District Court New South Wales Medium Neutral Citation: Langendoen v Coolangatta Estate Pty Ltd [2012] NSWDC 210 Hearing dates: 06/11/2012 - 07/11/2012 Decision date: 09 November 2012 Jurisdiction: Civil Before: Elkaim SC DCJ - at Wollongong District Court Decision: Verdict for the plaintiff for $168,516.54 Catchwords: Personal injury, intoxication Legislation Cited: Civil Liability Act 2002 Cases Cited: Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Clifton & Ors v Lewis [2012] NSWCA 229 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 Rabay v Bristow [2005] NSWCA 199 Category: Principal judgment Parties: Sharon Langendoen (Plaintiff) Coolangatta Estate Pty Ltd (Defendant) Representation: S Longhurst (Plaintiff) J Turnbull (Defendant) Kells The Lawyers (Plaintiff) McCulloch & Buggy (Defendant) File Number(s): 2011/00321859 Publication restriction: No Judgment 1The plaintiff was born in 1959 in South Wales. She came to Australia in 1966. She has led a generally active life, working, bringing up children and engaging in recreational activities. Unfortunately tragedy has also intervened. Her daughter Kelly committed suicide in 2001 and one of Kelly's children has serious learning difficulties. 2The plaintiff's personal experiences led her to an occupation in which she directed her efforts to the care of disabled children. As at November 2008 she was working at Warilla High School as a "Teacher's Aide Special" assisting with children with a mental illness. 3As part of her occupational eduction the plaintiff attended a Youth Conference at the Coolangatta Estate Winery, owned and run by the defendant. The conference took place on 6 and 7 November 2008. The plaintiff fell off a wall in the early hours of 7 November. She was injured. She blames the defendant for her injuries and seeks damages under the following heads: Non-economic loss, past and future economic loss, past and future domestic care and medical expenses. 4The action is governed by the Civil Liability Act 2002 (the "CLA"). Sections 5B, 5D, 5E, and 50 are of particular relevance. 5The plaintiff's injuries were not greatly in dispute although the defendant did challenge the extent of the damages that allegedly flowed from them. The defendant conceded that, as an occupier, it owed the plaintiff a duty of care. It denied that there had been any breach of that duty of care. The main focus of the case however was not on the breach. Primarily the defendant said that the plaintiff's injuries were of her own making, in particular that she was intoxicated to an extent that provided a complete defence to the claim under Section 50(2) of the CLA or at least a substantial reduction for contributory negligence under Section 50(3). The fall 6The plaintiff's version of the events of 6 November 2008 is as follows: she went to the conference with her friend and fellow Warilla High School employee, Ms Marion Moore. She attended various seminars through the day. At about 4.30pm she returned to her room, had a shower and dressed for dinner. She arrived at dinner at about 6pm. To this stage she had not consumed any alcohol. 7The plaintiff said she sat next to Ms Moore and some other delegates. She shared a bottle of red wine with Ms Moore, although another person at the table consumed one glass. In other words, other than for that one glass the balance of the bottle was shared equally with Ms Moore. She estimated she had two to three glasses of the red wine. 8In the course of the evening the plaintiff said she met a counsellor from Head Space with whom she was anxious to talk about her grandson. The counsellor's name was Peter and he was with a fellow counsellor, Anna. She said that she spoke to Peter and Anna for about an hour, drinking coffee and water during the conversation. She said that she left the dining room at about 11pm. 9I think it worth interrupting my narration of the plaintiff's version at this point to say that the events thus far were corroborated by Ms Moore and Ms Anna Beniuk. The evidence of these two women was not only patently honest but there was no evidence to contradict their assertions. I think I can comfortably conclude that until the plaintiff left the dining room at about 10.30pm she had consumed, as far as alcohol is concerned, in the order of two or three glasses of red wine. The real issue on her ultimate level of intoxication concerns the events after the dinner. 10Returning to the plaintiff's version, she said that she went back to her room where she had another shower and put on a summer dress. She said this was a particularly sad time for her as it was close to the anniversary of her daughter's death. She felt she could not sleep and so took up an invitation that had been issued to her by a Ms Louise Hakkenbrock to visit the room of a Constable Ben Walsh in order to "socialise and network". 11Before leaving her room the plaintiff said that she opened a bottle of red wine that was part of the minibar and consumed one glass from it. 12The plaintiff then went to Constable Walsh's room where she met up with Ms Hackkenbrock. The plaintiff knew Constable Walsh from previous conferences but their association went no further. She had never been to Constable Walsh's room before and was not familiar with its layout. It seems to have been of a larger nature than her room, comprising a kitchen, lounge area, upstairs bedroom and outside verandah. 13The plaintiff said that when she arrived at Constable Walsh's room she saw him and a lady friend on the floor of the lounge room. This was at about 11.15 to 11.30pm. She saw that Constable Walsh and a Ms Tamara Smedley were wrestling and doing handstands. She said she went over to them and showed them how to do a headstand, although her demonstration was restricted to preparation rather than executing the full manoeuvre. She said she was impeded by her long dress and she did no more than lift her legs off the ground. 14She then spoke to Ms Hackkenbrock who asked her to go upstairs to Constable Walsh's bedroom to "short sheet" his bed as a practical joke. They did this and then returned downstairs. Ms Hackkenbrock then poured her a glass of white wine from which she had "a sip or two". She was speaking to Ms Hackkenbrock about her deceased daughter Kelly. She became upset and went outside to the verandah. This was the first time she had seen the verandah. It was in darkness because the light was not working. There was some light from inside but, as I understood her evidence, not very much. She certainly could not discern the drop behind the wall that is evident in the photographs (Exhibit B). 15There were about six people on the verandah, some of them sitting on the wall. A space became available next to Constable Walsh and she occupied it. The hem of her garment became "hooked" onto her sandals. She bent down to release the dress but lost her balance as she sat up. Her arms were raised above her as she struggled to regain balance. In so doing she became entangled with Constable Walsh. They both fell over the wall. The plaintiff landed on her right shoulder. Constable Walsh landed on top of her. 16An ambulance was called and the plaintiff was taken to the Shoalhaven District Memorial Hospital where she remained for about two weeks. 17The plaintiff rejected the suggestion that she brought a bottle of wine with her to Constable Walsh's room. She said she had no more to drink in his room than the one or two sips of white wine. She said she was not intoxicated when she fell over. 18I note here that the plaintiff accepted she was a regular drinker of alcohol, usually consuming about three bottles of wine a week but sometimes more if there were social occasions involved. 19It may be that the plaintiff under-estimated her degree of regular alcohol intake. In the hospital notes, Exhibit A, under the heading 'Acute Pain Service' on 7 November 2008 the following passage appears: "Discussed nicotine and ETOH intake admits to 10-15 cigarettes daily + 2 large wines daily. Family present at time of visit and state she does drink more." 20On 10 November 2008 the Drug and Alcohol Service spoke to the plaintiff. This passage can be found in the notes in Exhibit A: "Ward round: Admits to regularly 2 large glasses wine daily - more on weekends. Given safe level drinking education and contact details for followup if she requires." 21The plaintiff's evidence about the events up to her leaving the dining room were corroborated by Ms Moore and Ms Beniuk. As I have said I accept that evidence. I have great difficulty in accepting the plaintiff's evidence concerning the remainder of the evening. This is for the following reasons: (a)Although I entirely accept the plaintiff's evidence that she would have been greatly saddened by the recollection of her daughter's death it is also to be borne in mind that she attended Constable Walsh's room to network and socialise and she did in fact do so. Not only did she shortsheet his bed but also, even accepting the limits of her evidence, took some part in demonstrating a headstand. This is odd conduct for a plaintiff who presented as otherwise conservative and respectable. (b)Under cross-examination the plaintiff said she arrived at Constable Walsh's room at about 11.30pm and the incident occurred at about midnight. The interval of about half an hour is generally consistent with the plaintiff's version of events in the Constable's room including a limited consumption of alcohol. It is however entirely inconsistent with the ambulance report. This document reveals that the emergency call was made at 1.46am and the estimated time of the incident was put at 1.40am. Accepting the ambulance may have even arrived about an hour after the fall, the plaintiff was still in Constable Walsh's room for considerably longer than she asserted. I do not accept the plaintiff had no more than a couple of sips of white wine over the longer period, in particular having regard to her activities in the room and her purpose in being there. (c)Histories given to medical personnel must be treated with considerable caution (as stated by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2)). However, I think the note made by the ambulance officer is important and considerably more consistent with the general nature of events in Constable Walsh's room. The note is: "P/T states she has drank 1-2 Bottles. Red wine." While it is arguable, as submitted by the plaintiff, that her admitted consumption of three to four glasses of red wine, could have totalled more than a bottle and therefore fallen within the range given to the ambulance officer, I suspect the plaintiff's consumption was closer to two bottles than one. (d)In addition to the ambulance report the balance of the hospital clinical notes also refer to her ingestion of alcohol, although caution must be exercised because of the recognition that the notes may simply reflect a repetition of the ambulance notes. Unfortunately no alcohol testing was done on the plaintiff's blood at the hospital. (e)The Rehabilitation Registrar, on 13 November 2008, wrote in the clinical notes: "Thank you for referral 49 year old lady admitted 7/11/08 Attended conference - intoxicated. Fell backwards from a wall - hit head and loss of consciousness? (pt unsure)" (f)The history given to Dr Barrett is also noteworthy. At page 2 of Exhibit 1 the following is recorded: "That evening she had a glass of wine before dinner, shared a bottle of wine with a friend and then had several glasses of wine after dinner while socialising with friends in one of her friend's rooms." (g)The several glasses in the history to Dr Barrett are far more consistent with the longer time spent in Constable Walsh's room. It is also consistent with the plaintiff taking the bottle of wine she had opened in her room with her. Constable Walsh said she was drinking red wine and he saw her with a bottle of red wine. (h)I will note here that I do not find the history apparently given to Dr Samuell of any assistance. It is vague and highlights the warnings given by Basten JA. This is exemplified by his obviously erroneous recording that the plaintiff told him she had not suffered from a pneumothorax injury. (i)I do not accept the evidence of Ms Hakkenbrock. This is not based on any lack of credit on her behalf but rather on an absence of reliability of her evidence after four years. She said she arrived at Constable Walsh's room together with the plaintiff. The plaintiff said Ms Hakkenbrock was already there when she arrived. She had no memory of pouring the plaintiff a glass of white wine. She had no memory of the plaintiff even demonstrating a headstand. Although very vague on times her overall description of the events in Constable Walsh's room did not allow for the longer period that the plaintiff was present in the room. (j)Constable Walsh's evidence but only to the extent that I have found it reliable. 22Constable Walsh freely conceded that he had been "drunk". He had consumed six cans of a bourbon mixer, two bourbon and cokes and a small amount of wine at a tasting between about 6pm and the plaintiff's fall. Despite this he did recall the plaintiff. He was clear that she had performed a full headstand, although his evidence about where she tucked her dress contradicted his statement (Exhibit 6) but I do not think to any degree detrimental to his overall evidence. 23Constable Walsh recalled the plaintiff having a bottle of red wine in her hand and drinking from a glass of red wine. He could not say that he had seen her drinking any more than one sip. He admitted that he had been wrestling on the floor with Ms Smedley and that his capacity to assess the plaintiff's sobriety would have been affected by his own intoxication. 24Constable Walsh said that he was sitting on the wall on the verandah. The plaintiff sat next to him and immediately put her arm on his chest. They both lost balance and fell backwards. He did not know what the plaintiff had done before putting her arm across his chest so that even though perhaps inconsistent with his evidence, both in the witness box and in his statement, I do not think I could exclude the possibility that before the plaintiff's arm went up over his chest she had been trying to disentangle the hem of her dress from her shoe. I note here that the outfit depicted in Dr Adams' report (Exhibit C) is different to the outfit described by the plaintiff. 25Constable Walsh, when asked to analyse his assessment that the plaintiff was intoxicated, said it was based on seeing her drinking alcohol, her doing a headstand and being told, a little later, that the plaintiff was upset by the anniversary of her daughter's death. The Constable's statement (Exhibit 6) is much stronger in his assessment of the plaintiff's lack of sobriety, although he does not mention any of the indicators referred to in the expert reports from Professors White (Exhibit 4). 26Although in a sense out of order I think it convenient to deal at this stage with Section 48 of the CLA. This section provides the following definition of intoxication: "A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken)." 27Having regard to my above findings about the events in Constable Walsh's room I am satisfied, and find that the plaintiff was intoxicated in that she was under the influence of alcohol when she had her fall. I will return below to the application of Section 50. After the fall 28The plaintiff remained in hospital for about two weeks. She was off work for a period of time but returned in a graded process. Part of the reason she has not worked longer than she has, is that she took over the care of her mother for which she received a government carer's support allowance. The plaintiff frankly said that the care for her mother is the reason she has not worked longer hours. Equally frankly she said that she could work fulltime if she had the opportunity. She does, however, have some pain on excessive use of a keyboard. She also has difficulty with a number of domestic chores in particular heavier duties such as vacuuming, moving furniture, making beds and hanging out washing. 29The plaintiff takes Panadeine Forte and Valium on a regular basis and also an antidepressant. She feels that her physical situation has led to her depression. 30The plaintiff demonstrated in court the effect of her shoulder injury. Suffice to say her right shoulder is significantly lower than her left shoulder. Generally speaking the plaintiff did not exaggerate the effect of her injuries and I accept her descriptions of what she can and cannot do. 31I should add, at this stage, that my general impression of the plaintiff was that she was an honest person. At first sight this is inconsistent with my conclusion about her level of intoxication on the night of her fall. It is, in fact, only her description of what occurred after she left the dining room that I have not accepted. This is, of course, the crucial period but for the reasons I have given above I am simply not prepared to accept her evidence about this period. The plaintiff agreed in cross-examination that she knew that if her evidence about her intoxication was not accepted she might fail in the proceedings. I do not think I can find that the plaintiff's evidence was deliberately dishonest. I suspect that her level of intoxication has clouded her memory and she has, through the haze of pain and alcohol, rationalised the events of the evening so as to excuse her from fault. 32There is not a great deal of dispute about the plaintiff's physical condition. Dr Barrett, an orthopaedic surgeon retained by the defendant, recognises the severity of her injuries and the consistency with her complaints and disabilities. He says "the injury has significantly impacted upon her activities of daily life". He says that her decision not to have surgery is "reasonable". He says that she is fit to work as a teacher's aide but he places a limitation on lifting and the use of her right arm above chest height. I think Dr Barrett's view is generally consistent with that of Dr Jansen, an upper limb and trauma surgeon. 33Dr Davis, an occupational physician, is of a similar view to the orthopaedic surgeons, although his suggestion for care and assistance significantly exceeds the four hours suggested by Dr Barrett. 34As far as the plaintiff's depression is concerned I prefer the report of Dr Dragutinovich to that of Dr Samuell. I have already expressed some concern about Dr Samuell's history taking. He says that "there are no adverse early life events or difficulties". I would find it very difficult to accept that if asked the plaintiff did not tell him about the death of her daughter. There is an air of advocacy about Dr Samuell's report. For example, he refers to "primitive type tattoos" on the plaintiff's wrists. He says that she "claims a psychological injury although she says that she has not been treated by a psychiatrist or a psychologist". The evidence before me was that she had in fact seen a psychologist although did not find the treatment helpful. 35I do not think the plaintiff's depression is of great significance. It is reasonably a product of her physical injury and plays a part in the assessment of non-economic loss but not to any great degree. Liability 36The first step in considering the question of liability is whether or not the defendant had failed in its duty of care owed to the plaintiff as an occupier. This question does not take into account, at least at this stage, the issue of the plaintiff's intoxication. 37The complaint made by the plaintiff was that the absence of lighting and a railing on the wall rendered the wall, as a place on which a person might reasonably sit, as a source of danger. The duty of care owed by an occupier to a legal entrant was plainly set out in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned" . This formulation is consistent with Section 5B of the CLA. Even if some distinction could be discerned from the section I am satisfied that the risk of harm to the plaintiff was foreseeable and the risk was not insignificant. I am further satisfied that a reasonable person in the defendant's position would have taken precautions against the risk. 38The defendant ultimately did not make any submissions to resist a finding of breach of its duty as an occupier. I am satisfied that the absence of lighting and a rail on the wall constituted a foreseeable risk which was not insignificant and which a reasonable person in the defendant's position would have guarded against. Constable Walsh's evidence was that the light socket on the verandah did not have a bulb in it. A simple precaution of inserting a bulb would have cast light on the void behind the wall and warned the plaintiff of the drop behind the wall. 39Subject to my consideration of Section 50, I am satisfied that the plaintiff's injury would not have occurred but for the breach of duty outlined above. I am therefore satisfied that the plaintiff, upon whom the onus at this stage squarely lies (Section 5E), has established the issue of causation in accordance with Section 5D. 40Each side relied on an expert report (Exhibits C and 5 respectively). I join with learned counsel for each party in their view that I would not be greatly assisted by these reports. Dr Cook's report contains photographs of the wall as it now is having had a safety screen inserted. Dr Cook's observations about the lighting do not take into account whether or not the curtains were partially drawn or the people sitting on the wall, no doubt obstructing the dispersion of light to the void beyond the wall. The responsible attitude of counsel for the defendant in making no submissions on primary liability is an indication of the clarity of the breach of the duty of care owed by the defendant to provide lawful occupants of its premises with a safe area in which to gather and socialise. 41Turning now to the issue of intoxication, I have already found that the plaintiff was intoxicated within the definition set out in Section 48. Section 50 is in the following terms: "50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced." 42My initial reading of Section 50(1) was that the question of whether the plaintiff's "capacity to exercise reasonable care and skill was impaired" should be assessed on a general basis. Having regard to my finding of the plaintiff's intoxication I would have had little difficulty in finding that she was impaired as required. However, this interpretation would clearly be wrong. In Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358 Allsop P said this in paragraph 36: "The requirement of s 50(1) was not established. The "extent" of the intoxication relevant for such a finding will depend on the circumstances and the subject or subjects in respect of which the reasonable care and skill may be impaired. Operating machinery, driving a car or flying a plane may be tasks where very little alcohol would be required for the person's capacity to exercise skill and care to be impaired (adequately satisfied by six beers and two bourbons). Here, the care and skill was walking over open ground to get to a destination. There was no reason for him, in the dark, to suspect such a danger as befell him." 43In Dries the task being undertaken by the plaintiff was simply walking over open ground. In the present case the task is even simpler. It is no more than the plaintiff sitting down, or having sat down, straightening up after bending to release her dress from her shoes. 44The onus is on the defendant to establish the application of Section 50(1). The defendant relies on the matters I have outlined above in regard to the plaintiff's intoxication together with an expert report from Professor White (Exhibit 4). 45Constable Walsh's evidence, as I have said above, is generally acceptable but it is limited by his concession that his observations would have been influenced by his own intoxication. There are also some inconsistencies with the evidence of other witnesses (for example the degree of the plaintiff's intoxication after dinner) and his lack of knowledge of some matters (for example, whether the plaintiff bent down to untangle her dress immediately before the fall). 46Professor White's report naturally suffers from the unreliability of the material that he was presented with, together with the speculative nature of the comments of people such as Constable Walsh which were either not borne out in oral evidence or subject to their own internal unreliability (for example derived from Constable Walsh's own intoxication). In addition, Professor White had reference to the statement of a Ms Byrne who was not called to give evidence. 47Professor White's ultimate conclusion is that "it is more likely that the loss of balance she described was due principally to alcohol intoxication". I do not think I can reach this conclusion on the evidence before me. I think the following matters arising from Professor White's report highlight my difficulty: (a)Included in his 'Background' Professor White refers to Constable Walsh's statement that the plaintiff was affected by alcohol after dinner. This is entirely inconsistent with the evidence of Ms Moore and Ms Beniuk, both of whom I found to be very reliable witnesses. (b)Professor White refers to the tolerance created by regular alcohol consumption. He recognises that the plaintiff was a regular drinker but I wonder if he was aware of the extent of her regular drinking. (c)Professor White refers to the history given to Dr Samuell, which I think is unreliable, and then himself comments on the unreliability of not knowing the size of the drinks that the plaintiff was taking. (d)Professor White refers to one version of events being that the plaintiff tried to put one or both of her arms around Constable Walsh. He continues: "It seems unlikely that this would have occurred had she not been intoxicated". While I tend to agree that the plaintiff may well have been influenced by what she had had to drink in the friendly gesture, I think it is something of a quantum leap to suggest that it is unlikely that she would not have done so had she not been intoxicated. (e)Professor White then goes on to say that sitting on the wall above a significant drop is itself an indication of the plaintiff's intoxication. The difficulty with this observation is that the plaintiff, by reason of the poor lighting, would not have been aware of the drop behind the wall. She would also have been reinforced in her assumption of the safety of the wall by the other people already sitting on it. 48What I do find useful in Professor White's report is his statement that "the main signs of intoxication are slurred speech, staggering gait and glazed eyes". Not a single witness, including Constable Walsh, suggests observing any of these conditions affecting the plaintiff. 49Bearing in mind that my decision is whether the plaintiff's capacity to sit down, or perhaps straighten up, was impaired by reason of her intoxication I do not think that I can go that far. Had any of the main signs of intoxication referred to by Professor White been present then perhaps the defendant would have proved its case. Ultimately it is to be borne in mind that the only witness to the final events was Constable Walsh and, as I have said above, his observations suffer from the effects of his own intoxication. 50By arrangement between the parties I was provided with a supplementary report of Professor White dated 8 November 2012. He is responding to the plaintiff's expert, Professor Christie. I do not think this report takes the matter much further. It has the same dependence on variables which ultimately are different to my findings. Professor Christie's reports also do not assist for the same reasons. The range of possibilities considered by Professor Christie include variables as to timing, amount of consumption, alcohol content and independent observations all of which were either unknown in my final analysis or not capable of fine calculation. 51Consequently I cannot find that the plaintiff is not entitled to damages by reason of Sections 50(1) and (2). To be quite clear, my findings are firstly that the requisite degree of impairment has not been established and secondly that the accident is likely to have occurred even if the plaintiff had not been intoxicated. 52My finding of intoxication, however, triggers the application of Section 50(3) to the effect that there is a presumption of contributory negligence that is to be assessed at a contribution rate of 25% or more. This presumption does not arise if the court is satisfied that the plaintiff's intoxication "did not contribute in any way to the cause of the ... injury or damage". I am not so satisfied. In my view the plaintiff's condition did contribute because had she not been intoxicated she may well have been able to better control her movements in sitting down or getting up and been able to recover from the loss of balance. 53The defendant submitted that if I assessed contributory negligence it should be at 50%. The plaintiff submitted that I should not exceed the mandatory 25%. One of the difficulties that I face is that having not accepted the plaintiff's evidence about the events after she arrived in Constable Walsh's room, and because of the deficiencies in the balance of the evidence, I am left with little basis upon which to establish exactly how intoxicated the plaintiff was. I have not been able to find the necessary level of intoxication to trigger Section 50(1); however, I do think the plaintiff was significantly more intoxicated than she admits. The assessment of contributory negligence is always difficult but in my view is more difficult where there is uncertainty of the type to which I have just referred. I also need to take into account that the assessment of the plaintiff's negligence is by way of contribution to the cause of her injury. This brings into play the overall cause of her injury, namely the hidden drop behind the wall and the absence of a railing or other barrier. Accepting there is a degree of speculation in my assessment I think that 40% is a fair conclusion arising from the necessary matters to be considered. Damages 54The plaintiff submitted that non-economic loss should be assessed at 30% of a most extreme case. The defendant suggested 25%. Although the monetary product of these percentages is very different, the percentages themselves display only a 5% difference. This is the extent of the difference referred to by Basten JA in Clifton & Ors v Lewis [2012] NSWCA 229 at paragraph 56. I could not say that either submission is wrong but simply express my view that the two submissions probably represent the appropriate range. I have decided to assess damages closer to the plaintiff's submission at 28% principally because of the dramatic effect the injury has had on the appearance of the plaintiff's shoulders. This is a deformity with which the plaintiff will have to live for the remainder of her life together with the effects of the non-union of her fracture and the associated instability and pain. Pursuant to Section 16 of the CLA, 28% has a monetary equivalent of $75,000. 55In respect of past economic loss, the plaintiff's claim is for $14,470.83 which represents the workers compensation payments she has received. The defendant said this figure was "mathematically agreed". I am not sure what this means but do note, in fairness to learned counsel for the defendant, that no submissions were made that I should not accept the figure. I do accept it. I also allow lost superannuation benefits at 11%. This is $1,591.79. 56For future economic loss the plaintiff submitted there should be a buffer in the order of $40,000 to $50,000, being approximately one year's wages. The defendant submitted that there should be no allowance for future economic loss, principally because the plaintiff said in her evidence that she could do fulltime work. 57The test that I need to apply is whether the plaintiff has an incapacity to work and, if so, whether that incapacity is likely to be productive of economic loss (Rabay v Bristow [2005] NSWCA 199). 58Dr Barrett, who I think has accurately summarised the plaintiff's condition said that the plaintiff is fit to continue work but with restrictions in regard to lifting and use of her arm above chest height. Bearing in mind the plaintiff is right handed, these restrictions indicate an interference with her capacity to work as a teacher's aide; however, I do not think that they are likely to be productive of economic loss to the extent submitted by the plaintiff. I do agree that there is a probability that over time the plaintiff will be at a disadvantage on the open labour market or in need of time off from work due to her injuries so that a buffer is an appropriate method of compensating. I think this buffer should be $15,000. 59In assessing future economic loss I have taken into account, for purposes of Section 13 of the CLA, that I am satisfied that but for the accident the plaintiff would have continued to work in a teacher's aide type role to age 65, that this would have been usually on a part-time basis and would have been subject to the usual vicissitudes of 15%. The buffer I have allowed takes into account the reduction for vicissitudes and also any allowance for the loss of superannuation benefits. 60Past out of pocket expenses were agreed at $24,838.28. In this instance the defendant's agreement was unconditional rather than being mathematical. 61The plaintiff's claim for future medical expenses was not precisely quantified but derived from the schedule in the Second Amended Statement of Particulars. The assessment generally relies on the opinion of Dr Barold whose report is part of Exhibit A. I think Dr Barold's assessment is generally of a "Rolls Royce" regime rather than an indication of reasonable needs. This applies both to his assessment of medical expenses and future care needs. I do, however, accept that the plaintiff will need to see a general practitioner fairly regularly and a specialist from time to time. I do not see why the plaintiff needs to see a general practitioner six times a year or a specialist twice a year. 62I also accept there is a need for some physiotherapy and continuing medication. The plaintiff is not likely to have surgery nor undergo psychiatric consultations. I do not see a need for occupational therapy, hydrotherapy or "future investigations". 63I think an allowance of $50 per week for all medical consultations and the cost of medications is appropriate. The plaintiff's life expectancy is 35 years, which produces a 5% multiplier of 875.6. At $50 per week the result is $43,780. 64The plaintiff's claim for past care is based on the reports of Dr Barold and of Ms Hildebrand. The plaintiff took the approach in evidence of simply saying that she had told Ms Hildebrand the truth about her needs and left the matter there. The assessment of these needs, however, includes not only the investigation of the reasonable requirements of the plaintiff but, as far as gratuitous care is concerned, evidence of the number of hours that have been performed by the person who has done the work. I do not think there is satisfactory evidence of this element. I note Ms Hildebrand herself says: "Whilst assistance required in the past was difficult to estimate exactly, the following was agreed as a reasonable summary of the support required, over time". She then sets out some figures based, as I read them, to a large degree, on her assumptions of the plaintiff's needs rather than the actual time for work that had been provided. 65The plaintiff's approach in submissions was to say that gratuitous domestic care should be averaged at 10 hours per week over the whole period from the date of accident to date. I have no difficulty with the general approach of 'averaging' but I do not think it appropriate in this case. The plaintiff's claim for gratuitous domestic assistance has been made under both Section 15 and Section 15B of the CLA. Each of those sections has a 'six hour/six month' threshold. It follows that by averaging the hours at 10 hours, there cannot be an inclusion of two lots of six hours. There is a further complication, which is that since February 2009 the plaintiff has been paying for four hours per week of commercial assistance. If this is deducted from the number of hours attributed to Section 15 damages then the six month threshold will not be met (the fall was in November 2008). 66When these matters were pointed out to plaintiff's counsel he amended his average to 12 hours per week. I do not think this solves the problem. Firstly I am concerned that figures should not be amended to circumvent the provisions of the CLA and secondly, without a delineation between the Section 15 and Section 15B damages it does not necessarily follow that Section 15 damages will remain available because, after the reduction of the four hours of commercial care, there would not necessarily be six hours remaining. 67In addition, I have difficulty in any event in accepting the views of Dr Barold and Ms Hildebrand. Based on the plaintiff's evidence, as well as the view of Dr Barrett, I think that the four hours of commercial care that she receives meets her requirements. I do accept that the plaintiff would have needed more than four hours per week of assistance in the weeks and months following the accident but I am not satisfied that this would have continued beyond February 2009, at least to a degree that would have allowed for a further six hours in addition to the four hours of paid assistance. Accordingly I think the claims under Section 15 and 15B must fail. 68The plaintiff is, however, entitled to be reimbursed for the four hours per week for which she has been paying, at $20 per hour, since February 2009. Giving her the benefit of this care having commenced at the beginning of February 2009, I allow $80 per week for 197 weeks which is $15,760. 69For the future I think the four hours per week should continue for 30 of the 35 years of the plaintiff's life expectancy. The plaintiff submitted the rate should be $35 per hour. The defendant submitted that $20 per hour was appropriate because this was what the plaintiff was now paying. $35 per hour per is less than the commercial rate suggested by Ms Hildebrand; however, there is also force in the defendant's argument. I think I should take into account both arguments on the basis that sooner or later the plaintiff is likely to lose the beneficial rates that she now pays. Accordingly I will assess future care at $27.50 per hour for 4 hours per week for 30 years. On the 5% tables this is $90,420. 70A summary of the damages I have awarded is as follows: Non-economic loss $75,000.00 Past economic loss $14,470.83 Past lost superannuation benefits $1,591.79 Future economic loss $15,000.00 Out of pocket expenses $24,838.28 Future medical expenses $43,780.00 Past commercial assistance $15,760.00 Future commercial assistance $90,420.00 Total $280,860.90 71The total of the damages must be reduced by 40% to reflect my findings on contributory negligence. This produces a figure of $168,516.54. 72I make the following orders: (1)Verdict for the plaintiff in the sum of $168,516.54. (2)The defendant is to pay the plaintiff's costs of the proceedings. 73I will hear the parties in respect of any special costs orders that are sought. ********** 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: 15 November 2012