District Court New South Wales Medium Neutral Citation: Keys v A & A Lederer Pty Ltd, CB Bensley & J Bensley [2012] NSWDC 208 Hearing dates: 31/10/2012 & 09/11/2012 Decision date: 13 November 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff against the second and third defendants in the sum of $211,264.30; 2.The second and third defendants are to pay the plaintiff's costs of the proceedings as agreed or assessed; 3.The exhibits are to stay with the court file. 4.Liberty to apply on 7 days notice if further orders are required; 5.The solicitor for the plaintiff is to serve a copy of these reasons on the second and third defendants in the same manner as the service of the notices referred to in Exhibit "F". [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - occupier's liability; DAMAGES - assessment of claimed heads of damage Legislation Cited: Evidence Act 1995, s 60 Civil Liability Act 2002, s 15, s 16 Cases Cited: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Category: Principal judgment Parties: Shirley Keys (Plaintiff) A & A Lederer Pty Ltd (First defendant) Bryson Bensley (Second defendant) Joanne Bensley (Third defendant) Representation: Mr J Wilson (Plaintiff) Mr L Hawkes (First defendant) No appearance for the second and third defendants Stacks/The Law Firm (Plaintiff) McCabe Terrill (First defendant) No appearance for the second and third defendants File Number(s): 2011/69430 Publication restriction: None Judgment Table of Contents Nature of case [1] - [2] Procedural history [3] - [6] Credit [7] Facts [8] - [24] Plaintiff's background circumstances [9] - [10] Injury circumstances [11] Injuries [12] Initial treatment [13] Medical assessments [14] - [18] Disabilities [19] - [21] Domestic effects of injuries [22] Mitigation [23] Probable life span of plaintiff [24] Assessment of damages [25] - [32] Non-economic loss [26] Past domestic assistance [27] - [28] Future domestic assistance [29] Future out-of-pocket expenses [30] Past out-of-pocket expenses [31] Summary of damages assessment [32] Disposition [33] Costs [34] Orders [35] Nature of case 1These proceedings are brought by the plaintiff, Mrs Shirley Keys, against the first defendant, A & A Lederer Pty Ltd, the owners of a retail shopping mall in Goulburn, and the second and third defendants, CB Bensley and J Bensley, both trading under the business name of Bensley Cleaning Services, who were cleaning contractors to that mall. 2The plaintiff's claim is for damages for personal injury she sustained at the mall on 28 August 2009 due to claimed negligence on the part of each of the defendants respectively, as occupiers and cleaning contractors for the premises. The proceedings are governed by the Civil Liability Act 2002 ["CL Act"]. Procedural history 3These proceedings were initially listed for an assessment hearing on 31 October 2012 following the entry of a default judgment on 19 June 2012. 4On 31 October 2012, the only defendant to appear was the first defendant, by its solicitor, Mr Hawkes. On that occasion, the plaintiff resolved her claim against the first defendant and consent orders were entered to give effect to the terms of the resolution of that part of her claim. 5As a consequence of the non-service of some damages materials upon the second and third defendants, the hearing of the plaintiff's remaining claim against those defendants had to be adjourned in order to allow for abridged service of such materials. 6At the resumed hearing on 9 November 2012, the second and third defendants did not appear. Evidence was tendered which indicated that reasonable steps had been taken to serve documentary evidence upon the second and third defendants concerning the plaintiff's claim for damages, and to notify them of the scheduled date for the resumed hearing. On 9 November 2012, the matter then proceeded to a final hearing on the damages issues. Credit 7The plaintiff gave what I considered to be entirely credible and truthful oral evidence, which I accept, concerning her injury history, her pre-injury state of health, the circumstances of her injury and the effects the injury had upon her and upon the amenity of her life. In my view, her evidence was restrained, unembellished and understated, regarding her account of her ongoing disabilities Facts 8In the paragraphs that follow, I set out my findings of fact. Plaintiff's background circumstances 9The plaintiff was born in 1953. At the time of her injury she was aged 56 years. She was aged 59 years at the time of the hearing. She has two adult children. Her 19 year old grandson presently resides with her and provides her with some domestic assistance. She had led an active life and worked until she received a work related back injury whilst rolling a heavy hose in 1996. At that time she was working for Australia Post in Cowra. In 1998 she was surgically treated for that injury with an L4/5 laminectomy and discectomy procedure. In 2006 she took up occasional part-time work as an examinations supervisor following her move from Cowra to Goulburn. 10Immediately before the injury, which is the subject of these proceedings, the plaintiff's pre-existing low back condition had substantially settled down and had not been causing her particular difficulties. Injury circumstances 11On 28 August 2009, the plaintiff was walking within premises known as the Goulburn Market Place when she slipped and fell on some wet tiles. In the course of her fall, she struck her left jaw on a post balustrade fitting before falling down onto the tiled floor. It is not necessary to further describe the circumstances or the conditions which led to that injury in view of the fact that default judgment has been entered. Injuries 12When the plaintiff fell, she sustained multiple jolting injuries to both arms, her right hand, her left lower jaw, her left hip and her lower back. She was also psychologically shocked by the circumstances of her injury. The site of her lower back injury from the fall in question was near the site of her previous back injury, and this aggravated her left sided sciatica, which had been quiescent for some time before the injury which is the subject of these proceedings. Initial treatment 13The plaintiff initially consulted her general practitioner who referred her for x-rays and prescribed anti-inflammatory medications. She also attended Goulburn Hospital. Subsequent x-rays revealed no abnormalities at the sites of her injuries. Subsequently, the plaintiff underwent further CT and MRI imaging studies of her lumbar spine and she had corticosteroid injections administered to her right hip. The remainder of her treatment has been conservative in nature, but involving a number of medical consultations and pharmaceuticals. Medical assessments 14The plaintiff tendered two bundles of medical reports. The first bundle dealt with the treatment and assessments she undertook following the injury which is the subject of this claim: Exhibit "B". The second bundle comprised the treatment and assessment reports which followed her 1996 back injury, and which covered the time period 1996 to 1998. This material provided a relevant background to the assessment required in this case: Exhibit "C". 15The reports from the 1996 to 1998 period indicated that after the plaintiff had recovered from laminectomy and discectomy procedures carried out on her lumbar spine in January 1998, by the end of October 1998 her back condition had improved substantially, so that she was fit to undertake clerical duties but with the caveat that she avoid frequent bending or heavy lifting: Dr Cant, Exhibit "B", page 32. 16The plaintiff said, and I accept, that the residual effects of her 1996 back injury and the subsequent surgery continued to settle, and at the time of the injury in 2009 which is the subject of these proceedings, she was much less affected by those former problems and was able to undertake all the necessary physical tasks required in order to run her household. 17Of the 158 pages of post-2009 medical reports and clinical notes within Exhibit "A" that relate to the injury which is the subject of this claim, I find that the three reports of Dr Raymond Wallace, consultant orthopaedic surgeon, respectively dated 6 June 2011 (2) and 10 October 2012, provide a good representative insight into the plaintiff's present problems, and the prognosis of those problems. 18Dr Wallace noted that the plaintiff had difficulties with household tasks, aspects of self-care, difficulty driving and difficulties with home and garden maintenance. He also recorded that on his examination, he considered the plaintiff walked with an antalgic or pain avoidant gait, and she was tender over the L3 to L5 spinous processes. He considered that the plaintiff had suffered a musculo-ligamentous strain to the lumbar spine and a temporary aggravation to a pre-existing degenerative lumbar spondylosis. Dr Wallace supported a claim for ongoing domestic assistance. Disabilities 19Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical and allied practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised her complaints. I take those summaries to be evidence of her injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 20Since her fall, the plaintiff's complaints have comprised headaches, low back pain, related left sided sciatica, and left sided jaw pains. Her back pains and sciatica adversely affect her ability to sustain activities such as prolonged sitting, standing, and walking. Her ability to lift and bend, and to carry objects has become impaired. She estimates her level of pain to be 7 out of a maximum scale of 10. She has reduced physical strength and dexterity. She is no longer able to drive her manual car because of difficulties with gear and clutch changes. She has reduced manual dexterity in her right hand, which was jarred in the fall. 21The plaintiff now needs regular visits to medical practitioners and she needs to take painkilling medication, which will involve her in future expense and inconvenience. All of these matters combine to cause the plaintiff to experience frustration and annoyance. The plaintiff was not in employment at the time of her injuries and she makes no claim for loss of income or loss of earning capacity. However, the disabilities outlined above have had and will continue to have a significant adverse impact upon the amenity and enjoyment of her life in retirement. Domestic effects of injuries 22As a consequence of her injuries, and her reduced mobility and agility, the plaintiff has been unable to attend to her normal household and domestic tasks. As a result she has had to obtain the gratuitous assistance of her sister, her daughter and her grandson, with tasks such as housework, ironing, cleaning, transport whilst shopping and the like. The basis for that claim is supported by the medical evidence of Dr Wallace. Mitigation 23The plaintiff has sought out and obtained medical and pharmaceutical treatment for the effects of her injuries. A review of the tendered medical evidence satisfies me that she has taken reasonable steps to mitigate the effects of her injuries. Probable life span of plaintiff 24In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses. At age 59 years, the plaintiff has a probable life span of 29 remaining years. There is no evidence that directly indicates the plaintiff's ordinary working life would be foreshortened by early mortality. The 5 per cent multiplier for 29 years is 809.6. Assessment of damages 25In the paragraphs that follow, I set out my assessment of the plaintiff's entitlement to an award of damages. Non-economic loss 26In my view, the medical evidence and the plaintiff's disabilities, as found in paragraphs [19] - [21] above, and the opinions of Dr Wallace that I have cited at paragraphs [17] - [18] above, justify a significant award of damages for non-economic loss pursuant to s 16 of the CL Act. On behalf of the plaintiff, it was submitted that such damages should be assessed in an amount that is equivalent to 27 per cent of a most extreme case, which, on the current indexed amount for s 16 damages, equates to the sum of $53,500. I consider that to be a reasonable assessment to compensate the plaintiff for her pain, suffering and loss of amenity of life. I therefore assess the plaintiff's entitlement to damages for non-economic loss pursuant to s 16 of the CL Act in the amount of $53,500. Past domestic assistance 27I consider that the plaintiff has made out her claim for the value of gratuitously provided domestic assistance for an average of 7 hours per week from the time of her fall to the commencement of the hearing. Dr Wallace supported a claim of 6 hours per week for some months after the accident on the premise of a temporary aggravation of an underlying spondylosis. However, that evidence has to be read together with the plaintiff's evidence that her back condition did not revert to its previous pre-2009 injury state, which indicates that the aggravation had an ongoing effect to the present time. That aspect of Dr Wallace's opinion also has to be read in conjunction with his opinion which supports an ongoing claim for paid domestic assistance due to the 2009 accident. 28The Appendix to these reasons sets out the applicable statutory amount calculated pursuant to s 15 of the CL Act, in the amount of $28,951. I therefore assess the plaintiff's entitlement to damages for past domestic assistance in the amount of $28,951. Future domestic assistance 29The plaintiff claims future domestic assistance on a paid basis for 4 hours per week at the hourly rate of $45. The claim is supported by the reports of Dr Wallace. This claim involves the projection of $180 per week over the plaintiff's future life span using the 3 per cent multiplier of 809.6, which yields the undiscounted amount of $145,728. I consider this sum should be discounted by 30 per cent on account of potential adverse vicissitudes, and because it must be assumed from the opinion of Dr Wallace that the aggravating effects of the 2009 injury on the underlying back condition may well settle over the course of time. This yields a discounted sum of $102,009. I therefore assess the plaintiff's entitlement to damages for future domestic assistance in the amount of $102,009. Future out-of-pocket expenses 30The plaintiff makes a claim for future treatment and associated expenses. This is for consultations with a general practitioner, a specialist in pain management, future medical investigations, allied treatments including physiotherapy, recurring pharmaceutical expenses and associated transport costs. The claim is analysed as being the equivalent of $35.32 per week as set out in MFI "1". Whilst I consider that amount, and the individual components within it, to be reasonable, I consider it should be discounted to a weekly sum of $25 per week to reflect the possibility of variations due to fluctuating needs for such treatment. The projection of $25 per week at 3 per cent over 29 years (x 809.6) yields the sum of $20,240, which I round down to $20,000. I therefore assess the plaintiff's entitlement to damages for future out-of-pocket expenses in the amount of $20,000. Past out-of-pocket expenses 31The plaintiff's claim for past out-of-pocket expenses is in the amount of $6,804.30, this being the amount she must refund to the Health Insurance Commission for her treatment expenses to date. That amount is reasonably claimed and I therefore assess the plaintiff's entitlement to damages for past out-of-pocket expenses in the amount of $6804.30. Summary of damages assessment 32My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $53,500.00 (b) Past domestic assistance $28,951.00 (c) Future domestic assistance $102,009.00 (d) Future out-of-pocket expenses $20,000.00 (e) Past out-of-pocket expenses $6,804.30 Total $211,264.30 Disposition 33The plaintiff has established her entitlement to a verdict and judgment in her favour against the second and third defendants in the assessed amount of $211,264.30. Costs 34As the plaintiff has succeeded in obtaining a verdict and judgment in her favour against the second and third defendants, she is also entitled to have her agreed or assessed costs of the proceedings paid by those defendants on the ordinary basis, unless some other entitlement can be shown, in which case, there should be liberty to apply for some other order. Orders 35I make the following orders: (1) Verdict and judgment for the plaintiff against the second and third defendants in the sum of $211,264.30; (2) The second and third defendants are to pay the plaintiff's costs of the proceedings as agreed or assessed; (3) The exhibits are to stay with the court file; (4) Liberty to apply on 7 days notice if further orders are required; (5) The solicitor for the plaintiff is to serve a copy of these reasons on the second and third defendants in the same manner as the service of the notices referred to in Exhibit "F". APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15 (7 hours per week between 29 August 2009 and 31 October 2012) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.15 s.15 7 HOURS PER RATE RATE WEEK 1. 29.08.2009 to 20.11.2009 11.85 $959.90 $23.99 $1989.97 2. 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $2179.49 3. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $2225.36 4. 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $2219.07 5. 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $2215.47 6. 20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $2240.65 7. 19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $2306.32 8. 21.05.2011 to 19.08.2011 12.85 $1026.00 $25.65 $2307.21 9. 15.08.2011 to 18.11.2011 12.71 $1027.10 $25.67 $2283.85 10. 19.11.2011 to 17.02.2012 12.85 $1016.30 $25.40 $2284.73 11. 18.02.2012 to 19.05.2012 12.85 $1054.70 $26.36 $2371.08 12. 20.05.2012 to 31.10.2012 23.42 $1054.50 $26.36 $4321.58 TOTAL $28,951.78 ********** 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: 13 November 2012