a hob on the shower recess; (d) Failed to provide a safe floor that was free of slippery substances; (e) Failed to provide a safe means or system of cleaning the floor and draining the same thereby avoiding leaving water on such floor; (f) Failed to place suitable warning signs warning patients including the Plaintiff of the dangers of slipping on the wet floor; (g) Exposed the Plaintiff to a risk of injury which could have been avoided by reasonable care; (h) Failed to take any or any adequate precautions for the safety of the Plaintiff; (i) Failed to cover the floor with Hessian or some similar material to avoid the Plaintiff and other patients to the toilet from slipping on the floor; and (j) Failed to supervise the Plaintiff adequately or at all. 10 With regard to particular (c) there is no evidence to support the conclusion that any water on the floor came from the shower at the time the plaintiff fell. There was no water seen by any witness either in or near the shower recess. The location of the moisture on the floor seen by Ms Orford and Mrs Miller was in an area some distance from the shower recess. It was also separated from the recess by two drain holes, which it is reasonable to assume would have been effective in diverting water from it. There is also the evidence from the defendant's witnesses that the shower was rarely used, if ever; and there was no evidence that it had been used either on the morning of the plaintiff's injury or on the previous day. Particular (i) is similarly unsupported by any evidence. Expert evidence would have been needed to establish the viability and effectiveness of any such measures. 11 With regard to particular (f) there was evidence, to which I will return in due course, that a warning sign was placed at the entrance to the toilet after the floor had been mopped at the end of each day and removed the following morning before anyone used the toilet. However, there was no evidence to support a conclusion that the plaintiff's injury would have been averted if the sign had been left in place. Particulars (g) and (h) do no more than restate in different terms the general allegation of negligence. 12 There was no relevant expert evidence to the effect that the plaintiff required constant supervision, in particular when attending and using the bathroom. In the absence of such evidence there was no case based on inadequate supervision (particular (j)). A further valid point made by the defendant's counsel was that, had lack of adequate supervision been pursued as part of the plaintiff's case, it should have been put to Ms Orford and Mrs Miller that the plaintiff should not have been allowed to use the bathroom without an escort (Browne v Dunn (1894) 6 R 67). No such questions were put. 13 When the particulars already referred to are put aside as either irrelevant or redundant, those which remain as part of the plaintiff's case, either independently or in combination, are (a), (b), (d) and (e). The failure to install non-slip tiles (particular (a)) is conceded. The defendant did not contest the expert opinion expressed by Dr Cubitt in his report (Exhibit A). However, the failure to install non-slip tiles does not of itself constitute a breach of duty on the part of the defendant. Two further questions must be answered in the affirmative before the plaintiff can succeed: Did the plaintiff's injury result from a slip and fall caused by the wet surface of the bathroom floor? If the floor was wet and therefore dangerous at the time the plaintiff fell, was that condition a result of the defendant's negligence in failing to maintain the floor in a safe condition? The evidence the tiles 14 In preparing his report (Exhibit A), Dr Cubitt tested the coefficient of friction of the tiles on the bathroom floor. The results of the tests were measured against Australian Standard AS/NZS 3661.1.1993 (Slip resistance of pedestrian surface). In Dr Cubitt's opinion, which was not challenged, the bathroom had been refurbished and the tiles, which he tested and were in place in 2002, were installed in the 1990's. 15 Part of Dr Cubitt's conclusion was: "…the Day Centre Owner failed to install ceramic tiles that complied with the requirements of the Australian Standard AS/NZS 3661.1:1993. The coefficient of friction measured for the floor ranged from 0.19 to 0.25 when wet; AS/NZS 3661.1 – 1993 requires a coefficient of friction of at least 0.4. If the floor had a coefficient of friction of at least 0.4 when wet the probability of Miss Ezzy slipping and falling would be very low. My findings are using the Classification defined in the Australian Standard AS/NZS 4663:2004, the floor surface where Miss Ezzy slipped and fell, contribution to the risk of slipping is "very high", when wet". the cause of the fall 16 According to Ms Orford the patch of moisture which she observed in the area where the plaintiff had been sitting after her fall was oval shaped and about 12 x 20 centimetres. She saw no drops or pools of moisture and because she detected no noticeable smell she discounted the possibility that the moisture was urine. Mrs Miller's evidence was less specific than that of Ms Orford. Although she remembered some moisture in the area where the plaintiff had been sitting, she also gave evidence that there were droplets of moisture on other parts of the floor close to where the plaintiff had been found, but not on any other part of the floor and certainly not in the area where the chair had been placed for the plaintiff when she was assisted up from the floor. Mrs Miller was not as impressive an historian as Ms Orford who was more observant and articulate in describing what she had observed. Mrs Miller was hesitant and vague and at times self-deprecating with regard to her ability to answer questions put to her. In those circumstances the evidence of moisture can only be accepted to the extent that Mrs Miller's observations were corroborated by those of Ms Orford. I therefore find that the only moisture on the floor was below the area covered by the plaintiff's buttocks where she was sitting following the fall. 17 In her description of how the accident happened, Ms Orford made the following comment in the CAPS form (Exhibit B): "Debbie slipped as she entered the toilet area. Landing on the floor." This comment was echoed in the report completed the following day on the reverse side of the CAPS form by Mrs Miller where she stated: "Debbie slipped on wet floor in toilets." Plaintiff's counsel sought to attach extra weight to the entries in the CAPS form as supporting a conclusion that the wet floor had been the cause of the fall because they were made close to the time of the fall. Any subsequent explanation came later in time and, it was submitted, was tainted by efforts on the part of the defendant to reconstruct the event in a way that reflected less adversely on it. It was Ms Orford's express observation and implicit in Mrs Miller's evidence that no special weight should be attached to the entries on the CAPS form. They were no more than a first impression and it was Ms Orford's evidence that on reflection she was not able to attribute any particular cause to the fall. 18 As a consequence of what appeared to be a comment initially made by Ms Forrest, an alternative explanation which was to emerge was based on the fact that on previous occasions the plaintiff had been observed shaking her hands dry and in the process splashed water on the bathroom floor. This explanation was adopted by Mrs Miller in a later report dated 15 April 2002. According to Ms Mulcahy, Mrs Miller had told her on 15 February, when she was at Wontama with Mrs Ezzy: "Debbie was washing her hands and got water all over the floor and she'd slipped on the water." Although Mrs Miller could not remember exactly what she said, she denied using the words, "got water all over the floor", because that was contrary to what she had observed. There is also the evidence of Ms Orford who saw no drops of water on the floor. In her opinion the area of moisture which she had observed was not in a position consistent with a person spilling water on the floor while washing her hands. On that evidence there is nothing beyond mere speculation to support such a scenario. 19 Both Ms Orford and Mrs Miller gave evidence of observing perspiration on the plaintiff. According to Ms Orford the plaintiff was "quite clammy". Mrs Miller described the plaintiff as perspiring "quite a bit", which was "not unusual" for the plaintiff. It was this observation that at least in part prompted Mrs Miller to speculate about the drops of moisture which she thought she had seen on the floor before the plaintiff had been assisted into the chair. It was this evidence on which the defendant's counsel also relied to argue that the moisture found on the floor after the plaintiff had stood up was capable of explanations other than its presence on the floor when the plaintiff entered the bathroom. It was submitted that it was equally possible that the moisture was perspiration from the plaintiff and that her fall had been caused by some event unconnected with the condition of the floor, such as a collision with the door or the vanity, or spontaneous loss of balance. It was the defendant's submission that in such circumstances no one possible cause could rise above the level of mere speculation. 20 In support of the submission that the evidence supported a conclusion on the balance of probabilities that the fall had been caused when the plaintiff slipped on moisture on the bathroom tiles, plaintiff's counsel sought to discount alternative explanations, such as the plaintiff's shaking her hands dry and spilling water on the floor, or the plaintiff's perspiration following the fall, as no more than belated attempts on the part of the defendant's witnesses to divert attention from their original assessment. I do not accept that the later suggestions of the cause of the fall were evidence of duplicity on the part of the defendant. Both Ms Orford and Mrs Miller were genuinely puzzled by the event and had continued to search for a satisfactory explanation. All of the suggestions made by them from time to time were no more than speculative assumptions on their part and therefore cannot be distinguished as a means of supporting any particular conclusion. The question of whether any conclusion can be drawn as to the cause of the fall on the balance of probabilities depends upon the evidence of the physical circumstances surrounding the fall and Dr Cubitt's expert opinion, and not on any particular reconstruction by lay witnesses. 21 The suggestion that the moisture was perspiration from the plaintiff can be given no weight. There was no evidence of perspiration on the plaintiff's clothing which might have lent support to a conclusion that she had perspired so profusely that an area of moisture had been formed where she was sitting. Even if the plaintiff's clothing had been found to be wet in the area around her buttocks, this could just as easily have been a result of her clothing soaking up water from the floor as any process in the reverse. In the absence of any evidence to substantiate a level of perspiration sufficient to penetrate the plaintiff's clothing and leave a patch of moisture on the floor, such an explanation remained unsupported by any independent evidence. On the other hand, ordinary experience dictates that water is frequently found on a bathroom floor, an observation reinforced by a number of comments in the expert's report. 22 Ms Mulcahy visited Wontama on 15 February 2002, the day after the plaintiff's fall. When her request to see the CAPS report was refused, she set about inspecting the women's bathroom where the incident had occurred. She noticed water on the floor near the shower recess. As she crossed the bathroom floor towards the toilets the tiled floor felt slippery. Ms Mulcahy surmised that the water had come from the shower recess, the floor of which was a continuation of the bathroom floor without a hob. I have noted earlier that no other evidence supports a conclusion that water on the floor where the plaintiff was found came from the shower recess. This was no more than surmise on Ms Mulcahy's part. However, her evidence that there was water on the floor and that the floor was slippery on the morning following the plaintiff's fall went unchallenged and lends support to the possibility that the floor was in a similar condition on the previous morning at the time the plaintiff entered the bathroom, wherever the water came from. 23 A further argument raised in submissions was directed at the location of the patch of moisture. Ms Orford gave evidence that the position of the patch was outside the direct line between the doorway and the toilet area. This was relied on by counsel for the defendant to support the submission that, even if there had been water on the floor prior to the plaintiff's fall, she would not have stepped on it as she progressed from the doorway to the toilet. However, there is no reason to assume that the plaintiff would have progressed in a direct line from the point where she first entered the bathroom to one of the toilets. The layout of the bathroom and the position of the door would, if anything, support a different conclusion. The entries to the two toilet areas were on the left hand side of the bathroom. Unless the door had been opened back against the wall, a person entering the bathroom could not have taken a direct line to either toilet until they had negotiated the space occupied by the door itself. Such a diversion would more likely than not have led the plaintiff to the edge of the patch of moisture where Ms Orford put it in Exhibit 3. If the plaintiff was found in the location depicted by Mrs Miller in Exhibit 4, the wet patch under where she had been sitting was in a position which would have been even more difficult for the plaintiff to avoid. 24 It was also submitted by defendant's counsel that the plaintiff's injuries were inconsistent with her slipping as she walked. Counsel relied on Dr Cubitt's discussion of the mechanism of slipping and falling on a wet surface. According to Dr Cubitt: "When the foot vaults downward and impacts the surface, it is the frictional restraint of the horizontal force that prevents the foot from slipping. If the horizontal force applied by the heel is greater than restraint offered by friction then the heel is not restrained and continues to move. This results in a person slipping. During a normal stride, the largest horizontal force occurs when the heel strikes the floor – the heels sliding is the most common of all sip mechanisms." Dr Cubitt went on to explain that the longer a person's stride and/or the faster a person is walking the more likely a slip will occur. 25 It was submitted that bruised knees and a shoulder injury of the kind suffered by the plaintiff would not have resulted from falling backwards in the manner described by Dr. Cubitt. However, Dr Cubitt did not exclude the possibility that the plaintiff may have slipped but fallen in some other way than the typical mechanism which he described. It is not clear from his report whether he was supplied with information of the plaintiff's injuries. He certainly made no comment on how such injuries might have resulted from a slip and fall. It is possible that, having felt herself slipping, the plaintiff attempted to steady herself by taking hold of the door or the vanity and, unable to prevent herself from falling, she fell forward against the vanity and then onto the floor. Nothing in Dr Cubitt's report excludes such a possibility. 26 It is more likely than not that the cause of the plaintiff's fall was water on the bathroom floor which would have rendered the floor dangerously slippery. The patch of moisture on the floor where the plaintiff was found after she fell and the high probability of water on bathroom floors, reinforced by Ms Mulcahy's observations on the day following the plaintiff's injury, combine to lead to that conclusion. Contrary to the submissions of defendant's counsel, any alternative explanation put forward is no more than conjecture. breach of duty 27 Some comments in Dr Cubitt's report lend support to the argument that, once the necessary causal connection between a wet floor and the plaintiff's fall has been established on the evidence, the continuing use of non-slip tiles on the bathroom floor constituted a breach of duty: "If a risk of injury assessment was carried out by the Building Owner, then the floor in the toilet/shower room area, would have been recognised as a hazard and action would have been take to reduce the risk of injury due to a person slipping. The ceramic tiles can be treated by either coating or etching the tiles to increase the coefficient of friction such that the floor had a BPN [British Pendulum Number] of at least 40 or replaced with tiles that have a high slip resistance when wet". 28 Even defendant's counsel appeared at one point to make a concession to this effect. According to the defendant's submissions in reply, the "essential" issue was whether the fall was a consequence of a wet floor, which was a question of causation not breach of duty. However, the defendant also submitted that the plaintiff had failed to prove that the defendant's system of cleaning and inspection was inadequate and, if it was, that an adequate system would have averted the plaintiff's injury. If the plaintiff has to prove that the system employed by the defendant was not adequate to keep the bathroom floor as dry as reasonable care required, she must do more than rely on Dr Cubitt's report. On the assumption that proof of a breach of duty requires that extra step, the final question is whether, on the evidence, the plaintiff has succeeded in establishing such a breach. 29 Even if the condition of the tiles per se is not sufficient to establish a breach of duty, Dr Cubitt's comments on the high risk of injury created by tiles of such a low coefficient of friction are still relevant. When these comments are combined with the purpose for which the defendant was using the premises, a very high standard of care arises. It is reasonable to assume that at least some of the defendant's clients who used Wontama as a day care centre were less steady on their feet than an able bodied person. The risk of such persons slipping on the bathroom floor when wet required a level of vigilance on the defendant's part even higher than the high standard arising from the condition of the tiles. 30 Evidence was given in the defendant's case by Mrs Patricia Linton, who was employed at Wontama in February 2002. Her duties included working in the centre's kitchen and cleaning. She worked in the kitchen during the day when clients were at the centre, and began cleaning only after they left at 3.00 each afternoon. The bathrooms were the last part of the premises to be cleaned. When the sinks and toilets had been cleaned, the floors were scrubbed and mopped. After the mopping was completed and all of the cleaning implements had been put away, a sign in the shape of a sandwich board, was placed at the entrance to the bathroom. A sign of the kind used at the time appeared in a photograph in Dr Cubitt's report. It was yellow in colour and contained the word "CAUTION" in red lettering, and below that the words "WET FLOOR" in black lettering. The sign was left in place overnight and removed by a member of staff the following morning before any clients arrived. According to Ms Orford the board was usually removed each morning by the bus driver before he left the premises to collect the clients who lived in Orange. However, the person who removed it could be another member of staff, if he or she was the first to arrive. Neither Ms Orford nor Mrs Miller was able to say who had performed that task on the morning of 14 February 2002 nor whether the task had needed to be performed at all. 31 Both Ms Orford and Mrs Miller gave evidence that the arrangement under which the bathrooms were opened up and the wet floor sign removed at the beginning of each day was an informal one. It was only following the plaintiff's injury that a formal system was introduced under which inspections had to be carried out at regular intervals during the day beginning at 8.30am. Under the system, the member of staff who checked the bathroom was required to complete a check list kept in the room, which recorded whether the floor was wet or dry at the time of the inspection and was signed off by the person who had made the inspection. Ms Orford gave evidence of a meeting following the plaintiff's injury at which staff were informed to undertake regular checks for wet patches on the floor. The introduction of the formal system was evidenced in the follow-up action described by Mrs Miller on the CAPS form in the following entry: "Staff informed to regularly check toilet floors for wet patches". The system was also described in Mrs Miller's memorandum of 15 April 2002, (Exhibit 5): "Toilets are checked on a regular basis each day for cleanliness and if water is on the floor. [sic] Attended to when necessary". 32 It was part of the plaintiff's case that the instructions issued to staff following the plaintiff's injury and the resultant system of regular checks on the bathrooms were an admission on the part of the defendant of its failure to exercise reasonable care on the morning of the plaintiff's injury. Such conduct should not be construed as an admission of liability, but rather a constructive response on the part of the defendant to the incident in which the plaintiff was injured. However, it is evidence of what measures could have been taken. The absence of a formal system of inspection, one consequence of which was the lack of any record of an inspection on the morning the plaintiff was injured, does lend support to the conclusion that, prior to the plaintiff's injury and given the potential danger created by the tiles on the bathroom floor, insufficient attention had been paid by the defendant to ensuring that the bathroom floors were free of any water before the arrival of clients each morning. 33 Counsel for the defendant submitted that evidence of a lax system was not sufficient to expose the defendant to liability unless the plaintiff was able to prove that a more rigorous system would have removed the possibility of the floor's being wet when the plaintiff entered the bathroom on 14 February 2002. It was submitted, for example, that the plaintiff had failed to eliminate the possibility that following an inspection someone had used the bathroom and spilt water on the floor. In such circumstances the defendant may not have been able to intervene and remove the water before the plaintiff used the bathroom. While such a possibility cannot be discounted and while it is true that the plaintiff offered no evidence to counter such a possibility, it is not sufficiently likely in all the circumstances to be instrumental in excusing the defendant from liability. This is not a case of a busy supermarket in which a large number of customers used a section of the supermarket where a plaintiff subsequently slipped and fell after it had been cleaned. It is more likely than not that the plaintiff was the first client to arrive that morning. The bus which brought most of the clients, with the exception of the plaintiff and possibly one other, had not arrived. When account is taken of the very high standard of care applicable in the circumstances, the lack of a more rigorous system of inspection is evidence of negligence and was more likely than not a contributing factor in the plaintiff's fall. 34 With regard to relevant provision of the Civil Liability Act, 2002, the risk was foreseeable, was not insignificant and, in the circumstances, a reasonable person in the defendant's position would have had a more rigorous and effective system of inspection in place at the time of the plaintiff's injury (s 5B). In terms of s 5D of the Act (a) the defendant's negligence was a necessary condition of the occurrence of the harm and (b) it is appropriate for the scope of the defendant's liability to extend to the harm so caused. Damages 35 After the plaintiff and her mother left Wontama on the afternoon of the plaintiff's injury, they visited their general practitioner, Dr Bruce Whitmill. Following his examination of the plaintiff, Dr Whitmill suspected a rotator cuff injury to the right shoulder because of the reduction in movement of her right arm. He arranged for an x-ray which subsequently showed that the plaintiff had in fact suffered a comminuted fracture of the head and neck of the right humerus. The head of the humerus appeared to be dislocated and subluxed from the glenoid. The plaintiff was referred to Dr David Meachin, an orthopaedic surgeon, who saw her in Orange Base Hospital on 15 March 2002. He described the head of the humerus as "completely shattered". Surgery was impossible in the circumstances and Dr Meachin attempted manipulation in order to try to improve the position. The manipulation was not successful and a decision was made to treat the plaintiff conservatively and to have her undertake a course of physiotherapy, which she did. 36 Following Dr Meachin's initial diagnosis and treatment he reviewed the plaintiff in September 2002. In a letter to Dr Whitmill, dated 5 September 2002 (Part of Exhibit C), he reported that the plaintiff's shoulder remained stiff, a condition which he expected to be permanent. He also noted complaints of numbness and a dead feeling in the plaintiff's right hand, which he identified as carpal tunnel syndrome, and recommended surgery by way of decompression. Dr Meachin subsequently performed a right carpal tunnel release at Orange Base Hospital on 17 September 2002. The surgery appears to have been successful in reducing the numbness and prickly sensation in the plaintiff's right hand. However, she continues to have problems with the hand. Although she is right handed, she prefers to undertake a number of tasks with her left hand. 37 There was evidence, which was not disputed, that a person suffering from Downs Syndrome has a high pain threshold. This is consistent with the evidence that from time to time, and notwithstanding the seriousness of the shoulder injury and the ongoing restrictions on the use of her right hand and arm, the plaintiff has not complained of the level of pain which might be expected in such circumstances. However, Dr Whitmill has prescribed Tramal, a painkiller which is designed to reduce whatever pain the plaintiff continues to experience. According to Dr Whitmill's report of 7 February 2005, movement in her right shoulder continues to be severely restricted and she is unable to move her shoulder to any great extent. general damages 38 The plaintiff's high pain threshold, together with her generally uncomplaining nature and her inability to articulate the effect on her of her injuries, have made the task of assessing general damages difficult. However, she does complain at times; and there is ample evidence from Ms Mulcahy, the plaintiff's parents and the report of Ms Pamela Verrender, dated 19 October 2005 a social worker, (part of Exhibit C), that the injury has had a devastating impact on her enjoyment and amenities of life. With the continuing support of her parents and the professional assistance of Ms Mulcahy she had developed a very active lifestyle prior to her injury. She was involved in a number of social activities including bingo, playing cards and attendance at the defendant's day care centre. She was also physically active. She enjoyed line dancing and ten pin bowling; she regularly rode a tricycle, under her father's supervision; and she frequently walked from her house to a neighbouring farm occupied by her older brother to whom she was particularly attached. She also regularly went swimming in an inground pool on her parents' farm and at the local RSL club. Since her injury all of those physical activities have been either totally curtailed or severely restricted. Some of her social activities have been gradually resumed. 39 Although she is unable to articulate her feelings, her behaviour has evidenced an ongoing fear of undertaking any physical activity which might expose her to the risk of a repetition of the fall on 14 February 2002. Absence of complaint is no indication of the level of personal suffering which has resulted from this sense of insecurity, nor of her disappointment at no longer being able to enjoy the range of activities which brought her obvious satisfaction prior to the injury. This is a case where the most significant consequences of the injury are addressed by a substantial award of general damages for non-economic loss. The plaintiff's submission that non-economic loss should be assessed at between thirty and forty percent of a most extreme case under s 16 of the Civil Liability Act 2002 was not challenged by the defendant. I assess that loss at thirty eight per cent of a most extreme case. The plaintiff is accordingly entitled to damages under that head in the amount of $168,000. out-of-pocket expenses 40 The plaintiff claimed an amount of $8,695.00 for past out-of-pocket expenses. This claim is not disputed with the exception of one item, a special chair used by the plaintiff which was purchased at a cost of $1,500. In the plaintiff's evidence, her answers were often no more than an adoption of whatever proportion was put to her. However, she offered a spontaneous response when asked about the special chair and what it did. Her answer was that it rubbed her back. The chair has an automatic massage component and the evidence was that she spends much of her day in the chair. It supplements a special bed which was purchased following her injury. For six weeks after the injury the plaintiff was unable to sleep in a horizontal bed and had to sleep sitting up in a chair. The special bed, purchased at the end of the six weeks, is adjustable to a reclining position which she finds comfortable. It was the defendant's submission that there was insufficient evidence that the chair assisted to alleviate the consequences of her shoulder injury and that it should not be included in the amount awarded for past out-of-pocket expenses. When Mrs Ezzy was asked whether the bed and chair made the plaintiff "a bit more comfortable", her answer was that they seemed to. Although the evidence on the beneficial effects of the chair is sparse, I am prepared to accept that the regular use of the chair by the plaintiff and her own evidence establish that she does find relief from the pain and discomfort in her shoulder when she uses it. There was also in evidence in the plaintiff's case the report dated 8 September 2006 of Ms Jocelyn White, an occupational therapist (part of Exhibit C). She testified that the use of the massaging chair offered relief from pain and reduced the need for the plaintiff to attend a remedial masseur or physiotherapist. On that evidence the plaintiff is entitled to have the sum of $1,500 included in the damages for past out-of-pocket expenses, and they are therefore assessed at the amount claimed of $8,695.00. 41 There is no dispute between the parties with regard to future medical and related expenses, including the possibility of future surgery by way of total shoulder replacement. Such a possibility was contemplated in a report dated 30 September 2005 by Dr Peter Burgess, an orthopaedic surgeon qualified in the plaintiff's case. Making an allowance of fifteen per cent for vicissitudes, the amount to which the plaintiff is entitled under this head of damages is that calculated in the defendant's submissions, namely $17,595.60. attendant care and domestic assistance 42 It was the defendant's submission that the only real issue on quantum of damages was the extent to which the plaintiff's need for attendant services resulted from her injuries. All her life the plaintiff has been heavily dependent on her parents, in particular her mother. She has never been capable of living independently. Even routine tasks associated with self care, such as bathing, could never be undertaken unless her mother was on hand and able to assist in some respects, for example, rinsing shampoo out of her hair. She was able to assist her mother in some household tasks including cleaning crumbs off the table after a meal and making her bed. The effect of her injuries on such needs and capacity to assist must be assessed against that background. In addition to the report in the plaintiff's case of Ms White to which I have already referred, there was also in evidence a report in the defendant's case of Ms Amanda Hoch, an occupational therapist. Her report is dated 10 October 2006 and is part of Exhibit 2. 43 The defendant concedes that there was a substantial increase in the plaintiff's needs immediately following her fall and until the carpal tunnel release in September 2002. Ms Hoch assessed the care and assistance administered to the plaintiff as a result of her injuries for a period of 12 weeks from 14 February 2002 at 45.5 hours per week. According to Ms Hoch's assessment there was a further period of 20 weeks in which the plaintiff required additional care for approximately 14 hours per week. Ms White's assessment was different in a number of respects. According to Ms White the plaintiff required assistance with all personal care tasks for two months, including attention during the night. Her estimate of the care provided was 8 hours a day (i.e. 56 hours per week) for the first two weeks and 4 hours per day (21 to 28 hours per week) for the rest of the two month period. Given Ms White's more generous assessment in most respects compared to that of Ms Hoch it is difficult to understand why she restricted the period of acute care to only two weeks. 44 Mrs Ezzy's evidence was that the plaintiff required 24 hour care until 24 April 2002, that is, a period of 10 weeks. There is no reason to reject her evidence and the period of acute care should be assessed for a ten week period. Eight hours per day for that period is a reasonable basis on which to calculate the amount recoverable. Using $18 per hour as the normal rate, the damages recoverable for that period would be $10,080. With regard to the further 22 weeks up to the carpal tunnel surgery, I accept Ms Hoch's assessment of the level of care at 14 hours per week. At $19 per hour, the damages recoverable for that period would be $5,852. 45 It was assumed that, from September 2002, the plaintiff's condition stabilised and that the required level of attendant and domestic care has continued unchanged to date and will remain so in the future. It was this aspect of the damages on which the parties were furthest apart. Ms White assessed the plaintiff's ongoing need at 1.5 – 2 hours per day, i.e. between 10 and 14 hours per week. Ms Hoch was of the opinion that there was no significant difference between the level of care provided before the injury and that required after the plaintiff's condition stabilised following the carpal tunnel surgery. While Ms White's assessment makes inadequate allowance for improvements following the carpal tunnel surgery, Ms Hoch implicitly rejects, without adequate explanation, Mrs Ezzy's account of a number of areas of self care in which her assistance is still required where it was not before the plaintiff was injured. These include help with dressing each day; showering and bathing; cutting up food; toileting; and operating the TV and DVD. These are all tasks which the plaintiff did before her injury but now finds difficult or impossible because of the loss of use of her right hand. Mrs Ezzy massages the plaintiff's shoulder with oil three times each day to relieve the pain and stiffness. There are also the small number of domestic tasks in which the plaintiff used to assist but are now performed entirely by her mother, such as clearing the table after a meal and making the bed. 46 Counsel for the defendant conceded that Ms Hoch appeared to have underestimated the ongoing need for care which exceeded the plaintiff's needs before her injury, although he submitted that a reassessment based on Mrs Ezzy's evidence did not reach the six hour per week threshold imposed by s 15(3) of the Civil Liability Act 2002. However, in that reassessment, inadequate time was allowed for assistance with toileting and the time taken in massaging the shoulder each day and the further submission that no additional time is now required in assisting the plaintiff with bathing, showering and washing is not supported by the evidence. Prior to her injury the plaintiff did have to be supervised while under the shower in order to ensure that the water was at the correct temperature, but it is more likely than not that the current need for assistance in a number of physical tasks associated with bathing and showering which the plaintiff can no longer do herself calls for more time and attention from Mrs Ezzy than was required before the fall. 47 I assess the ongoing need for attendant care from October 2002 at 7 hours per week. Using $19 per hour as the standard rate, past loss for 5 years is assessed at $34,580. With regard to future loss, I adopt the defendant's submission that, taking account of the age of the plaintiff's parents, they could not be expected to have provided more than another 8 years of attendant care and the future loss should be assessed on that basis. Using a multiplier of 345.6, the future loss is assessed at $45,472. The total amount of damages for attendant care, past and future, is $95,984. In making that assessment I have taken into account what Ms White separately assessed under the description of "leisure activities", to the extent these were not included in the out-of-pocket expenses but can be included as part of attendant care, Orders (b) Verdict and judgment for the plaintiff in the amount of $290,274.60. (b) Defendant to pay the plaintiff's costs as agreed or assessed. ********** 11/09/2008 - Format change to Short Case Title - Paragraph(s) Short Case Title 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.