District Court New South Wales Medium Neutral Citation: Irena Alat v Franklins PTY LTD [2012] NSWDC 104 Hearing dates: 26, 27 July 2011 and 12, 19 August 2011 Decision date: 20 April 2012 Before: Letherbarrow SC DCJ Decision: Verdict and judgment for the plaintiff Catchwords: TORTS - fall on spillage in supermarket - negligence - duty of care - breach of duty - causation of damage - contributory negligence - assessment of damages Legislation Cited: Part 29 Rule 29.10 of the Uniform Civil Procedure Rules (2005), s5B, s5D, s5R, s12, s15 of the Civil Liability Act (2002) Cases Cited: Wyong v Shirt [1980] HCA 12,Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241, Shoey's Pty Ltd v Allan (1991) Aust torts Reports 81-104, Waverly Council v Ferriera [2005] NSWCA 418, Stretenovic v Reed [2009] NSWCA 280, Council of the City of Greater Taree v Wells [2010] NSWCA 147, Woolworths Ltd v Strong [2010] NSWCA 282, Strong v Woolworths [2012] HCA 5 Category: Principal judgment Parties: Plaintiff: IRENA ALAT Defendant: FRANKLINS PTY LTD Representation: Plaintiff: Mr. J Rowe Defendant: Mr Maconachie QC Mr D. Lloyd Plaintiff: Turner Freeman Defendant: Colin Briggers & Paisley File Number(s): 2010/313422 Judgment 1In this matter the plaintiff seeks damages for personal injuries which she sustained on Friday, 11 April 2008, as a result of slipping on some thickened cream which had been spilt on the floor of the defendant's supermarket premises located at Liverpool Plaza, Liverpool. 2The case for the plaintiff was presented over two days, being 26 and 27 July last, at the conclusion of which Mr Maconachie QC, senior counsel for the defendant, moved the court for judgment in favour of his client pursuant to Part 29 Rule 29.10 of the Uniform Civil Procedure Rules, 2005, "on the ground that, on the evidence given, a judgment for the (plaintiff) could not be supported". 3Considerable argument thereafter ensued with reference to s 5B and 5D of the Civil Liability Act 2002 (the "CLA"). I was referred to numerous authorities and provided with detailed written submissions by Mr Maconachie QC raising, inter alia, the correct interpretation of s 5D in light of the Court of Appeal's decision in Woolworths Ltd v Strong [2010] NSWCA 282 from which Mr Maconachie QC informed me the High Court had granted special leave to appeal. It was not suggested by either party that my decision on the Part 29 Rule 29.10 application should await the High Court's decision. In fact, Mr. Maconachie QC submitted that whatever such decision was, it could not affect such application. 4Mr Rowe, counsel for the plaintiff, also referred me to numerous authorities concerning slip and fall accidents in supermarkets going back over approximately the last twenty years. 5As there was only one further hearing day available before I had to recommence a part heard matter, with both counsels' consent, I reserved my decision on the part 29 Rule 29.10 application, indicating that when I handed it down, if such application was unsuccessful, the matter could then proceed on a date suitable to the parties. 6I handed down my reserved decision in relation to such application on 12 August last and refused it (see separate judgement). I then stood the matter over part heard until 19 August last. On that date, I refused an application by the plaintiff to reopen her case to call on a notice to produce directed to the defendant which had been prepared in consequence of certain deficiencies in the plaintiff's case to which I had adverted when dismissing the defendant's earlier application. I also dismissed an application brought by the defendant seeking leave to call evidence on the issue of quantum despite its earlier failed application pursuant to Part 29 Rule 29.10. I thereupon heard addresses and reserved my decision, agreeing to a joint request by Mr Rowe and Mr Lloyd, Mr Macconachie's junior, to await the High Court's decision in Strong v Woolworths. 7The High Court handed down its decision (Strong v Woolworths Ltd [2012] HCA 5) on 7 March last. I then gave the parties an opportunity of making further submissions in writing as to the effect of that decision on the present matter. The Plaintiff's Evidence As To Liability 8Apart from the plaintiff, the only witness to give oral evidence in her case was her husband whose evidence was only relevant to the issue of quantum. 9In addition to her oral evidence as to liability, the plaintiff tendered a plan drawn by her of the defendant's store (Exhibit B), two photographs of the store's entrance (Exhibits C1 and C2) and two photographs of the aisle in which she fell (Exhibits D1 and D2). She also tendered four photographs of the bruising occasioned to her left leg (Exhibit E) which largely go to the issue of quantum but are also relevant to the question of "the likely seriousness of the harm" pursuant to s 5B(2)(b) of the CLA as are her bundle of medical reports (Exhibit F). 10Further, the plaintiff tendered copies of three documents relating to her accident which emanated from the defendant. Tendered first was Exhibit H, headed "Incident Investigation Report" which is undated and unsigned. Exhibit J was then tendered, headed "Incident Notification" which whilst signed is similarly undated. It is possible that Exhibits H and J in their original form comprise in fact a two page single document. Finally, Exhibit K was tendered, which is a three page document headed "Hazard Report", signed several times and dated 14 April 2008. However, it is also signed by the same person in the middle of page two where it is dated 11 April 2004. The Plaintiff's Oral Evidence 11In answer to a leading question in chief, the plaintiff said that she went to the defendant's store "at about 5.45pm" on the day in question. However, in this respect, her statement of claim pleads in paragraph 4 that she went to the area in the store where she fell at "about 5.30pm". 12The plaintiff's purpose in going to the defendant's premises was purely to buy a specific form of meat for her cat. As stated, two photographs showing the front of the store taken from just outside comprise Exhibits C1 and C2. The path that she took from the store's entrance to the aisle where the cat food was kept is shown on Exhibit B. Exhibit D1 shows the aisle with "Fresh Meat" located on the right and "Dairy Foods" located on the left. A further view of such aisle taken from its other end is shown in Exhibit D2. The plaintiff indicated that she entered the aisle with the "Fresh Meat" section being on her right. 13The plaintiff had been to the store before and knew the aisle in which the pet meat was kept and even the shelf upon which it was located. She said she checked the meat's date, put it in her basket and started to walk away when she slipped. She said she stepped two paces to her left in a half turn when she stepped into something and her left leg "flew" forward and she did the splits. As to where she slipped, she said that it was "just about where this man is standing", referring to the man in the green and blue shirt depicted in Exhibits D1 and D2. 14After she fell she said she remained on the floor for "maybe three, four minutes before someone walked in and found me" whom she described as a "Franklins worker". She said the floor was a whitish cream colour as shown in the photographic exhibits and that whilst she hadn't noticed anything on the floor before she fell, thereafter she noticed a "puddle" the size of a dinner plate of thickened cream which had a skid mark through it, apparently caused during her fall. Her pants and handbag had some of this cream covering them. 15The plaintiff said she couldn't get up when the defendant's employee found her. She was then provided with a chair which she managed to get into. She said she was in the chair for maybe twenty minutes before the ambulance arrived and she was then taken to Liverpool Hospital. 16In cross-examination, she said she walked into the store about 5.30pm, went straight to the pet food area and took a "matter of minutes" to check the date on the products before selecting some prior to stepping to the left and falling. She further agreed that it was possible that the accident occurred further down the aisle than the position in which the green and blue shirted man is shown in Exhibit D1. She also said that when she walked into the aisle she had a clear and open view. 17It was put to the plaintiff that she told the ambulance officers that she "slipped over a cream container" which she denied. She said that she in fact did see a partially empty cream container after her fall but prior to the ambulance officer's arrival. This container was apparently found by the defendant's worker who found the plaintiff and was located on a shelf opposite in the dairy section. Further, it was half full and such worker "showed everyone". 18It was also put to the plaintiff that she told a triage nurse that she was "walking and stumbled", landing on her back which she also denied. It was further put to her that when she went to a general practitioner later that day she told him that she "slipped in the freezer aisle at Franklins tonight" to which proposition she did not disagree but answered that she had been "telling everyone I did full splits". 19In answer to a question that I asked her after her cross examination concluded, the plaintiff stated that there was no one else in the aisle when she fell nor in the three to four minutes thereafter before the defendant's worker arrived. The Relevant Documents 20In the "Incident Notification form" (Exhibit J) the "Time of Incident" is recorded as 5.45pm. The incident is further recorded as being "Reported to" a Jelena Cupac, also at 5.45pm. Under the heading "Description of incident and how it occurred", it is recorded: "Lady was walking through asile (sic) one. She slipped on thickened cream which was spilled on the floor it was about 50cm and there was bits splattered around. Rest of the container was put on near by shelf. Lady was lying on her on right side, left leg in front of her and right behind." 21The location of the incident was recorded as being in the "middle of aisle 1, in front of salami and yogurts". 22Exhibit J was signed by Ms Cupac who is described as the "Team Member completing report" and also by a Mr Darren Simler who is described as the "Store or Duty Manager". 23In the "Incident Investigation Report" (Exhibit H) the "Time of Incident" is recorded as 5.45pm with the "Description of Incident" being "Lady slipped on thickened cream". 24Under the heading "OH&S Issues", an inspection of the area "immediately after incident" is recorded as showing "thickened cream about 50 cm was spilled one (sic) the floor and some splattered around. There was a foot mark in spillage." 25Under the heading "Investigate and record time (and by whom) area was last inspected or cleaned prior to incident", the "Exact Time" is recorded as 5.25pm and the "Name of Team Member" is that of Ms Cupac. Immediately after this entry the form contains the following: 26"Please ensure copy of the Daily Floor Inspection Log(s) is enclosed with this report completed with signatures". 27No such log or logs are in evidence. 28In the "Hazard Report" (Exhibit K) the "problem (hazard)" is described as a "bottle of No Frills Thickened Cream spilt on shop floor". It is further recorded that this "hazard" was "eliminated immediately". Further, under the heading "Actions to be Taken" it is recorded: "Discuss this particular incident in next OH&S meeting". 29In addition, under the heading "What Further Action Needs to be Taken", the following is recorded: "Communicate to all team members that they must be on a constant look out for any spillages on shop floor even in between floor inspections." 30On the last page of Exhibit K under the heading "Risk Assessment", a table is provided from which a letter and number representing the level of the "Consequence of Risk" and "Risk Priority" is to be respectively selected. In relation to the "Consequence of Risk", the letter "(C)" has been chosen indicating that the risk could result in "Medical attention and several days off work". With respect to the "Risk Priority", the number "4" has been chosen which is defined to represent "Moderate priority: Warn all involved in the practice - RE-EVALUATE work practice". Exhibit K is signed several times by Mr Simler as "Store Manager". Factual Findings The Nature of the Accident 31I am comfortably satisfied that the plaintiff slipped, as described, consequent upon stepping into the contents of a container of thickened cream which had been dropped at some point, most likely by a customer, who had thereafter picked it up and put it on a nearby shelf. Whilst there was some cross-examination as to certain other histories, this description of the accident was never really in issue. When Did The Fall Occur? 32The evidence as to when the plaintiff's fall occurred is somewhat unclear. As mentioned, it was led from the plaintiff that she went to the store "at about" 5.45pm and by way of inference drawn as a result of her subsequent evidence, her fall probably occurred shortly thereafter. In cross examination, she said she walked into the store "around" 5.30pm and again by inference from her subsequent evidence, her fall probably occurred shortly thereafter. Accordingly, on the plaintiff's evidence her fall occurred between about 5.35pm and 5.50pm. 33Exhibits H, J and K all record the accident occurring at 5.45pm but Exhibit K also records that it was "Reported" at that time. Therefore, if the plaintiff fell, as she said, some 3 to 4 minutes before anyone found her, Exhibit K would suggest that her fall occurred about 5.41pm whereas Exhibit H and J state that it occurred at 5.45pm. 34In these circumstances making a finding as to the precise time of the fall is impossible. However, on the probabilities, I consider the documentary evidence to be more reliable than the plaintiff's estimate of the time of her fall, although I accept her estimate of the time she spent on the floor before the defendant's employee arrived to offer assistance. Accordingly, I find that the likely time of her fall was sometime from 5.41pm to 5.45pm. Did the Defendant Have a System of Inspecting its Floors? 35Based on the contents of Exhibit H and in particular, Exhibit K, I am comfortably satisfied that the defendant did have a system of "floor inspections" to which specific reference is made in the latter exhibit but I can not make any specific finding as to the details of this system. When Did The Spillage Occur? 36Based on Exhibit H, I find that the floor was last inspected at 5.25pm and that the subject spillage had not then occurred as it would have been, in my view on the probabilities, noticed and cleaned up by the time of the plaintiff's fall. Indeed, it is a reasonable inference from Exhibit K that the plaintiff's fall occurred "between floor inspections" Accordingly, the spillage happened sometime after 5.25pm and before the plaintiff's fall which I have found occurred most probably sometime from 5.41pm to 5.45pm. Further, the plaintiff took "a matter of minutes" to check the date on the pet food and there was no one in the aisle during this period. I accept this evidence. Therefore, the spillage probably occurred either from 5.25pm to 5.39pm at the earliest or from 5.25pm to 5.43pm at the latest. What Was the Frequency of the Defendant's System of Floor Inspections? 37The evidence does not enable this question to be answered. As stated, it is a reasonable inference from Exhibit K that the plaintiff's fall occurred "between floor inspections". Further, Exhibit H records the "Exact Time" of the last inspection or cleaning of the relevant area as occurring at 5.25pm. 38Based on my finding that the plaintiff's fall occurred sometime from 5.41pm to 5.45pm and assuming that the employee who found her was doing a floor inspection, this would mean that such inspections took place no more frequently than every 16 minutes. If the employee who found her was not doing a floor inspection then the frequency is likely to have been 20 minutes or longer. The defendant called no evidence as to the identity of the employee who found the plaintiff nor as to its system of cleaning. Indeed, as noted below, the defendant called no evidence as to liability whatsoever. The Plaintiff's Submissions 39In addresses, Mr Rowe submitted that once a plaintiff who has fallen on a spillage in a supermarket presents evidence of either no cleaning system being in place or some evidence of a system being in place but the defendant supermarket does not "respond" to that evidence, then the Court "must" find for the plaintiff. Asked to repeat this submission, he re-phrased it somewhat and submitted that where there is evidence of some system, the defendant supermarket bears the onus "to show it was reasonable" and if it calls no evidence or "remains silent, it loses". 40In his written submissions, these arguments were modified into various submissions such as the "plaintiff can succeed if it shows no system or an inadequate system is in place" and that here "there is no evidence from the defendant as to what the system was" and that the "evidence does not permit Your Honour to find what the system was". He further submitted that "a delay of 20 minutes or more in inspecting the aisles near refrigerators where containers of fluid product was kept is excessive in all the circumstances" and alternatively that "it may be inferred from Exhibits H and K that there was no system of inspection that might be regarded as adequate". 41As to the effect of the High Court's decision in Strong v Woolworths, Mr Rowe submitted that the "plaintiff does not have (sic) prove when the spillage occurred. It is sufficient to show the defendant had no adequate system of inspection and cleaning". The Defendant's Submissions 42Mr Lloyd, junior counsel to Mr Maconachie QC, made the defendant's oral submissions and prepared its written submissions. In the latter, the "primary submission made by Franklins" was that there was no evidence upon which the Court could make any finding as to what was a reasonable minimum period to undertake floor inspections. He pointed out in Strong v Woolworths that there was evidence as to that question. 43Mr Lloyd's "next submission" was that "in the present case.... Irrespective of any system, the fact is that there was an inspection at 5.25pm which is a maximum of 20 minutes before the falls.... (and) that being so it is plain that the actions of Franklins on the day were adequate." In this respect he relied upon the High Court's decision in Strong v Woolworths that 20 minute inspections "in an area next to the food court at lunchtime" were held to be reasonable. 44As to "causation" he argued that Strong v Woolworths was not relevant as it "turns on its own facts". Consideration What is the Frequency of an Appropriate System of Floor Inspections in The Circumstances? / Breach of Duty 45There is little direct evidence of the cleaning system. The defendant did not put into evidence its "Daily Floor Inspection Log(s)" referred to in Exhibit H and neither did the plaintiff. The defendant did not call any of its employees to give evidence of what the system of cleaning actually was or should have been. Further, neither party called any expert evidence as to what would have been appropriate in the circumstances. 46As to the relevant circumstances in the present case, the evidence reveals that the supermarket was apparently not busy at the time of the plaintiff's fall as she stated that there was no one in the area when she fell nor for several minutes thereafter. The photographic evidence and the plan (Exhibit B) reveal, to my somewhat limited experience of supermarkets, a store of medium sized proportions. The plaintiff's evidence refers to it being located in the "Liverpool Plaza". There is no evidence as to the size of such plaza. There is also no evidence about the prevalence or otherwise of slipping incidents at the subject supermarket. 47Nevertheless Liverpool is a highly populated area. The defendant, Franklins, is a major supermarket chain and the subject supermarket is not small. Slipping accidents in supermarkets have given rise to considerable litigation throughout Australia for many years. They present a well known risk. In Shoey's Pty Ltd v Allan (1991) Aust Torts Reports 81-104 Handley JA was prepared to assume without deciding that "reasonable inspections" of the relevant department of the defendant's store in Cowra in 1991 "might conceivably have occurred at intervals during shopping hours of up to 30 minutes". In Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241, McHugh J (at 256) considered that in the facts of that case occurring over 25 years ago, if a "proper system had operated, inspection of particular places would have taken place at regular and short intervals" and that in the "ordinary course of events a spilt substance would have been removed within a few minutes". 48In the circumstances in Strong v Woolworths [2012] HCA 5, the majority were of the view (at paragraph [38]) that reasonable care "required inspection and removal of slipping hazards at intervals not greater than 20 minutes". However, such circumstances included the relevant area being outside of the relevant store, not inside a food store in an aisle containing liquid products. 49The determination of the appropriate frequency of any cleaning and inspection system in the relevant area of a defendant's supermarket involves a consideration of s5B of the Civil Liability Act. Pursuant to s5B(1), I find the risk was foreseeable and that it was not insignificant. The real question is what precautions a reasonable person in the defendant's position would have taken. This is to be determined by considering, inter alia, the matters referred to in s5B(2). Such matters have been held to, in substance, reiterate Mason J's remarks in Wyong v Shirt [1980] HCA 12 at [47]-[48]: see Waverley Council v Ferriera [2005] NSWCA 418. 50With reference to the present facts, I find that in 2008, in a supermarket like the defendant's, in an aisle such as this containing numerous liquid items, a reasonable person would have instituted a system of cleaning and inspection of a minimum frequency of every 15 minutes. Each case is depends on its own facts. In the present matter, the aisle in question represented a higher risk than the area being considered in Strong v Woolworths. The defendant itself in Exhibit K assessed the level of risk as requiring it to "RE_EVALUATE" its "work practice". Whilst this is hardly determinative, it is a matter to be taken into account along with the matters referred to in s5B(2). In that regard, the "likely seriousness of the harm" is significant, as born out by the injuries suffered here. The probability that the harm would occur without such a system is, in my view, significant and the burden of taking such precautions is not high. 51I am also comforted in making these findings in the present case where the defendant has chosen not to lead any relevant evidence and in circumstances where clearly it had a system in place but chose to call no evidence of that system. 52Accordingly, as the plaintiff's accident occurred at no earlier than 5.41pm and there had not been a floor inspection since 5.25pm, I find the defendant breached its duty of care. Causation 53In the present matter I have found that the floor was last inspected at 5.25 pm and that the spillage occurred sometime between then and not earlier than 5.39pm and not later than 5.43pm. This means that it occurred sometime over a period of between 14 and 18 minutes. I have found a reasonable system required an inspection every 15 minutes. Thus, the floor should have been inspected again at 5.40pm. On the probabilities the spillage most likely occurred in the 15 minute period between 5.25pm and 5.40pm rather than in the 3 minute period afterwards. This method of reasoning, explained and adopted in Shoey's survives and was, in fact, applied by the High Court in Strong v Woolworths. In these circumstances, if the defendant had in place a 15 minute system of inspections, on the balance of probabilities the plaintiff's accident would not have occurred. Thus "but for" the defendant's failure to implement such a system the accident would not have occurred and therefore "factual causation" pursuant to s5D (1)(a) of the Civil Liability Act is established. As I understand it, there is no issue that it is appropriate for the scope of the defendant's liability to extend to the harm in this case pursuant to s5D(1)(b) and, in this regard, I refer to the high Court's comments at paragraph [19] of Strong v Woolworths. 54Alternatively, if an inspection took place at 5.40pm it would have occurred at least 1 minute and up to 5 minutes before the plaintiff's fall and on the probabilities the fall would not have occurred. 55The plaintiff has therefore established causation and, as a result, her case in negligence against the defendant. Contributory Negligence 56Pursuant to s5R of the Civil Liability Act, the principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent and the standard that applies is that of a reasonable person in the position of the latter, to be determined on the basis of what they knew or ought to have known at the time: see Council of the City of Greater Taree v Wells [2010] NSWCA 147. 57In the present matter, whilst Exhibits C and D establish that the subject floor was an off white or light grey colour which would have obscured, to some degree, the spilled thickened cream in question, such spillage was nevertheless on the plaintiff's own evidence, the size of a dinner plate and she was the only person in the aisle at all relevant times. In my view, a reasonable person in her position keeping a proper look out should have seen the spillage at some point prior to stepping into it. Nevertheless, the degree of her culpability cannot, in my view, be large and I assess her level of contributory negligence at 20%. Quantum - The Plaintiff's Relevant Pre-Accident History 58The plaintiff was born on 22 April 1953 and at the date of her accident was almost 55 years of age. She is currently almost 59. She immigrated to Australia from Croatia in 1988 aged around 35. There is little evidence as to her life before her arrival in Australia although she obtained a "Diploma in education teaching" in 1973. 59Upon her arrival in Australia she initially worked as a cleaner in an hotel and then in schools, describing such work as "heavy". 60Her employment history since as set out in her CV (Exhibit A) is quite impressive and by the time of her subject accident she had worked for some years as an employment consultant for various organizations. 61As to her medical history, when she was about 18 she developed a left-sided rotator cuff problem but this seems to be purely historical. It was also led from her in chief that in her early forties she developed some cervical pain and swelling as well as tenderness in her hands and wrists requiring cortisone injections and physiotherapy. Dr Mahony treated her in this regard but there is no report in evidence from him. 62Around this time, the plaintiff apparently lodged a claim for a disability support pension based upon these various complaints. This was rejected and her appeal was unsuccessful. 63Further, somewhere around the commencement of this century, the plaintiff developed a sharp pain in her right knee and was told it was "a tear". 64The medical reports tendered on behalf of the plaintiff (Exhibit F) all post date her subject accident and there is little pre-accident information contained therein. However, Dr Bodel records in his report of 21 December 2010 that apart from raised cholesterol, hypertension and diabetes for which she takes medication, the plaintiff told him of "some previous minor backache in the past" which settled with physiotherapy. She also told him of a claim in 1995 for tenosynovitis in her shoulders coupled with carpal tunnel syndrome in both upper limbs which settled with conservative care as did a claim arising therefrom in 1997 when "she returned to full-time work to her employment services consultant work". These would seem to be the problems for which Dr Mahoney treated her as set out above. 65In cross-examination as to her pre-accident medical history, the plaintiff confirmed that she was off work for some two years between 1995 and 1997 due to the problems in her hands, shoulders and neck. However, after the settlement of the workers compensation case arising therefrom in 1997, it appears that she chose to return to work in a different field, namely in the employment sphere. 66Whilst it is clear that the plaintiff did suffer from the various abovementioned problems, especially in the mid-90s, it would appear that these had largely settled by the time of her subject accident, although she did state that she had "maybe" seen a Dr Goyal, her treating general practitioner, in March 2008 for some right shoulder pain. Again, there are no records in evidence from this doctor. 67In early April 2008, shortly before her subject accident, the plaintiff resigned from her then full-time job as an employment services consultant with Resolutions Consulting. She had been employed by this organisation since 2007 and this position required her to consistently travel throughout Sydney and to Wollongong. She said that her reason for doing so was to enable her to travel to Europe with her husband on an extended holiday with a planned departure date of 12 May 2008 and the return date of 9 September 2008. In fact, her husband left earlier due to the death of his brother with the result that at the time of her subject accident on 11 April 2008 the plaintiff was living at home with her son who himself was working. 68Despite the accident, the plaintiff left to travel overseas as planned and returned also as planned on 9 September 2008. 69At the time of her resignation from Resolutions Consulting, as I understand her case, the plaintiff had made no specific plans as to her re-entry into the workforce after her intended return from overseas but nevertheless managed to do so obtaining a position commencing on 17 November 2008 as an employment placement consultant with Recovre at Parramatta. According to her particulars, she remained in such position, taking time off from time to time allegedly due to her accident related injuries, until she resigned in April 2009 with her next employment commencing in April 2010, again as employment services consultant, with Max Employment at Ingleburn. Between these two latter mentioned positions the plaintiff underwent left hamstring re-attachment surgery by Dr David Wood, orthopaedic surgeon in June 2009 and an arthroscopic repair to her left medial meniscus by Dr Edward Graham, orthopaedic surgeon, in November 2009. 70As at the date of trial in July 2012, the plaintiff stated that she was then working as a case manager for YWCA in Campbelltown and it is unclear as to why and when she stopped working for Max Employment. 71When the hearing of the matter resumed in August 2012, the plaintiff was recalled, consequent upon leave being granted to re-open her case, for the purpose of giving evidence about a recent job change. She thereupon gave evidence that she had resigned from the position with YWCA on 17 August last, effective 26 August, to take up a position apparently of a similar nature with another employer at higher pay which was also closer to home although she said her real motivation in doing so was to avoid having to walk up and down the 42 stairs to the office of YWCA. The Damages Sought 72On behalf of the plaintiff, Mr Rowe provided a schedule of damages totaling approximately $566,000, the bulk of which was made up of economic loss, totaling approximately $260,000 and gratuitous care totaling approximately $200,000. As to economic loss, a forensic accountant's report prepared by a Mr Mark Thompson became Exhibit L. 73Despite the contents of Exhibit L, Mr Rowe conceded that the question of economic loss could not be calculated in any mathematically precise way but should be approached on a "buffer" basis both as to past and future and including any superannuation losses. 74The defendant provided its own schedule of damages making no allowance whatsoever for either economic loss or care and totally approximately 5% of that suggested by Mr Rowe. The Plaintiff's Injuries, Treatment And The Medical Evidence 75After the plaintiff's fall she was taken by ambulance to the Liverpool Hospital where she said she was X-rayed and remained for some three and a half hours but then left without seeing a doctor apparently due to a further likely waiting period of four hours. She then went to her usual GP, Dr Goyal, whom was on holiday, seeing a Dr Singh instead, who recommended physiotherapy that she undertook. 76The plaintiff did not tender an ambulance report, any report relating to the x-ray mentioned, any records, as stated, from Dr Goyal's practice, any report from Dr Singh or from the physiotherapist mentioned. Indeed, the first document in time contained in the plaintiff's bundle of medical reports (Exhibit F) is a left knee and ultrasound report from a Dr Ecker addressed to Dr Goyal dated 18 September 2008 which is over 5 months after her accident. The balance of such medical evidence postdates this report. 77However, the plaintiff did tender the above mentioned four photographs of the back of her left leg taken two days after her subject fall (Exhibit E) which show quite considerable and extensive bruising. 78In evidence, the plaintiff described having significant pain down her left leg from the hip area shortly after her fall. Nevertheless, she said that by the time she went overseas on 4 May 2008 such pain was "occasional" to which she "didn't pay much attention". Whilst overseas she said that she did a lot of walking but after a while developed a strong pain in her left knee, hip and thigh and had considerable difficulty sleeping and utilising stairs as well as dressing. As a result, she said she "had to see a specialist over there who performed ultrasound and suggested physiotherapy" but as it was apparently close to the time that she was coming home she did not undertake this treatment. 79As mentioned, the plaintiff and her husband returned to Sydney on 9 September 2008 and she said she immediately had problems with housework, all of which she said that before her fall she managed by herself. She also said that she was able to clean her house "from top to bottom in 3 to 3.5 hours before the accident". 80Due to these problems, she said that her husband started assisting with such tasks as vacuuming and mopping and taking the washing basket out which continued as at the date of trial. The plaintiff went on to say that she was very house proud before her accident doing things "to perfection" and whilst she has returned to some tasks she has "to close (her) eyes and not see you know the parts that nobody else sees". 81The plaintiff described her home as a four-bedroom duplex with two living areas, a laundry, toilet and kitchen downstairs and with four bedrooms, two bathrooms with a separate toilet upstairs. She continues to live there with her husband and son who is 31. 82As mentioned above, consequent upon her return to Australia, the plaintiff had an ultrasound which was reported on by a Dr Ecker as showing the presence of a moderate volume of fluid within the synovial space of the left knee joint. 83The plaintiff also apparently saw another general practitioner, a Dr Sorrenti, for the first time on 25 September 2008 although there is no report from this practitioner either. Nevertheless, there is a MRI scan report pertaining to the plaintiff's pelvis and left thigh addressed to Dr Sorrenti from Dr Gale, radiologist, dated 7 October 2008 which raises the possibility of an avulsion of the plaintiff's left hamstring from the ischial tuberiosity. 84Exhibit F also contains two further radiological reports both dated March 2009, the first from a Dr Patel to Dr Goyal which revealed some arthritic changes in the plaintiff's low back and both knees. The second is from a Dr Moses addressed to a Dr Ong, from whom there is also no report, which relates to an x-ray of the plaintiff's left knee and a CT scan of her lumbar spine. Dr Moses concludes in relation to the former that there was a moderate joint effusion present with suggestions of mild degenerative changes. In relation to the latter, his impression was of the existence of moderate multi-level degenerative changes consistent with, inter alia, a moderate disc protrusion of L2/3 impinging on the L3 nerve root. 85The first substantive medical report contained in Exhibit F is that from a Dr Hisu, orthopaedic surgeon, dated 2 April 2009, relating to the plaintiff's attendance upon him on 26 March 2009 on referral from Dr Ong. Based upon his examination and assessment of the radiology be recommended an MRI of the lumbar spine and suggested conservative measures in relation to her pains in the left knee and hip. 86The plaintiff underwent MRI scans to her lumbar spine, left knee and left hip in March and April 2009. The lumbar MRI revealed similar findings to the abovementioned CT scan. The MRI of her left hip revealed, inter alia, a complete avulsion of the left hamstring origin and a tear at the left acetabulas labrum. The MRI of the left knee recorded, inter alia, a tear in the medial portion of the posterior horn. 87The plaintiff was referred to Dr David Wood, orthopaedic surgeon, by a Dr Sullivan from whom there is also no report, in May 2009. In light of the recent MRI findings, Dr Wood admitted her to the Castlecrag Private Hospital and performed a surgical repair of her hamstrings to the ischial tuberosity on 30 June 2009. He was in no doubt that this injury occurred in the subject fall. Post operatively and over the next 6 months, Dr Wood was pleased with the result of the surgery and with her "excellent pain relief". He expected her to "end up with 95% normal function of the hamstring area". His last report dated 17 December 2009 is to Dr Ong in which he states she "continues to do well with her hamstring repair" but notes, inter alia, ongoing sciatic pain "but that is from her back". 88As to her left knee, Dr Ong referred the plaintiff to Dr Graham, orthopaedic surgeon, who first saw her in May 2009. He diagnosed a tear of the medial meniscus but delayed performing an arthroscopy until November 2009, apparently to enable Dr Wood to operate on her hamstring. At that time, he debrided the meniscal tear noting that moderate arthritis was present in the medial compartment and in the under surface of the patella. Over the next few months, he noted her knee pain had improved and, at the time of his last review in late January 2010, that she had slight knee pain and some swelling "when doing free style kicking". She was also complaining of some bilateral buttock pain. As to causation of her knee symptoms, Dr Graham was of the view that "it is reasonable to suspect a fall may have caused the injury to her left medial meniscus". He appears to conclude that any then current work incapacity arising from the knee was minimal. 89After her hamstring surgery, Dr Hsu noted upon examination on 25 August 2009 that in relation to her back pain "most of her symptoms in her let thigh seem much improved...". Consequent upon her knee surgery, Dr Hsu reviewed her again in January 2010 when she was complaining of some hip pain which he felt was in the province of Dr Graham but thought that her complaints of left calf numbness were "likely coming from her back". He noted that an earlier cortisone injection in relation to her "L2/3 disc herniation" had "greatly helped her" and suggested only "some gentle physiotherapy and back strengthening exercises" for the future. 90In February 2010, whilst at home, the plaintiff "stepped out of" her kitchen and felt a sharp pain across her left calf. This occurred after some physiotherapy that she undertook that day. As a result, the plaintiff underwent a left calf ultrasound upon referral from Dr Ong and the relevant report describes a partial thickness tear of the superficial fibres of the gastrocnemius muscle approximately 18 centimetres below the knee. 91In December 2010, the plaintiff's solicitors referred her to Dr Bodel, orthopaedic surgeon, who was provided with a considerable amount of documentation including various radiographic studies. Her then complaints included "widespread pain involving all of the injured areas" with the main area of pain being in the left buttock, hip and down the left thigh. She also complained of pain in the left groin and left knee together with numbness and tingling down the lateral border of her left leg to her ankle. She told Dr Bodel she could drive both an automatic and manual car but rarely did so due to her pain and that she "struggles with her housework and her husband helps with the vacuuming, mopping and hanging out the clothes". 92Upon examination, Dr Bodel noted, inter alia, wasting in her left calf and that her "left thigh is 1cm smaller than her right". 93As to a diagnosis, Dr Bodel said that this "is a very difficulty issue" but that she "has probably torn the medial meniscus in her left knee, the hamstring origin in the base of the pelvis at the left hand side but also has suffered significant aggravation of longstanding pre-exiting disease through the lumbar spine" which he felt was the "main pathological area". He regarded her prognosis as guarded "because of the severity of her pathology". As to work capacity, Dr Bodel was of the view that the plaintiff's "ongoing disabilities have significantly impaired her employment capability as an employment services consultant". Finally, as to future treatment, he described this area as a "difficult issue" but "suspect(ed) that she will require further treatment specifically for the back" and that she "may need to consider de-compressive surgery if a single level of disc pathology can be found as the main cause factor of her ongoing complaints." In a short follow up report he gave various costings of between $11,500 to $19,500 for such treatment including prior testing although the upper range related to a spinal fusion rather than a "simple decompression". 94Heather Tchan, occupational therapist, assessed the plaintiff in January 2011 and her lengthy report is Exhibit G. In short, Ms Tchan regarded the plaintiff as requiring 7.3 hours per week future "domestic attendant care". As to past care, Ms Tchan sets out a very complicated table detailing many different periods requiring between 7.3 and 23.3 hours per week in relation to "personal, domestic and outdoor maintenance tasks". It is costed, "based on Average Weekly Earnings" at some $45,077 and, alternatively, "based on commercial rates" excluding GST at some $68,000.00. Both estimates are for the period from the accident until 28 January 2011. 95I have found Ms Tchan's report generally very had to follow, especially in relating the calculation tables to the recording of the relevant complaints. Ms Tchan also noted that the plaintiff's son did not live at home at the time of her visit whereas he did at trial. She further noted that the plaintiff at the time of her assessment worked full-time which she still does. It is tolerably clear that Ms Tchan's calculations include allowances for the plaintiff's inability to perform normal household duties not only for her own benefit but also for that of her husband although no break-up as between the two has been attempted. 96The plaintiff's own evidence in relation to the effect the accident has had on her ability to undertake domestic duties was far from detailed. She described receiving help from her husband in relation to, inter alia, vacuuming, mopping, washing and "low down" tasks as well as with some aspects of the cooking but no evidence as to the time this assistance was provided over an average day or week was led from her. Nor was any attempt made to elicit the precise periods that the plaintiff was incapacitated for housework post-surgery other than her stating that in relation to her hamstring surgery she was "in bed for 2 weeks" after which she was able to get out of bed but, apparently, thereafter took another three or four months "when I was recovering completely to be able to do little bit round the house". 97The plaintiff's husband gave evidence that before her accident he did "very little, nothing" around the house apart from some cooking which he enjoyed. After her accident when they returned from overseas things changed. In answer to a question as to "how many hours a week did you assist the plaintiff in or around the house in the period of say six months after your return from Croatia" he answered "at least 6 hours" a week. As to the position at trial, he answered "about six hours" In addition, he said he assisted more after her surgical procedures when she was bedridden for two weeks consequent upon the first and "maybe one week" after the second. He said he continues to assist in such tasks as vacuuming and mopping and doing the washing. He says his son does not assist at all as he's "all the time in the work". 98In cross examination, Mr Alat denied knowing that six hours was "a legal minimum" in relation to any claim for assistance with domestic matters. At one point he said his evidence as to such a period of six hours was "approximate" but then said it represented "the minimum". 99As to the plaintiff's employment, Mr Rowe tendered a document setting out her history in this regard up until May 2009 which became Exhibit 'A'. The plaintiff herself gave very little evidence as to any effect the subject accident has had upon her various jobs since, nor as to her reasons for moving between them. She also gave no evidence as to sustaining any consequential delay in returning to the workforce after her return to Australia because of the accident. She did say that in her job with the YMCA she had some problems with sitting for "long periods" and that her primary reason for leaving it for the aforementioned higher paid position was the number of stairs at the YMCA office. Overall, she was asked very few questions about her employment situation post accident and her evidence in this regard was quite lacking in any detail. Assessment of Damages Non-Economic Loss 100Mr Rowe submitted that pursuant to s16 of the CLA, a percentage of a most extreme case of 25% was appropriate whereas Mr Lloyd submitted 20%. 101Overall, I accept the opinion of Dr Bodel, whose views generally accorded with the authors of the medical reports tendered. I find that the plaintiff's two surgical procedures were necessary as a result of injuries to her left hamstring and knee area as described and further that she significantly aggravated her previously largely asymptomatic lumbar spine. She continues to suffer, in my view, moderate symptoms in these areas with little prospect of improvement bearing in mind that it is some four years since her subject accident. I am not satisfied on the evidence that the partial thickness tear to her left calf muscles sustained in February 2010 relates to her subject accident. 102In the circumstances, I accept the plaintiff's submission and assess her entitlement under this head as 25% of a most extreme case and accordingly award her the sum of $34,000.00. Past Out of Pocket Expenses 103These were mathematically agreed in the amount of $15,254.71 and I see no reason why they should not be allowed in full. Future Out of Pocket Expenses and Treatment 104In this respect, Mr Rowe sought various sums made up largely by an amount of $18,000.00 for the cost of a spinal fusion and approximately $40,000 by way of recurring expenses and other treatment costs over her lifetime as assessed by Ms Tchan for such matters as pool membership, pilates, massage therapy and occupational therapy. 105As to the potential decompressive surgical costs, Dr Bodel's opinion was predicated upon the basis that a single level of injury amenable to surgery could be found as the main cause for the plaintiff's complaints. No testing so far has done so and, in fact, such testing has revealed multiple levels of pathology. In my view, the plaintiff is a poor candidate for any form of spinal surgery and she gave no evidence of wanting to undertake any. 106As for Ms Tchan's suggestions, they receive little support elsewhere and, in my view, are a gross overestimate of the plaintiff's reasonable needs. 107Nevertheless, the plaintiff may benefit from some conservative treatment such as physiotherapy from time to time. Overall, I propose to award her the sum of $5,000.00 to cover all matters claimed under this head. Past Economic Loss 108As mentioned, the evidence from the plaintiff in this regard is lacking in any detail. It is now some 4 years since her subject accident. Whilst Mr Rowe tendered the forensic accountant's report from Mr Thompson (Exhibit L), which assesses all alleged economic losses, past and future including superannuation at more than $250, 000.00, in addresses he conceded that it is useful as an "aid" only and submitted that such past and future losses should be looked at on a "buffer" basis which is permissible despite the provisions of s12 of the CLA: see Sretenovic v Reed [2009] NSWCA 280. 109There is no evidence from the plaintiff that she was delayed in returning to the workforce after returning from overseas as a result of her accident. Nevertheless, her pre-accident work history was very good and her treatment was rather lengthy and involved two surgical procedures. However, whilst Mr Thompson in Exhibit L "assumes" that the plaintiff was forced to resign from her relevant employment in May 2009 as a result of her injuries and did not return to any work until around April 2010 over which period underwent the said surgery, she herself gave no evidence of this. The plaintiff's tax returns annexed to Exhibit L appear to show significant income loss after her accident but do not prove, inter alia, the cause of it. Further, the large income for the 2008 financial year includes almost $70,000 by way of a lump sum superannuation payment apparently received in consequence of the plaintiff resigning her pre-accident position to travel overseas. 110In short, Mr Rowe led no evidence from the plaintiff of any actual income loss since her accident. In these circumstances, there is little evidentiary basis for awarding her damages for past economic loss. However, she did have two major surgical procedures after she had returned to work and there is some evidence of her being bedridden for a number of weeks thereafter. It is likely that she sustained some economic loss as a consequence, perhaps even a significant loss, but, on the available evidence, I am only prepared to award her $15,000 by way of a "buffer" in this regard including any superannuation loss. Future Economic Loss 111The plaintiff currently works fulltime and, so I was informed by agreement, earns $48,000 per annum gross, an increase of some $5,000 over what she earned in her prior position with the YMCA. 112There is no evidence that the plaintiff would be earning any more if the accident had not occurred and Mr Rowe did not submit otherwise. However, she does have the significant ongoing problems described by Dr Bodel. In my view, she does suffer from a loss of earning capacity as a result of the subject accident. I accept that she would have difficulty travelling and getting to work and also difficulty in bending and lifting at work, as well as sitting. However, she is now some 59 years of age and will be 65 in 5 years, so any such incapacity will only operate over a reasonably short period. 113In the circumstances, I propose to award her $10,000.00 by way of a "buffer" under this head of damage including any superannuation loss. Past Care 114As to both past and future care, Mr Rowe confirmed in addresses that the claim is put on a gratuitous basis as shown by the calculations set out in his schedule. 115As to the past, he relied upon Ms Tchan's calculation based on average weekly earnings and claimed approximately $45,000.000. 116Mr Lloyd argued that the evidence was so unsatisfactory that I could not be satisfied that the relevant 6 hour per week for 6 months threshold under s15 of the Civil Liability Act was satisfied. 117The plaintiff's evidence and that of her husband relating to this head of damage was imprecise and lacking in detail. Ms Tchan's calculations are hard to follow and her assessment includes some allowance in relation to care provided to the plaintiff's husband, any allowance for which falls under s15B of the Civil Liability Act which contains its own 6 hours per week for 6 months threshold. 118Nevertheless, the plaintiff's surgical procedures were significant and there is evidence of relatively lengthy periods of recovery thereafter during which I accept that the plaintiff's husband would have been required to assist her to a degree beyond 6 hours per week. 119Overall, I propose to award to plaintiff 8 months, or approximately 34 weeks, past gratuitous domestic assistance from June 2009 until January 2010 inclusive at a level of 10 hours per week at an average statutory rate of $24.24 per hour. This results in an allowance of $8,241.00 which I award under this head. Future Care 120Mr Tchan's assessment of 7.3 hours for future attendant care is, in my view, excessive based on the other evidence in the case. Apart from the period referred to above, any need in the plaintiff for compensable assistance since her accident, in my view, falls below the 6 hour per week threshold and there is no evidence that this will change in the future. Accordingly, I allow her nothing under this head of damage. Summary (i) Non Economic Loss $34,000.00 (ii) Past Out of Pocket Expenses $15,264.71 (iii) Future Out of Pocket Expenses $5,000.00 (iv) Past Economic Loss $15,000.00 (v) Future Economic Loss $10,000.00 (vi) Past Care $8,241.00 (vii) Future Care Nil TOTAL $87,505.71 121. After a reduction for contributory negligence of 20%, there will be a verdict and judgement for the plaintiff in the sum of $70,005.00. 121I will now hear the parties as to costs. ********** 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: 25 January 2013