District Court New South Wales Medium Neutral Citation: Hair v Munro [2013] NSWDC 25 Hearing dates: 26/3/2013 - 28/3/2013 Decision date: 28 March 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 90 Catchwords: Personal injury, identity of the occupier. Legislation Cited: Civil Liability Act 2002 Workers Compensation Act 1987 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Penrith City Council v Parkes [2004] NSWCA 201 Category: Principal judgment Parties: Margaret Hair (Plaintiff) Emma Munro (First Defendant) Jann Evelyn Dillon (Second Defendant) Harry James Dillon (Third Defendant) Representation: A Lidden SC and P Kintominas (Plaintiff) J Turnbull (First Defendant) N Chen (Second and Third Defendant) Brydens Law Office (Plaintiff) Holman Webb (First Defendant) Kennedys (Australasia) Pty Ltd (Second and Third Defendant) File Number(s): 2011/00039496 Publication restriction: No Judgment 1On 21 May 2010 the plaintiff fractured the patella of her left knee. She blames the defendants for this injury and seeks damages from them. The defendants deny they are liable to the plaintiff and also say that she was partly to blame for her injury. 2The action is governed by the Civil Liability Act 2002 (the "CLA"). Brief history 3The detail of the plaintiff's history is set out in Exhibit B. She had a varied career following different occupations. She was married from 1978 until about 2005. The marriage produced two sons. 4The plaintiff had a fall in 1990 when she slipped on a rock while crossing a causeway. She suffered a fracture to her left knee cap. It was a hairline fracture not requiring any surgery. She was in plaster for a month. She said that the injury healed quickly and she returned to full flexibility. There is no suggestion in the medical evidence that this injury is of any relevance to the injury which is at the core of this action. 5The plaintiff started working in property management in 2002. She eventually became a property manager at One Stop Property Shop. The role of a property manager is to manage tenancies on behalf of landlords. The role includes inspections before a tenant takes occupation and an inspection when the tenant moves out. From time to time during a tenancy there are periodic inspections. 6In 2008 the plaintiff commenced working as a property manager at Century 21 in Katoomba. One of the properties that came under her management was located at 97 Narrowneck Road, Katoomba. 7When the plaintiff began at Century 21 this property was already under a tenancy pursuant to a lease between the first defendant (Ms Munro as tenant) and the second and third defendants (Mr and Mrs Dillon as the landlords). At the commencement of the tenancy a Condition Report had been prepared by a Ms Joan Heath, the plaintiff's predecessor at Century 21. Ms Heath also performed some periodic inspections (Exhibit D). A similar inspection was carried out later by the plaintiff (Exhibit E). The accident 8On 26 April 2010 Ms Munro wrote to the plaintiff telling her that she was bringing the tenancy to a close and that she would be handing over vacant possession on 21 May 2010. She also told the plaintiff that removalists were booked for 14 May and requested the pruning of some trees that might impede the removalists' truck. 9Arrangements were then made for a final inspection on 21 May. 10The landlords were informed about the request for pruning and this was carried out by Mr Dillon. On 14 May the bulk of Ms Munro's possessions were removed, leaving only some boxes, most of them containing cleaning equipment. Ms Munro no longer resided at the premises. 11On 21 May 2010 the plaintiff and an assistant that she was training (Ms Ashley McAndrew) met Ms Munro on site. 12The plaintiff described the residence as a two storey wooden cottage. There is a photograph in Exhibit G. There is a porch or landing in front and entrance is then gained through a front door directly into the lounge. The plaintiff said that she conducted her inspection and was exiting through the front door when the accident occurred. She stepped onto a small mat which slipped out behind her and she fell forward onto her knees. She was in immediate pain. She could not get up. She sat down and soon fainted, no doubt as a result of the pain. 13Between falling to the ground and fainting the plaintiff was able to make some observations of the mat. She said it was light in colour, possibly brown and measured about 18 inches x 24 inches. She thought it was made of a cotton woven fabric. She said it did not have any rubber backing to stop it sliding but this answer was a product of an assumption derived from the fact that it had slid from under her. 14The plaintiff said that as she was leaving the premises Ms Munro was roughly alongside her. There was both a front door that opened inwards and a screen door that opened outwards. 15The condition report (Exhibits A and F) is a little hard to read but certainly refers to mats being present as belonging to the landlords. I read the entry as referring to three mats. I do not think this is in dispute. More important I think is the evidence of both Ms Munro and a previous tenant, a Ms Robyn Hannon, about the mats. 16The two former tenants said that the landlords provided three mats, which were normally located on the landing or at the base of a set of stairs leading up to the landing. These mats were a semi-circular black mat, a wire mat and a brown mat. It is only the latter mat that is relevant. Ms Hannon described this mat as being rectangular and about 30 inches x 18 inches in size. Ms Munro also said it was rectangular but her measurement was 45cm x 30cm. I think the evidence is overwhelming to the effect that the plaintiff, Ms Munro and the former tenant were talking about the same mat. The defendants did not dispute this conclusion. 17Ms Munro said that on 21 May 2010 she met the plaintiff and Ms McAndrew at the premises. The plaintiff came inside, carried out an inspection, went outside and then came back in at which stage the keys were handed over. Ms Munro said that she went out the door first and heard a noise behind her. She turned around to find the plaintiff on the floor and it was obvious to her that the mat had slid beneath the plaintiff. 18There are two differences in the versions of the accident given by the plaintiff and Ms Munro. These are: (a)The plaintiff said that she fell on the first time that she was exiting through the front door. Ms Munro said that the plaintiff had gone outside during the inspection process. Therefore her fall occurred on her second exit. (b)The plaintiff said that she was more or less alongside Ms Munro when going through the door. Ms Munro said that she went first and the plaintiff was behind her. 19In respect of the above discrepancies I prefer the evidence of Ms Munro. This is not because of any lack of credit on the plaintiff's part but rather because I think her memory was affected by the shock and pain she experienced in the fall. In addition, I found Ms Munro to be a very reliable and straightforward witness who also had the benefit of reading a previously made statement to refresh her memory. I note that counsel for the landlords called for, and read, this statement and no questions were asked to suggest any inconsistency with her oral evidence. 20I do not, however, think that the two inconsistencies that I have just dealt with materially affect the plaintiff's claim. A more important element of Ms Munro's evidence is what occurred in the days before 21 May. 21Ms Munro said that following removal of most of her goods on 14 May she returned to complete the removal and also to conduct a thorough cleaning of the house. She thought she had returned on two occasions but it might have been three. Whatever the case, on one of the occasions she found one of the landlords (Mr Harry Dillon) present on the premises doing some work and using some tools. He was endeavouring to fix a mould problem and also change some light bulbs. She noticed that the brown mat, which had always been outside, had been placed inside the house in front of the doorway. There is no dispute that the landing was made of wooden decking, rough in texture, and that inside the house there were polished pine floorboards. 22Ms Munro was happy to see the mat inside the premises because it meant that dirt would not be brought into the house following the thorough cleaning that she had conducted. The cleaning of the floor had been done with a cleaning agent left by the landlords. 23The inescapable conclusion flowing from Ms Munro's evidence is that Mr Dillon had brought the mat inside. She saw it again on each occasion that she returned to the premises and it remained there until the final inspection on 21 May. She had walked over the mat as she had gone in and out of the premises and had not experienced any difficulty. She had had a rug in the same position during her tenancy. She conceded, however, that her rug was significantly larger and therefore much less likely to slide underfoot. Ms Munro said she gave no thought to any danger that might have arisen from the presence of the mat on the polished floor. Rather, as I have said, she thought it was serving a good purpose. 24Ms Munro said that Mr Dillon was not present on 21 May. She said that the landlords had their own key and could access the property at will, although during her occupation they had never done so without her permission or invitation. 25Mr Dillon gave evidence. His version of the period before the final inspection was in absolute conflict to that of Ms Munro. He denied that he had entered the house after the removalists had taken Ms Munro's possessions. He denied that he had brought tools into the house or done any work in it. He said that he had last been in the house some five or six weeks earlier when investigating a possible mould problem. 26In relation to the mat, Mr Dillon said that on 21 May he was at home. He received a telephone call from his wife to say there had been an accident at the house. He went to Number 97 and found the plaintiff, Ms Munro and Ms McAndrew to be present. The plaintiff was in great distress. He ascertained that the plaintiff had fallen when a mat slipped from beneath her. He said he saw a mat lying beyond the front door. It was pushed away from the door. I think this description is consistent with the mat having been moved when the plaintiff stood on it. 27Mr Dillon said he did not go into the house and he did not pick up the mat. A day or two later, however, he did pick up the mat. He said it was rectangular, made of a synthetic material and had a rubber backing which was in good condition. He thought it was dark in colour, probably black but possibly brown. It measured about 90cm x 60cm. 28Mr Dillon said he disposed of the mat because "it had caused a spill, it was not the sort of thing you want around". 29Mr Dillon said he did not recognise the mat and did not know if it belonged to him or the tenant. 30I reject Mr Dillon's evidence where it is in conflict with that of Ms Munro. Not only did I find Ms Munro a very impressive witness but I simply did not believe Mr Dillon. I find that he did enter the house in the week or so before the final inspection, that he did bring tools into the house and do some work and, most significantly, that he took the mat that had previously been outdoors and placed it on the inside of the door. I am satisfied that Mr Dillon had good reason to enter the house. By this time the tenant had, effectively, vacated the premises, he had a key and he was no doubt anxious to carry out any minor repairs so as to speed up the re-letting process. 31Mr Chen, on behalf of Mr Dillon, said that a number of facts could be taken together to support a finding that his client's version was correct and Ms Munro was mistaken. For example, the visit of the handyman (Exhibit 2D2) suggested an earlier dealing with the mould and this might have been the time that Ms Munro thought Mr Dillon had been in the house. The difficulty with this approach is that both Mr Dillon and Ms Munro were adamant about their versions and neither allowed for the possibility of error. The choice for me is simply to accept one or the other. 32I find Mr Dillon's evidence that he did not look at the mat when he came to the house after hearing of the accident to be unbelievable. He knew there had been a fall. He knew the mat was involved. He had (on my findings) placed it there. One would have expected him to secure the mat straightaway or at least move it or look at it. 33I also think his reason for throwing out the mat lacks credibility. Had the mat been in a bad condition, perhaps in tatters, that might perhaps explain his actions. But he said that it was in good condition. He did not know to whom it belonged. There must have been a real possibility, in that circumstance, that it belonged to Ms Munro. He could have kept it to see if she wanted it returned. I understand that he did not want it to be on the floor because it might cause another injury. That does not mean it should be thrown out. 34I am satisfied that his action in throwing out the mat is consistent with his wish to avoid blame for the injury that had been caused by his placing of the mat on the floor and to prevent any conclusions being drawn from an inspection of the mat. This attitude would also explain him not looking at the mat on the day of the accident, in the presence of Ms Munro, the plaintiff and Ms McAndrew. It is consistent with a desire to dissociate himself from the mat knowing he might have been responsible for the accident. 35Mrs Dillon's evidence was as unsatisfactory as that of her husband, although for different reasons. The constant theme through her evidence was a failure to recall facts. She could not even recall there being mats at all. She did, however, provide some uncontroversial background. She and her husband purchased 95 Narrowneck Road, Katoomba some years ago. The property was subdivided and a timber cottage erected. It was completed in 2004. There was some difference in description of the property between her and her husband. She said there were three bedrooms upstairs. He said there were three bedrooms but only one was upstairs. 36Mrs Dillon said that Century 21 had been retained as the letting and management agent. Ms Munro was the third tenant. 37Both Mr and Mrs Dillon accepted that the floors in the house were polished and that they expected that the tenants would maintain their condition. After the fall 38The plaintiff was taken to Katoomba Hospital and then transferred to the Nepean Hospital because she needed surgery. Her fractured patella was joined with 'hardware' and she remained in hospital for about a week. 39The plaintiff then went home and was off work for about six weeks. She made a workers compensation claim and her medical expenses and wages were paid. Her sister stayed with her for two weeks to help her about the house. 40The plaintiff gradually returned to full time work but this was interrupted in October 2010 when she was diagnosed with breast cancer. She had two bouts of surgery in November 2010. In January 2011 the hardware was removed from her left knee. In March 2011 she underwent a mastectomy in respect of her breast cancer and about a month later had reconstructive surgery. 41The plaintiff returned to work in June 2011 with a new firm, Richardson & Wrench, in Blackheath. She was once again employed as a property manager. She now works a nine day fortnight. Her net weekly wage, including a car allowance, is about $700. She does not allege any current economic loss. 42The plaintiff said that she suffers pain in her knee when standing for long periods. On a bad day the pain could register about six or seven out of ten, with ten being extreme pain. She felt unsteady on stairs and was very cautious on rough ground. From time to time her left knee locked and she had had a number of near falls due to instability. There was also catching and clicking in her knee. 43The plaintiff said that she felt her knee condition was deteriorating. She had to give up bushwalking and daily early morning walks. I gather these actions were taken as much because of weakness in her knee as a fear of re-injury, especially if she had to walk in the dark or over uneven ground. 44The plaintiff had also given up a degree of gardening that she did and this was an activity that she missed. She also used to mow the lawn but now paid for this service. 45The plaintiff said that prior to her fall she had done all the housework. She still did so but spread the tasks over two days in order to lessen the strain. She generally managed quite well if she did so. The plaintiff said that if she had the available funds she would pay for help in the home. 46The plaintiff described emotional upset arising from her knee injury, which on my impression seemed to stem from a continuing fear of re-injury. 47The plaintiff said that she did not think she could cope with more duties than she currently undertook and she felt that she would not last, from a physical point of view, in her current employment for more than about another three years. 48There was practically no cross-examination of the plaintiff from any of the defendants about her pain and suffering or need for assistance. She was asked if she had been helped in the garden from time to time by friends before the fall. She agreed that she had. She rejected the suggestion that she had told Dr Abeya that she would like to do more work if it was available. Resolving liability 49I think the first point that needs examination is the identity of the occupier of the house on 21 May 2010. There can be no doubt that prior to 14 May Ms Munro was the occupier and Mr and Mrs Dillon were the landlords. As such they had differing standards of care. In my view, their respective status changed after 14 May and certainly by 21 May. On 14 May Ms Munro took out most of her possessions. She left only some boxes containing her cleaning equipment. She returned and did the cleaning. She also removed the boxes. By 21 May she was not living in the premises and had no possessions there. She was, pursuant to the lease, technically the tenant. This would normally indicate she was the occupier but that is not necessarily so if the facts dictate otherwise. I think they do. I think her occupation ceased when she had completed the cleaning and removed all of her goods. It is not clear on which particular day this occurred but it certainly had occurred by 21 May. 50In addition, by 21 May, Mr Dillon had entered the property (without first seeking the permission of Ms Munro), commenced to carry out repairs and, as he was entitled to, treat the premises as his own. In my view, by 21 May the landlords had become the occupiers and this was not a joint position with Ms Munro. 51In further support of the landlords' new status was the fact that Mr Dillon used his own key and moved the mat to inside the premises, no doubt to take the place of the rug that had previously been there and to assist in keeping the recently cleaned floor in good condition. 52It was put on behalf of the plaintiff that when Ms Munro returned to the premises and noticed the mat inside that she should have inspected it to check it was suitable for its new position. I disagree. Ms Munro knew the mat belonged to the landlord, she assumed on good grounds that Mr Dillon had moved the mat inside, and the new placing of the mat served a good purpose. The mat and its placement fell, from the point of view of Ms Munro, under the plain jurisdiction of Mr Dillon. 53I am therefore of the opinion that on 21 May, Ms Munro not being the occupier and having taken no part in moving the landlord's mat, had no duty to either inspect the mat or give any warning about it. 54The submission was put on behalf of the Dillons that an inference should be drawn against the plaintiff arising from the 'failure' to call Ms McAndrew to give evidence. There was nothing to suggest she was not available. I do not think there is any basis for the drawing of such an inference. The plaintiff's version of the accident was not challenged by the Dillons. There was nothing Ms McAndrew could add. 55I do not accept Mr Dillon's evidence that he did not know the ownership of the mat. He knew the mat's history. He knew it had always been an outside mat suffering the rigours of Blue Mountains weather. He knew it was at least four years old. He knew the floor not only had a polished surface but it had very recently been thoroughly cleaned, no doubt accentuating its polished surface. In my view the placing of a worn mat on such a surface would give immediate concerns about its safety. I find that Mr Dillon simply disregarded any aspect of the safety of the mat when placed inside. 56I also reject the relevance of there having been about 15 possible passages onto and over the mat since it had been placed inside. The prior use of an allegedly dangerous surface can be very relevant but only where that prior use has been extensive. Had the mat been in place for a number of years, perhaps even a number of months, with nothing untoward occurring, the situation might have been different. In the present case the mat was placed inside only days before the accident and there does not appear to have been more than a limited passage onto and over it. 57Turning now to Section 5B of the CLA. As a general statement I think that Mr Dillon, as occupier, had a duty "to take reasonable care to avoid a foreseeable risk of injury to the person concerned" (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. In the specific terms of Section 5B I am satisfied that a risk of an unsecured small mat sliding on a polished floor when a person walked on it was foreseeable. I do not think it needs Mr Adams' expert report, which I have generally found of little use, to conclude that to a person giving reasonable thought to the matter that it was foreseeable that there was a risk of slippage when force is applied to a mat placed on a polished floor. 58I am further satisfied that the risk was not insignificant and that a reasonable person in Mr Dillon's position would have taken precautions against the harm. These precautions would have included an inspection of the underside of the mat, perhaps the placing of a non-stick material beneath it or even, and with no effort at all, simply not using it (but leaving it outside) if it appeared to possibly pose a danger. As Mr Chen, counsel for the landlords, observed, its efficacy was little different whether it was placed inside or outside. The fact is, however, that Mr Dillon chose to remove it from its position on the rough deck and place it on the smoothed, polished floors of the inside of the house. 59In respect of Section 5B(2) I am satisfied that harm was a significant probability if precautions were not taken. Allowing a person to walk on a mat which might reasonably slide from beneath their feet was easily preventable and a person falling onto a hard surface would have been known to Mr Dillon as being susceptible to cause significant injury. The burden of taking precautions was not onerous. 60I do not think Section 5B(2)(d) is relevant. 61I am accordingly satisfied that Mr Dillon was in breach of the duty of care he owed to the plaintiff in the terms dictated by Section 5B. I do not make the same finding in respect of Mrs Dillon but it was agreed that any finding against Mr Dillon would result in a finding against "the landlords". 62I do not think there was any breach of duty of care on the part of Ms Munro. I have already found that she was not an occupier by 21 May. In addition, but consistent with this finding, she had not been responsible for the new placement of the mat and had no reason to doubt its safety having walked on it on a few occasions and not knowing that no precautions had been taken by Mr Dillon. I think the plaintiff's case against Ms Munro must fail. 63The next step in establishing liability against the landlords is proof of causation. As a general statement the onus is always on the plaintiff, as required by Section 5E. The ingredients of causation are stated in Section 5D. These have been interpreted as requiring the establishment of the "but for" test. The second and third defendants submitted that this test had been failed by the plaintiff. 64I think causation has been established. But for the negligent action of Mr Dillon in placing an unsecured, or slip resistant, mat on the polished floor surface the plaintiff would not have fallen. The placing of the mat was a necessary condition in the path of events that led to the plaintiff's fall. 65Turning now to contributory negligence, I do not think there is any. In the same way that Ms Munro had no reason to doubt that the mat had been safely placed, so too the plaintiff was entitled to proceed as if there was no danger. As she entered the door there is no reason not to have expected that an apparently normally placed mat was unsafe. It could never be the case that a person entering a house where there is a mat near the front door would be expected to bend down and inspect the underside of the mat to check on its safety. Damages 66There was very little dispute on the plaintiff's injuries. As already observed she was hardly cross-examined about them. 67As far as the medical reports were concerned I do not think a detailed analysis is required. I do, however, note the following: (a)Dr Coffey, an orthopaedic surgeon, was the plaintiff's treating specialist. "An open reduction internal fixation left patellar" was carried out on 21 May, the day of the fall. His post-operative instructions were: "Zimmer splint for two weeks, mobilisation requires crutches, weight bearing as tolerated. Progressive range of motion from then." (b)Dr Coffey saw the plaintiff on 11 June 2010. He found that her wound had healed well and thought she should commence a "gentle range of motion exercises". (c)On 6 July 2010 Dr Coffey found continuing good progress and suggested the plaintiff "upgrade her physiotherapy efforts aiming to improve range of motion and strength around the knee". (d)The last report from Dr Coffey is dated 15 November 2010. He was happy with the plaintiff's progress and recommended the removal of the wires he had inserted. He also suggested an arthroscopy. These procedures took place on 31 January 2011. There is no report from Dr Coffey following the further surgery. There is nothing to suggest the surgery was other than successful. (e)The plaintiff saw Dr Clarke, a psychiatrist, at the request of her solicitors on 12 July 2011. He found that the plaintiff had suffered a post-traumatic stress disorder which had become "a chronic phobic anxiety state". He thought she should have further psychiatric treatment for a period of between nine months and two years. He thought the plaintiff should be trialled on medication. (f)Dr Conrad is a general surgeon. He examined the plaintiff on 19 October 2011. He has written two reports. In his first he said that the fracture had "gone on to good union, however she has some pain and restriction of movement of the left knee, which is now permanent and stable. She needs conservative treatment and she may need physiotherapy from time to time". (g)Dr Conrad noted that the plaintiff was having difficulties with housework and he thought "she may need about six hours per week of Home Care assistance". (h)Dr Conrad wrote a supplementary report responding to a letter from the plaintiff's solicitors. Dr Conrad said that "there is a strong probability of osteoarthritis developing between the patellar and the rest of the knee joint and this would in my view, occur in a time frame of five to ten years". (i)Dr Conrad went on to say that if the osteoarthritis did develop then further surgery would be required which might be a patellectomy or an entire knee replacement. If it was the latter it might need to be repeated after about 10 years. 68On the defendants' side I note the following: (a)Dr Silva, an orthopaedic surgeon, (Exhibit 2D3) examined the plaintiff on 20 October 2011. He found no wasting in her left leg and a slight restriction of movement compared to the right knee. Dr Silva thought the plaintiff was fit for her pre-injury occupation and that "no further treatment in the future is indicated". (b)Dr Silva wrote a supplementary report on 12 June 2012 responding to the supplementary report of Dr Conrad. He disagreed with the likely possibility of osteoarthritis "because even the slight articular incongruity from the patellar fracture of 21/05/2010 has been corrected". He observed that the plaintiff had had a similar fracture in 1990 which did not lead to any complications. He thought the further surgery envisaged by Dr Conrad was unlikely. He also disagreed with Dr Conrad that the plaintiff could be compelled to retire early. (c)The plaintiff was referred to Dr Abeya, a psychiatrist (Exhibit 2D4). In his diagnosis Dr Abeya referred to the plaintiff's good work ethic "throughout her life". He did not think that she qualified for a diagnosis of post-traumatic stress disorder but did say "it is clear that she has fears of a phobic anxiety like nature due to the incident". He thought the most appropriate diagnosis was an adjustment disorder with depressive and anxiety symptoms. (d)Dr Abeya thought that the plaintiff should be referred to a psychologist for fortnightly or monthly sessions for about six months and that she might benefit from medication. He also recommended review by a psychiatrist. Dr Abeya confirmed my impression that the plaintiff had a good deal of anxiety about falling again and re-injuring her left knee. (e)The defendants also relied on a report from the plaintiff's general practitioner, Dr de Silva (Exhibit 2D5). Dr de Silva said the final diagnosis was a "fracture left patella". He continued: "Her prognosis is for good recovery with some mild residual pain with overuse". 69It can be seen from the above that the main medical controversy is whether or not the plaintiff is likely to suffer from osteoarthritis in the future, in turn necessitating further surgery. Neither side required any doctors for cross-examination. The plaintiff did say that she felt her knee was deteriorating which perhaps suggests the beginnings of arthritis but I do not think I could reach that conclusion without medical endorsement. I do not think that I can reach a firm conclusion about the plaintiff's prognosis in respect of osteoarthritis. The best I can do is take it into account as a possibility which might occur and might, in the future, lead to further treatment expense and perhaps have an impact on the plaintiff's capacity to work. 70The plaintiff claimed damages under the following heads: non-economic loss, past and future medical expenses, past and future economic loss and superannuation benefits, Fox v Wood damages and future paid domestic assistance. 71The plaintiff submitted that non-economic loss should be assessed at 33% of a most extreme case. The defendants suggested 20%. I think both percentages are outside the appropriate range or, perhaps at best, at the extremes of the range. The plaintiff has been through a good deal of pain, has had surgery and continues to suffer, both from a physical and psychological aspect, from the effects of the injury. She will probably do so for the rest of her life. This summary would, at first sight, suggest the correctness of the plaintiff's assessment of 33%. However, the assessment is one "of a most extreme case". On this basis, I think it would be wrong to assess the plaintiff as being, for example, a third as bad (or as injured) as, for example, a quadriplegic. In my view, the appropriate percentage is 28% of a most extreme case. Pursuant to Section 16 of the CLA the resulting figure is $75,000. 72Past out of pocket expenses were agreed at $25,298. 73The plaintiff claimed $50,000 for future medical expenses, based primarily on the need for future surgery to deal with the predicted osteoarthritis. The defendants, in line with their rejection of this prognosis, suggested $10,000. Based on my above conclusions about the osteoarthritis I think a buffer approach is necessary but one that would produce a figure significantly less than that sought by the plaintiff. This is to reflect the possibility rather than the probability of the future treatment. It also takes into account the unknown time in the future when such treatment might occur and the possibility of the plaintiff seeking psychological and psychiatric treatment. I think the allowance should be $20,000. 74Past wage loss was agreed at $7,752, as was the past loss of superannuation benefits of $852. 75Fox v Wood damages were also agreed, in the sum of $1,550. 76The plaintiff claimed, by way of a cushion, $125,000 for future wage loss. This large figure was based on the plaintiff having to retire from work in about three years and on the assumption that she would have worked well beyond the normal retirement age of 65. The defendants, relying on Dr Silva's opinion about the plaintiff's work capacity, said that future economic loss should be assessed at no more than $10,000 and perhaps even at zero. 77It is first of all necessary to make some findings for the purposes of Section 13 of the CLA. In my view, but for the accident, the plaintiff would have continued to work to at least age 65 and perhaps a little longer. I initially thought that there should be an increase in the normal vicissitudes because of the plaintiff's history of breast cancer. On further consideration I do not think this would be fair in the absence of medical evidence to support the extra risk. Accordingly, I think that the plaintiff's future economic loss should be reduced by the normal vicissitudes of 15%. 78I think the plaintiff's excellent work ethic, as described by Dr Abeya, will continue in the future and that she is unlikely to stop working in three years. Even with the impact of osteoarthritis I think it probable that if her capacity to work is impacted it is not likely to result in a change from almost fulltime work to no work at all. I would envisage the plaintiff gradually reducing her hours in accordance with her diminishing capacity. 79The plaintiff is not losing any income at present so that the only possible approach is to award her a buffer. This is not inconsistent with Section 13 as has been often stated in the New South Wales Court of Appeal (see for example Penrith City Council v Parkes [2004] NSWCA 201). 80The plaintiff's wage loss, if any, is not likely to start for another three years so that there should be an element of deferral in the assessment. In my view a figure of $30,000, including the loss of superannuation benefits, is appropriate. 81The plaintiff's claim for future paid assistance is for three hours per week at $40 per hour for the remaining 28 years of her life expectancy. This claim amounts to $95,592. The defendants said the award should be $10,000 based on some continuing lawn mowing plus a small allowance for other tasks. 82The plaintiff's evidence was that she has had the lawn cut by a contractor since her fall. She also said that a friend helped her in the garden. I agree with the defendants' submission that even if this friend continued to help her it would be classed as gratuitous assistance and would not exceed the thresholds set by Section 15 of the CLA. 83The plaintiff's evidence was that she managed the housework currently by carrying it out over an extended period, after which she might feel some discomfort. She did not say she was unable to do any of the work. On the other hand I take into account that she does have restrictions in actions such as squatting and that if osteoarthritis does set in she will be yet more restricted. As far as lawn mowing is concerned I think a time would have come when she would have needed this assistance in any event. I also think that she would have reached a certain age when she would not have been able to do the housework in her relatively large home without assistance. 84I think the plaintiff should be awarded two hours per week of assistance at $40 per hour for 20 years. The defendants did not dispute the rate. The resulting calculation on the 5% tables, is as follows: 2 x 40 x 666.4 = $53,312. 85A summary of the damages I have awarded is as follows: Non-economic loss $75,000.00 Past out of pocket expenses $25,298.00 Future out of pocket expenses $20,000.00 Past economic loss $7,752.00 Past lost superannuation benefits $852.00 Fox v Wood damages $1,550.00 Future economic loss buffer including superannuation benefits $30,000.00 Future care $53,312.00 Total $213,764.00 86The plaintiff is entitled to a verdict against the second and third defendants for $213,764. 87The first defendant is entitled to a verdict against the plaintiff. 88The result of my findings is that both cross-claims should be dismissed. 89I note that both defendants abandoned any submission that the plaintiff's damages should be reduced in accordance with Section 151Z of the Workers Compensation Act 1987. 90I make the following orders: (a)Judgment for the plaintiff against the second and third defendants for $213,764. (b)Judgment for the first defendant against the plaintiff. (c)Both cross-claims dismissed. 91I will hear the parties on costs including any special orders to which they might be entitled. Final orders (after submissions on costs) 1Judgment for the plaintiff against the second and third defendants for $213,764. 2Judgment for the first defendant against the plaintiff. 3Both cross-claims dismissed. 4The second and third defendants are to pay the plaintiff's costs of the proceedings. 5The plaintiff is to pay the first defendant's costs of the proceedings, those costs to be assessed on an indemnity basis from 13 December 2011. 6The second and third defendants to indemnify the plaintiff in respect of any costs payable by the plaintiff to the first defendant. 7No order as to costs on both cross claims. 8Stay of the judgment and all costs orders for 28 days. 9Liberty to all parties to apply in respect of the continuation of a stay on seven days notice. 10Exhibits to be retained pending further order. ********** 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: 02 April 2013