District Court New South Wales Medium Neutral Citation: Alexandra Annas v Gidaro Constructions Pty Ltd [2012] NSWDC 79 Hearing dates: 10 May 2012, 11 May 2012, 14 May 2012 & 15 May 2012 Decision date: 25 May 2012 Jurisdiction: Civil Before: Judge P Mahony SC Decision: Verdict for the Defendant Catchwords: Slip and fall; photographic evidence Legislation Cited: Civil Liability Act 2002 Evidence Act 1995 Cases Cited: Peacock v R (1911) 13 CLR 619 Luxton v Vines (1952) 85 CLR 352 Naxakis v West General Hospital (1999) 197 CLR 269 Brodie v Singleton Shire Council (2001) 206 CLR 512 at 518 [163] Blacktown City Council v Hocking [2008] NSWCA 144 Daw v ToyWorld (NSW) Pty Ltd ]2001] NSWCA 25 at [70] Brother Justin Guthrie & Anor v Heydan David Spence CA 40105/09 Mason v Demasi [2009] NSWCA 227 at [2] Fallas v Mourlas (2006) 65 NSWLR 418 at [100] Category: Principal judgment Parties: Alexandra Annas - Plaintiff Gidaro Constructions Pty Ltd - Defendant Representation: Mr R Gambi for the Plaintiff Mr J Sharpe for the Defendant Mr G Koutzoumis, Gary Koutzoumis Lawyers - Plaintiff Mr C Rogers, Remington & Co Solicitors - Defendant File Number(s): 11/214417 Publication restriction: No Judgment The Plaintiff's Claim 1The plaintiff claims damages for personal injuries suffered by her on 22 January 2010 when she fell outside premises situated at 19 Oswald Street, Rockdale, New South Wales. At approximately 6.30am, the plaintiff was walking along the footpath on Oswald Street towards the premises at number 19, which were at the time, a building site. Across the driveway to that site was a timber footpath protection pad designed to protect the footpath from damage from heavy vehicles gaining access to and egress from the building site. 2The plaintiff's Statement of Claim pleaded that as she attempted to traverse the timber planks, "her foot caught the raised edge of the timber plank causing her to stumble forward, lose her balance, and fall to the ground onto her outstretched hands". 3The particulars of negligence are listed in paragraph 9 of the Statement of Claim. Of those particulars, paragraph 9 (e) was not pressed at trial. The particulars relied on amount to installing, and allowing to remain in situ, timber planks where the ends were not level with the concrete footpath thereby creating a trip hazard, failing to inspect the planks to ensure the ends remain level with the concrete path and failing to warn pedestrians by means of a sign or by painting the ends of the timber planks so as to highlight the trip hazard. 4The plaintiff claims that she suffered an injury to her little finger on the right hand, being a fracture to the base of the proximal phalanx, that she aggravated preexisting degenerative changes in her right hand and thumb, that she sustained an injury to her right wrist and an injury to her neck which included aggravation of pre-existing degenerative changes. In addition, the plaintiff suffered an injury to both knees which had resolved. The Evidence Relating to Liability 5Evidence was given in the proceedings by the plaintiff, her daughter, Zoe Annas, her son Stan Annas, Dr Con Costa and Mr Manilo Rios. In respect of liability, the plaintiff relied on her own evidence, together with certain photographic and documentary evidence. 6The plaintiff gave evidence that at 6.30am on 22 January 2010 she was walking along Oswald Street with her husband and dog. They were walking along the footpath heading towards number 19 Oswald Street where there was building work which had been progressing for some six months. During that time the plaintiff and her husband had walked along the footpath many times as they walked their dog every day. Since June 2009 there had been constructed across the footpath on the driveway leading to 19 Oswald Street what is known as a footpath protection pad. It was constructed of wooden planks that were laid together along the footpath, and were tied together with wire straps. At each end the planks were chamfered so that the end portion of each plank sloped towards the footpath, thereby forming a ramp at each edge of the pad. 7The provision of a footpath protection pad was a condition of a development approval by Rockdale City Council dated 29 June 2005 (Exhibit D). Condition number 66 of the development consent provided: "66. Builders and demolishers are required to confine access to building and demolition sites to no more than two 3m driveways, and provide a footpath protection pad over Council's footpath at these point (see attached detail) ..." 8The same condition was repeated in condition number 70. The attached detail was entitled "Construction Details for Footpath Protection Pads". It shows diagrammatically that hardwood timbers measuring 150 x 50 mm were to be close boarded, and held together with hoop iron straps. The ends of each timber plank was to be splayed to a distance of 150 mm. The document noted that the pad was to extend the full width of the fence opening, i.e. for access to the site, and further that the pad was to cover the entire width of the constructed footpath. 9In her evidence in chief, the plaintiff stated that she was walking towards the building site at 19 Oswald Street when their dog ran away. Her husband ran and was in front of her. When asked what happened, the plaintiff's evidence was as follows: "I fell and I don't know what happened. "As I was walking I fell over without knowing how. I put my hand forward to stop my face hitting the ground." "It was my right hand. Q: What was on the ground? A: Timbers I don't know what you would call them. Q: Where were they? A: In front of the building. Q: Had you walked on the timber before? A: Many times. Q: Did you notice anything about the timber? A: I could see the timber moving [indicating with her hands to indicate up and downwards movement]. Q: Did you look at the timber? A: Some were straight timbers and others were broken." 10In final submissions counsel for the plaintiff agreed that that version of the plaintiff's evidence, without the benefit of the transcript, was accurate. 11Exhibit A was a photocopy of two photographs showing numbers 17 and 19 Oswald Street, Rockdale. The photocopy document is identified under the heading "Meinhardt" and contains a reference at the bottom which suggests that it is taken from a report of some kind to the defendant. The second photograph shown on the document, identified as "Photo 4 - Street Frontage 19 and 17 Oswald Street, Rockdale" shows the footpath protection pad in question outside number 19 Oswald Street. It is not known when the photograph was taken, but inferentially, it was sometime prior to the plaintiff's fall. 12The plaintiff also relied on Exhibit B, a series of nine photographs taken by the plaintiff's husband after the protection pad had been removed from the footpath. 13In cross-examination the plaintiff conceded that every morning for the previous six months she and her husband had walked along Oswald Street and over the timber planks. The day of the accident was a very hot day and it was bright and sunny at 6.30am. The plaintiff's evidence as set out above in relation to her fall was not the subject of cross-examination. The plaintiff identified the building site in another photograph (Exhibit 1) which showed the street access to the building site after the footpath protection pad was removed. 14The plaintiff gave evidence that on the day she was injured she returned with her husband to the building site. There she observed her husband speak to a gentleman. She gave further evidence that on the day after she had been treated at St George Hospital, that is, on 25 January 2010, she and her husband again returned to the building site and she observed her husband to be talking to the same person. The plaintiff spoke the Greek language and had little English, but she gave evidence that she heard the man say "Sorry, sorry". She could not understand any of the conversation that took place but she and her husband returned home, following which, he returned to the building site alone for the purpose of taking photos which became Exhibit B. Those photos demonstrate that the timbers comprising the footpath protection pad had been removed at the time they were taken. In cross-examination, the plaintiff gave evidence that it was the day of the accident upon which she and her husband returned to the building site and it was on that occasion that the gentleman her husband was talking to said "I am sorry, I am sorry, I am sorry". 15It was put to the plaintiff in cross-examination that her husband spoke to Mr Rios, site supervisor, at 5.30pm on 22 January 2010, and that in her husband's presence, Mr Rios removed the planks. When asked whether she returned on Monday 25 January 2010, the plaintiff said: "I only went the day I had the accident. I never went back again." 16Counsel for the defendant conceded that the defendant had put the planks across the driveway and had removed them. The defendant called Mr Manilo Rios in its case. He was a licensed builder and the site supervisor sub-contracted to the defendant on site at 19 Oswald Street, Rockdale. He gave evidence that the footpath protection pad had been constructed to comply with the development consent, and was installed in June 2009 and remained in situ until 22 January 2010. 17Mr Rios gave evidence that he had commenced work on 22 January 2010 at between 6.30 and 6.45am. At 5.30pm that day, when he was in a shed on the property preparing his tools, a man who he identified was the plaintiff's husband called out that he wanted to see him. Mr Rios gave evidence that he spoke to the plaintiff's husband and that the plaintiff remained in their car. The plaintiff's husband told Mr Rios that his wife had fallen and he said "I'm sorry to hear that". The plaintiff's husband then told him that she had been to the doctor. He took their details and they left. Mr Rios gave evidence that the husband returned and in Mr Annas' presence, Mr Rios removed the timbers. He saw the plaintiff's husband the following Monday on 27 January 2010 when Mr Annas told him that he and his wife were walking with their dog on 22 January and that Mr Annas had spoken to a truck driver, on the site following his wife's fall. 18In cross-examination, Mr Rios, after having his memory refreshed from his diary entries, conceded that on 22 January 2010 he had spoken to Mr Annas and that at that time the plaintiff was out of the car and her hand was in a sling. He agreed that it was fair to describe Mr Annas as being upset. It was put to him that following that conversation he believed that there would be trouble "over the incident" which he denied. 19Mr Rios gave evidence that the protection pad was in good and proper condition in accordance with the council's consent throughout the six month period from June 2009 to January 2010. It was constructed from some new and some used timber and he conceded that over time the timbers tended to warp a fair bit. 20It was put to Mr Rios in cross-examination that he thought there would be trouble and that was the reason he set about removing the protection pad. In response he said there was nothing wrong with the pad, and he took the timbers off the footpath and put them on site. On 27 January he contacted AusBroker, the builder's insurance broker. 21Mr Rios was shown exhibit A and was asked to concede that the photograph showed parts of the timber protection pad broken off or deteriorated. He was not prepared to do so on the basis of the black and white photocopy. 22Mr Rios was asked about an email he sent to Rockdale Council which became Exhibit 2 in the proceedings. That document confirms that Mr Rios removed the footpath protection on 22 January 2010 following his conversation with Mr Annas. When asked why the protection pad had not been replaced, Mr Rios said that there were no trucks driving across the footpath to warrant it being replaced. It was put to Mr Rios that if the chamfered edges of the protection pad were not on the ground it constituted a risk to users of the footpath of tripping. Mr Rios did not concede that there was a trip hazard involved in respect of this pad. He could not recollect the last time he inspected the pad prior to 22 January 2010. Defendant's Submissions on Liability 23The defendant submitted that the footpath protection pad was obvious to users of the footpath. The plaintiff had used it for the six months it had been in place without incident and it could be inferred that the plaintiff's husband traversed it safely on the day in question. Further, on the plaintiff's evidence, there was no evidence of where the plaintiff tripped before she fell, or what caused her to trip. It was submitted that the plaintiff was not looking out for her own safety and in the absence of any explanation from the plaintiff at all as to how she came to fall, there could be no finding that the defendant breached its duty of care towards her, or that any breach of its duty of care caused the plaintiff to fall. 24Those submissions were made on behalf of the defendant against the background of the general principles contained in ss 5B, 5C and 5D of the Civil Liability Act 2002 ("the Act"). The defendant pleaded in its Defence that the circumstances alleged in the plaintiff's statement of claim constituted an obvious risk and the materialisation of an inherent risk for the purposes of Division 4 Part 1A of the Act. The defendant pleaded that by virtue of s 5G of the Act, the plaintiff was presumed to have been aware of the risk of harm arising from an obvious risk and further pleaded that by virtue of s 5H of the Act the defendant owed no duty of care to warn of an obvious risk to the plaintiff associated with traversing the footpath. The defendant further pleaded that by virtue of s 5I of the Act the defendant was not liable for any harm suffered by the plaintiff as a result of the materialisation of any inherent risk in the circumstances. Finally, the defendant pleaded contributory negligence on the part of the plaintiff by failing to keep a proper lookout and failing to take reasonable care for her own safety. The Plaintiff's Submissions on Liability 25The plaintiff submitted that the positioning of the footpath protection pad was an obvious risk to users of the footpath and made it hazardous. Applying s 5B of the Act, the plaintiff submitted that the risk of harm (that is, of a person using the footpath tripping on the protection pad, falling and injuring themselves) was foreseeable (s 5B (1) (a)), was not insignificant (s 5B (1) (b)), and in the circumstances a reasonable person in the defendant's position would have taken precautions against the risk of harm to the plaintiff. 26Those precautions were, first, the defendant should have regularly inspected the protection pad for damage or deformity; secondly, deteriorated timbers should have been replaced; and thirdly, the chamfered ends of the pad should have been painted or made obvious. 27Counsel for the plaintiff conceded that I was entitled to make a finding that the plaintiff was distracted by the dog running off and her husband chasing the dog. However, it was submitted that this was momentary inadvertence by the plaintiff and did not mean that she was not keeping a reasonable lookout and thereby taking reasonable care for her own safety. 28Further, it was put that there was sufficient evidence from which breach of the defendant's duty of care could be inferred and that s 5D of the Act was satisfied in that the defendant's negligence was a necessary condition of the occurrence of the injury suffered by the plaintiff and that it was appropriate in terms of the scope of the defendant's liability. On the basis that there was momentary inadvertence by the plaintiff, it was submitted that there could be no contributory negligence by her. 29The evidence the plaintiff relies on to establish breach of the defendant's duty of care is as follows. First, the evidence recorded in paragraph 9 above, that she fell onto timbers, meaning the footpath protection pad. Further, that those timbers moved up and down and that some of them were broken. 30Secondly, the plaintiff relies on Exhibit A and in particular photo numbered 4 in the exhibit. It was submitted that notwithstanding the edge of the footpath protection pad that the plaintiff was walking towards is not visible in that photograph, by viewing the condition of the opposite end of the ramp (that is the end furthest away from 17 Oswald Street), the Court could infer that what confronted the plaintiff was a ramp where the timbers were unevenly placed, with an inconsistent edge and that some were lifted from the ground surface, whether that being the footpath or otherwise. On that basis, the footpath protection pad, whilst an obvious risk, constituted a hazard to users of this footpath. 31Thirdly, the photos in Exhibit B, and in particular those numbered 2, 4, 5 and 6, showed discolouration on the footpath following removal of the footpath protection pad. That discolouration comprised two elements. The first was parallel markings depicting the joins between the wooden timbers where the ground surface below the timbers was marked. The second type of discolouration was said to appear under the edge of what would have been the fifth and ninth placed timbers, measured from the entrance to number 19 Oswald Street. It was submitted that in respect of the area closest to the edge of the ramp under those two timbers, there was discolouration of the footpath by way of a blackening, suggestive that the timbers had lifted at the edge allowing debris to enter under the footpath protection pad and in such a way as to discolour the concrete underneath. This, it was submitted, gave rise to an inference that the edging of the ramp facing the plaintiff, at least in respect of the fifth and ninth panels, was raised, thereby constituting a trip hazard. 32Fourthly, the plaintiff relied upon the evidence that Mr Rios had removed the timbers and, it was suggested, destroyed the evidence of the footpath protection pad. This was done, it was submitted, as a deliberate attempt by the defendant to remove the evidence. An inference, it was submitted, was thereby available that the defendant was culpable. The plaintiff relied upon the High Court's decision in Peacock v R (1911) 13 CLR 619 in support of that proposition. That of course was a criminal case where a new trial of the Appellant was ordered in respect of his conviction for murder. One of the Appeal grounds concerned the suppression of evidence by the accused, namely, disposal of the deceased's body. The plaintiff also relied on Luxton v Vines (1952) 85 CLR 352 and Naxakis v West General Hospital (1999) 197 CLR 269. 33Finally, it was submitted that, as the medical evidence in the case had been admitted into evidence by consent, and no restriction placed on it pursuant to s 136 of the Evidence Act 1995, by virtue of s 60 of the Evidence Act, histories taken by the doctors recorded in those reports was evidence of the facts so recorded. The plaintiff, in particular, relied upon the following histories: Report of Dr Murray Stapleton dated 9 November 2011: "She fell while walking with her late husband and family dog along a footpath on 22 January 2010. On the day in question she tripped on apparently timber that had been spread across the pavement nearby a house that was being renovated presumably by Gidaro Constructions Pty Limited. Ms Annas fell on her outstretched right hand." Report of Dr Martin dated 16 November 2011: "She told me that in January 2010 ... that whilst walking on a footpath that she tripped on planks left by builders. She told me there were no warning signs. She told me that she fell to the ground and broke her finger." 34Both of those reports were tendered by the defendant in the proceedings. 35The histories contained in the Plaintiff's own medical evidence (Exhibit C) are as follows: Dr Mohiuddin - Clinical Notes 22 January 2010: "Fell over and sustained trauma to right hand (sic) (Exhibit C pg 51)." Report of Dr Bodel dated 3 June 2010: "This lady suffered a trip and fall injury while on her morning walk on 22 January 2010. She lives at 7 Oswald Street in Rockdale and she was walking on a footpath outside number 19 in that street. He husband indicates that at the time, there was some excavation work being done on the footpath outside that house and there was a wooden board across the excavation. Ms Annas apparently tripped on the board and then fell forward and her right hand came down into a split or a hole in the board and she suffered a hyperextension injury to the hand, particularly to the little finger." Report of Dr Costa dated 11 May 2010 (Exhibit C at pg 67): "History was that she tripped and fell on the footpath and she said that she put her right hand out to break her fall." 36The only history taken at the St George Hospital where the plaintiff was treated three days after her injury was as follows: "Fall over and sustained trauma to right hand three days ago." 37The records of the Sydney Hospital Hand Clinic, where the plaintiff received treatment including an operation on her finger on 1 February 2010, include no history of the injury other than she was seen "post fall" (Exhibit C pg 15). 38Relying on the above evidence, the plaintiff submitted that s 60 of the Evidence Act 1995 had the effect that the above histories were admitted for all purposes, and were evidence of the facts that they recorded. 39Having regard to all of those matters, the plaintiff submitted that reasonable inferences were available to establish that, notwithstanding that the plaintiff gave no evidence as to what in fact caused her to fall, she tripped on the edge of the footpath protection pad, that the edge of that pad was raised off the ground so as to create a trip hazard, so that the plaintiff's fall was caused by the defendant's breach of its duty of care. 40The plaintiff also relied on the evidence that Mr Rios had apologised to the plaintiff and her husband on 22 January 2010, as an admission of behalf of the defendant as to its culpability. Liability 41The duty of care owed by the defendant to users of the footpath required for the footpath to be safe for pedestrians using it, exercising reasonable care for their own safety - see Brodie v Singleton Shire Council (2001) 206 CLR 512 at 518 [163]. The plaintiff has the onus of establishing, on the balance of probabilities, that the defendant breached its duty of care to her and that that breach caused the plaintiff's injuries. As to breach, s 5B of the Act applies. Causation is governed by s 5D of the Act. 42The risk of harm here was a risk of injury caused by tripping on the footpath protection pad. It was certainly a risk that was foreseeable and not insignificant, in accordance with s 5B (1) (a) and (b). The question here is whether a reasonable person in the defendant's position would have taken precautions against that risk of harm. Those precautions identified by counsel for the plaintiff were those set out in paragraph 26 above. 43The evidence does not establish that any response was required by the defendant. The plaintiff clearly did not know, according to the evidence set out in paragraph 9 above, what caused her to fall. That she fell onto the timber footpath protection pad does not give rise to an inference that she somehow tripped on the leading edge of the ramp to it. That some of the timbers moved when she was on them does not give rise to any inference that the leading edge caused her to fall. 44The plaintiff substantially relied on the photos which are Exhibit A and Exhibit B in the proceedings. As set out in paragraph 30 above, it was submitted that the general condition of the footpath protection pad, as shown in the black and white photograph numbered 4 in Exhibit A, gave rise to an inference that the leading edge constituted a hazardous surface. Further, that the discolouration shown in the photos referred to in paragraph 31 above, of the concrete surface, gave rise to inferences in respect of the condition of the footpath protection pad. 45I am not prepared to draw the inferences which the plaintiff seeks in respect of the various photos. In the absence of any expert evidence as to what is shown in the photographs or how they should be interpreted, I am unable to make findings of fact which are otherwise unsupported by the evidence. To do so would be no more than conjectural or speculative - see Blacktown City Council v Hocking [2008] NSWCA 144 per Spigelman at [8] & [9], and per Tobias JA at [167-169]. 46I am not persuaded that Mr Rios, by dismantling the footpath protection pad, was in the circumstances destroying the evidence in a way which gave rise to an inference that the defendant would be in some way culpable. Rather, he was responding to the plaintiff's husband who was upset that his wife had been injured. Mr Rios reacted by telling Mr Annas that he would remove the timbers straight away. He gave evidence that the timbers were stored on site and not removed. 47His evidence was that the pad was in good and proper condition in accordance with counsel's consent conditions for the period from June 2009 to January 2010. Although some new and some used timber had been used in its construction, Mr Rios gave evidence that whilst the timbers tended to warp a fair bit over time, there was nothing wrong with this pad. He denied, when it was put to him in cross-examination, that he thought he would be in trouble having spoken to Mr Annas and set about removing the pad to avoid that trouble. He was certainly not prepared to concede that the photograph numbered 4 in Exhibit A demonstrated deterioration in the timber planks. Whilst Mr Rios could not recall the last time he had inspected the pad prior to 22 January 2010, he at no time conceded that the pad constituted a trip hazard. 48I accept the evidence of Mr Rios as set out above and am not prepared to draw an inference from the fact of his removal of the protection pad from the footpath that it in some way constituted a trip hazard as advocated by the plaintiff, or otherwise supports a finding that the defendant was negligent. To do so would amount to conjecture. 49I also accept Mr Rios' evidence that when told by Mr Annas that his wife had hurt herself, he responded "I'm sorry to hear that". That evidence could not constitute an admission on the part of the defendant and to the extent that it could be regarded as an apology, s 69 of the Act proscribes that it does not constitute an express or implied admission of fault or liability by the defendant. 50It was submitted on behalf of the plaintiff that the histories contained in the various medical reports tendered on behalf of the plaintiff in exhibit C supported the plaintiff's case by virtue of s 60 of the Evidence Act 1995. Those entries are contained in paragraphs 35-37 above and they fall well short of supporting the plaintiff's case in negligence. The two histories most heavily relied on by the plaintiff however, are those contained in reports tendered on behalf of the defendant, which became Exhibit 6, namely, the histories taken by Drs Stapleton and Martin set out in paragraph 33 above. The effect of s 60 is beyond dispute - see Daw v ToyWorld (NSW) Pty Ltd [2001] NSWCA 25 at [70] per Hayden JA, as he then was, and Brother Justin Guthrie & Anor v Heydan David Spence CA 40105/09 per Campbell JA at [75]. However, the descriptions set out do not bespeak any breach by the defendant of its duty of care. It should be remembered that the plaintiff has little English and was relying on interpreters to speak to her various treating doctors, and those doctors examining her for medico-legal purposes. For the reasons set out in the judgment of Basten JA in Mason v Demasi [2009] NSWCA 227 at [2], great caution should be exercised in placing any weight upon the accuracy of such statements. In any event, neither bespeak negligence. In the first, it is recorded that "she tripped on apparently timber that had been spread across the pavement ...", and in the second, it was recorded "that whilst walking on a footpath that she tripped on planks left by builders". 51Neither version is supported by the evidence. 52For the above reasons, I am not satisfied that the plaintiff's fall was caused by any irregularity or defect in the footpath protection pad. The plaintiff has not proved on the balance of probabilities any breach of the defendant's duty of care. Further, I find that whilst the plaintiff was distracted by their dog running away and her husband giving chase to it, she was not taking reasonable care for her own safety as she walked along the footpath. 53In the circumstances, I am unable to find, pursuant to s 5 B (1) (c) that a reasonable person in the defendant's position would have taken any precautions against the risk of harm constituted by the provision of the footpath protection pad. The evidence does not establish that a reasonable person in the defendant's position would have taken the precautions set out in paragraph 26 above. I therefore do not consider it necessary to consider the matters set out in s 5B (2) (a) - (d), but if I had to do so, I would have found a very low probability that harm would occur if the precautions advocated for were not taken. This was a footpath protection pad put in place as a result of conditions imposed by the local road authority to protect the footpath surface. It was designed for safe travel by users of the footpath by having the ends chamfered so as to provide a ramp. It had been used for a period of in excess of six months by all users of the footpath, including the plaintiff and her husband, it would seem without incident. In those circumstances, there could be no finding that the defendant breached duty of care towards the plaintiff. 54I further find that the risk of harm here was an obvious risk within the meaning of s 5F of the Act, i.e. that it was a risk that would be recognised by a reasonable person in the position of the plaintiff "exercising ordinary perception, intelligence and judgment" - see Fallas v Mourlas (2006) 65 NSWLR 418 per Tobias JA at [100]. The defendant was under no duty to warn of it pursuant to s 5H of the Act. 55There will be a verdict for the defendant in the proceedings. Damages 56Notwithstanding that there will be a verdict for the defendant, in the event that I am wrong in that finding, I will proceed to assess damages based on the medical evidence before me. The first relevant matter to take into account is the plaintiff's medical history. Plaintiff's Medical History 57The medical evidence established that the plaintiff had been treated for a number of medical problems over the 20 years prior to her fall. In November 1990 she had investigations carried out in respect of her neck and right forearm. In February 1994 she fractured her right wrist in a fall, her arm was placed in a plaster for six weeks, but her treating orthopaedic surgeon reported that within six months she had full range of movement of her wrist and her shoulder. There were further investigations carried out on her neck and left shoulder in 1995, and complaints of neck pain in October 2005 and January 2006. 58The evidence also demonstrated investigations carried out in respect of her lumbar spine from 1995 over a period of years to 1999. She also had investigations carried out on her thoracic spine in 1998 and again in June 2008. She had further treatment for low back pain in 2001 and 2004. In 2005 she had treatment in respect of her neck and back, and also in respect of her neck and right shoulder. 59In 2007 she had a CT scan on her lumbar spine. 60In March 2007 the plaintiff had also had x-rays on both ankles after complaining pain and swelling in both ankles (Exhibit 6, p 106). In addition, she had suffered a number of unrelated medical conditions including thyroidism, and undergone a number of unrelated surgical procedures. In 2007 she was diagnosed as suffering from depression due to an unexplained bereavement. The Plaintiff's Treatment Following Her Injury 61Following her injury on 22 January 2010, the plaintiff attended her local medical officer, Dr Mehiuddin, and had an x-ray. She returned to the surgery three days later on 25 January 2010 and was referred to St George Hospital, where, on examination, she had bruising and swelling to the right little finger and ulnar border of the palm of her right hand. X-ray showed a transverse fracture through the bone of the proximal phalanx of the right little finger with minimal ulnar displacement. A splint was applied. 62On 27 January 2010 she was referred to the Hand Unit at Sydney Hospital where, on examination, there was swelling evident in her right hand and she was unable to make a fist. She was recommended surgery which was delayed, but took place on 1 February 2010. She underwent a closed reduction of the fracture with insertion with what is known as a "k wire" to the right fifth metacarpal. She was discharged from Sydney Hospital with her arm elevated in a sling and remained under the care of Professor Gumley at the clinic. The k wire was removed after four weeks and she was reviewed regularly at the hand clinic until her eventual discharge on 15 June 2010. 63The hospital notes record that following the removal of the k wire her right wrist and little finger remained stiff but over time were much improved. On 4 May 2010 her examination revealed pain in the right arm from her fingers to her shoulder, but her function had improved. On 15 June 2010 she was noted to still have a very stiff wrist joint but her pain was slowly improving. 64The plaintiff claimed that within a short time of the accident she had pain in her right arm, right shoulder and neck. On 11 May 2010 she was referred by her GP, Dr James Giallussi, for an x-ray of her cervical spine and right shoulder. The cervical spine x-ray was reported as follows: "The alignment is normal. All seven cervical vertebrae is well visualised (sic). There is no obvious fracture. It appears however that there is 2mm anterior slip of C7 on T1. Further assessment with a CT scan is advised. Advanced spondylotic change is noted in the entire cervical spine with severe disk degeneration and osteophytes. There is also associated bilateral foraminal stenosis mostly in the lower cervical spine caused by posterior osteophytes." 65The relevance of this study was that it was submitted on behalf of the plaintiff that the 2mm slip had not been recorded on any previous cervical spine x-ray, and it was an objective radiological finding made within a short time of the plaintiff's injury for which there was no other explanation. The plaintiff therefore claimed that on the balance of probabilities it was an injury suffered by her at the time of her fall on 22 January 2010. 66The plaintiff underwent an x-ray of her thoracic spine and her right hand and wrist on 23 September 2010 and a right shoulder ultrasound on 24 September 2010. She continued to suffer right shoulder pain and on 21 January 2011 commenced a course of physiotherapy at St George Hospital which finished on 15 February 2011. The report from Mr Tang, physiotherapist (Exhibit 6, p 170), recorded that she had reported significant improvement in her right shoulder pain during the course of the treatment and that functionally, at its conclusion, she was now able to perform "almost all her housework without much problem". 67On 4 November 2010 the plaintiff's husband passed away. She thereafter suffered a major depression in her bereavement. She was emotionally very labile whenever her husband was mentioned in her evidence and continues to suffer a severe depression as a result of her bereavement. 68With respect to the plaintiff's credit, it was not put by the defendant that she was at any time in her evidence deliberately lying or misleading the Court. Rather, it was submitted that her presentation in the witness box was such that I would not accept the plaintiff as a witness of truth, given numerous examples of forgetfulness, particularly with respect to her prior medical history and the previous treatment that she had suffered to her back, neck and right arm, together with the depression and anxiety she had suffered in 2007. 69I do not make any adverse finding as to the plaintiff's credit. Rather, I have made a considerable allowance for her ongoing depression arising out of the bereavement for her husband and what appears to have been a cascading of medical problems since that time. 70It was submitted by the defendant that the plaintiff suffered a minor fracture to her right little finger which caused her some discomfort until approximately May or June 2010. During that time she had a procedure carried out to stabilise the fracture with a k wire, and had suffered a postsurgical infection. She had not had a lot of physiotherapy treatment for her right finger and hand, and the physiotherapy that she underwent in February 2011 at St George Hospital was unrelated to her injury, being treatment provided to her right shoulder. Further, the defendant submitted that what was significant in the plaintiff's medical evidence was the absence of any report from Dr Giallussi, her treating GP, and the absence of any expert evidence from an orthopaedic surgeon specialising in hand injuries. 71The defendant tendered a letter from Dr Giallussi dated 11 April 2010 (Exhibit 3) in which he stated that he had not been involved in the treatment of the plaintiff following the accident on 22 January 2010. That clearly had changed by the time he referred her for an x-ray which was taken of her cervical spine on 11 May 2010. 72The defendant further submitted that the reports of Dr Costa relied on by the plaintiff and the opinions therein should be heavily discounted on the basis that Dr Costa went beyond his medical expertise and had become an advocate for the plaintiff's case. Dr Costa was the only doctor crossexamined in the proceedings. Dr Costa had provided four reports dated 11 May 2010, 23 September 2010 (two reports) and 27 January 2012. In his first report he recorded that she suffered injuries to her right hand and wrist and also hurt her neck, shoulder and back. His examination took place on the same day as the cervical x-ray was taken, Notwithstanding that, Dr Costa recorded that she had chronic soreness of the right shoulder and neck but had no investigations of either to date. She also had lower back pain but also no investigations had been carried out. 73In respect of the plaintiff's past health, Dr Costa took a history that she had a thyroid problem but recorded "there is no history of any other ills". He noted that she had undergone pelvic surgery three years earlier, that her symptoms had improved until her recent fall and "it has all come back". 74Notwithstanding his lack of psychiatric qualifications, Dr Costa diagnosed an Adjustment Disorder with mixed anxiety and depressive mood due to chronic pain and ongoing disability. In his opinion her anxiety condition may also have contributed to aggravation of her thyroid condition. When Dr Costa examined her on 22 September 2010, she complained of chronic right hand and wrist pain and intermittent swelling of the hand, as well as numbness and weakness of grip strength. At that time he stated that: "The problem is that it is her dominant right upper limb which is affected. There are also features of RSD sympathetic reaction following her injuries and the insertion of k wire and prolonged splinting/immobilisation, as well as signs and symptoms referrable to a right-sided carpal tunnel syndrome." 75This commentary was unexplained and at no time was the plaintiff diagnosed by a suitably qualified medical practitioner with either reflex sympathetic dystrophy or carpal tunnel syndrome. I find that she did not suffer either condition as a result of the fall on 22 January 2010. 76Dr Costa, in his addendum report dated 23 September 2010, set out a raft of treatment costs for medical review, surgical costs, long term medications, pain management, and further investigations. The surgery costs included costing for neck surgery, hand surgery and carpal tunnel release where there was no appropriate qualified medical opinion recommending the same. Further, he recommended no less than 11 long term medications for her injuries which he stated were "a direct result of the MVA injuries". In crossexamination it became clear that Dr Costa was recommending only a selection of 11 listed medications to be taken at any one time, to be supervised by her treating doctor. I find that Dr Costa, having failed to take any reasonable medical history of the plaintiff's previous treatments and medication regimes, relied only on what he was told by the plaintiff and did not apply an objective mind to either her diagnosis, treatment or future needs. He became an advocate in the plaintiff's case and I discount the contents of his reports accordingly. 77The defendant relied on a report of Dr Stapleton dated 9 November 2011. Dr Stapleton is an orthopaedic surgeon specialising in hand injuries. He diagnosed a fracture at the base of the plaintiff's right little finger which was her dominant hand. The ongoing problem for her in his opinion was gripping of brooms, mops and floor polishers, which would be a permanent problem. Notwithstanding that, he was of the opinion that she did not require any domestic assistance. 78The defendant also relied on Dr Martin, a psychiatrist, who provided the following opinion: "It would be unusual if ongoing pain as she describes was not playing some part in ongoing psychological distress, but my clear impression was that the major factor in her depressive symptoms was in the context of bereavement, and I did not gain information sufficient to come to the conclusion that her physical injury caused mental illness at the time of the injury, or now." 79That passage was adopted by counsel for the plaintiff in his final submissions as representing the plaintiff's case as far as her psychological reaction to her injury was concerned. Assessment of Damages 80The plaintiff submitted the following schedule of damages: Non-Economic Loss - 28% of a most extreme case $73,000 Past Treatment Expenses $2,991 Future Treatment Expenses $20,703 Past Domestic Assistance and Care $20,676 Future Domestic Assistance and Care $103,586 ________ Total $220,956 81The defendant's submission was that the plaintiff would be assessed at 5% of a most extreme case and therefore not entitled to damages for noneconomic loss pursuant to s 16 of the Act. In respect of care, it was submitted on behalf of the defendant that although her children had done the right thing, the plaintiff had not passed the threshold in s 15 (3) of the Act and there should be no award for the past or future for her care. The defendant tendered an application for a disability support pension submitted on behalf of the plaintiff and supported by Dr Giallussi on 16 November 2010 (Exhibit 4). That application was based on depression and anxiety suffered by the plaintiff, which had been diagnosed on 3 December 2007, before her hand injury. The application also listed a number of conditions which contributed to her need for the pension including lumbar spondylosis, valgus feet (for which she required surgery and was on a waiting list) and breast cysts. 82Exhibit 5 was a Housing Pathways Medical Assessment submitted on behalf of the plaintiff on 16 November 2010 to the New South Wales Housing Service, again supported by Dr Giallussi. The conditions relied on in support of that application were lumbar spondylosis, stress incontinence and depression/anxiety. It contained a history that the plaintiff's husband had died one week ago and that emotionally she wanted to change her environment. It was proposed that her daughter would live with her to act as her carer. 83The plaintiff's daughter, Zoe Annas, gave evidence in support of her mother's claim for domestic assistance. She had moved out of the family home some years before 2010 but visited her parents regularly. It was clear that her mother did most of the internal housework prior to her accident and that immediately after her injury the plaintiff's husband attended to most of the household chores, including cleaning, laundry and the garden. Following her father's death in November 2010, the plaintiff's daughter's role changed, and she had to assist a lot more around the house and with shopping. In cross-examination Ms Annas stated that she did not know about the housing application (Exhibit 5). Her evidence was that the plaintiff had not improved. Generally she continued to support her mother and would spend a couple of hours with her a week doing cleaning and washing while she was there. 84The plaintiff's son, Stan Annas, also gave evidence. Following the plaintiff's injury he helped out his parents both inside and outside the house and following his father's death, he spent a lot more time helping his mother. His estimate was that he spent seven hours per week providing his mother with assistance. 85The plaintiff also gave evidence that her husband had arranged for a woman named Maria to assist her at home following her accident and Maria had provided approximately four hours assistance each week for a couple of months. It was proposed by the plaintiff that Maria would be paid on an hourly basis at a rate of $20 per hour for the work that she did, in the event that the plaintiff received damages. Notwithstanding that, the plaintiff kept no records of the hours worked by Maria. The plaintiff submitted that the threshold in s 15 (3) of the Act had been satisfied and with or without the assistance provided by Maria, the plaintiff was entitled to an award for domestic assistance from the date of the accident to the date of trial and into the future. That award should be based on seven hours per week care for the past and until she reached the age of 75 years. 86I find that the plaintiff suffered a fracture to her right little finger, an injury to her wrist and right hand which aggravated pre-existing degenerative conditions in her right shoulder and neck. She underwent a surgical procedure to stabilise the fracture and suffered a post-surgical infection. I also find that the plaintiff may have suffered a minor psychological reaction to ongoing pain that she had suffered as a result of her injury, but that the major factor in her depressive symptoms was her bereavement following the death of her husband in November 2010. 87I further find that the plaintiff required domestic care and assistance which was provided by her husband, daughter and son following her injury up until the time of her husband's death in November 2010. Thereafter it has been provided mainly by her son and daughter on a diminishing basis. I find that she required more than six hours a week domestic assistance for a period greater than six months and therefore the threshold test contained in s 15 (3) of the Act has been satisfied. I am satisfied that the plaintiff has required domestic assistance for a period of two years following her injury in total, on an average of seven hours per week for that period. I am not satisfied that she has required domestic assistance since that period of time, notwithstanding that she has a problem gripping some cleaning implements, because of the cascading of her various physiological and psychological problems following the death of her husband. I accept Dr Stapleton's opinion that she requires no ongoing domestic assistance. 88I accept that the plaintiff will require ongoing supervision by her GP, and some medication and physiotherapy. For that I award the sum of $2,500 for future treatment. 89I would assess the plaintiff's damages as follows: Non-Economic Loss - 20% $18,000 Past Treatment Expenses $2,991 Past Domestic Care - 7 hours per week x 104 weeks x $22.90 $16,671 Future Treatment $2,500 Total $40,162 Contributory Negligence 90Given my finding that there was no breach by the defendant of its duty of care in this case, I make no finding as to the plaintiff's contributory negligence. Orders 91I make the following orders: (1)Verdict for the Defendant. (2)Plaintiff to pay the defendant's costs. (3)Liberty to apply granted in respect of costs on seven days notice. (4)Exhibits to be returned. 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: 28 May 2012