District Court New South Wales Medium Neutral Citation: Alvarenga v Mirvac Real Estate Pty Ltd & Anor [2013] NSWDC 26 Hearing dates: 18/03/2013 - 21/03/2013 Decision date: 28 March 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraphs 127-130 Catchwords: Personal injury, cleaning system, delegation of duty to cleaner. Legislation Cited: Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946. Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 Category: Principal judgment Parties: Carolina Alvarenga (Plaintiff) Mirvac Real Estate Pty Ltd (First Defendant) Glad Retail Cleaning Pty Ltd (Second Defendant) Representation: G J Parker SC and J de Greenlaw (Plaintiff) W S Reynolds (First Defendant) D Priestley (Second Defendant) Gerard Malouf & Partners (Plaintiff) Thompson Cooper Lawyers (First Defendant) McCabes Lawyers Pty Ltd (Second Defendant) File Number(s): 2010/00353197 Publication restriction: No Judgment 1The plaintiff was born in 1972. She is a married lady with three children. In June 2007 she began to work for Woolworths in the Chester Square Shopping Centre as a General Services Assistant. 2On 25 July 2008, at about 7.20am, she slipped on a travelator in the shopping centre and was injured. She blames the defendants for her injuries and by this action she seeks damages from them. 3The first defendant was the manager of the shopping centre. The second defendant provided cleaning services. 4The action is governed by the Civil Liability Act 2002 (the "CLA"). The plaintiff claims damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and past and future domestic assistance. 5The defendants deny liability to the plaintiff but if they are liable, they seek indemnity and contribution from each other and also allege contributory negligence against the plaintiff. The defendants particularly rely on Sections 5B, 5D, 5H and 5R of the CLA in their Defences and allegations of contributory negligence. The accident and liability 6The accident is plainly visible on CCTV footage (Exhibit A). The approach taken by the defendants was that the plaintiff walked across an area that had recently been mopped, thereby attaching moisture to the bottom of her shoes and then, as a result of the contact between the metal surface of the travelator and her shoes, she slipped. It was put to the plaintiff that the cleaner was obviously visible as well as the area in which he was mopping. This included the white rubber bubble looking surface which can be seen in the first photograph in Exhibit 1D1. 7On first impression the plaintiff seemed evasive about the manner of her approach and what she saw or could have seen. As questioning progressed however, both on this issue and generally, I came to the view that the plaintiff had difficulty understanding the questions and even notions such as "I put to you.." or "I suggest..." The plaintiff was particularly unsophisticated. 8A close viewing of the CCTV footage indicates that the plaintiff seems to have attempted to step over the rubber section although her success was limited by her short stride. The result is that although one foot did come down on the bubble section, the contact was small. The CCTV also reveals that the slip occurs almost immediately after the plaintiff stepped on the travelator and that she was, just as she slipped, trying to take hold of the handrail on the right hand side. 9The attempted use of the handrail seems to have been missed by the plaintiff in written submissions. The submissions refer to "the plaintiff's failure to use it..." (paragraph 42). 10I note here that to avoid confusion, any reference to the travelator refers to the moving parts. It does not include the metal strip in front of it. 11I think my interpretation of the plaintiff's movements is consistent with the cleaner's written statement that the plaintiff "carefully walked on the wet floor." (Exhibit B, page 1) It follows that the floor was wet and that the plaintiff, at least, appreciated the possibility that it was wet. I also accept, from the cleaner's statement, that the plaintiff said "Oh, its wet" as she passed the cleaner. This is despite her denying making the comment. I think the passage of time, and perhaps a degree of defensive attitude, were behind her denial. 12It is to be recalled that part of the defendants' case is that the plaintiff, by ignoring the cleaner mopping this section, walked through it and wet the soles of her shoes leading her to slip on the travelator. I do not think she ignored the cleaner. She spoke to him and she walked carefully. She was under instructions from her manager to go to another store to fetch some bakery ingredients. She was no doubt anxious to fulfil her mission and needed to use the travelator to get to the car park. 13I think it apparent that the plaintiff picked up moisture on her shoes on her way to the travelator and this resulted in her slipping when her wet shoes came into contact with the moving metal surface of the travelator pallets. 14I am also satisfied that the there was significant amount of water in the plaintiff's path. I derive this from the evidence of Mrs Priscilla Willis who was the Bakery Manager at Woolworths on the day of the plaintiff's fall. It was Ms Willis who had despatched the plaintiff to another store to obtain the missing ingredients for a baking product. 15Mrs Willis said that she was called to the scene after the plaintiff had fallen. She went down the same travelator and "almost slipped going down". In her statement (Exhibit G) she says: "The surface of the travelator was wet". In oral evidence she made it clear that it was the metal strip before the travelator that was wet rather than the moving parts. 16At least 10 minutes passed between the plaintiff and Mrs Willis going down the travelator suggesting enough water remained for this time, not having dried and still being in sufficient quantity, to produce a slippery surface. 17The second defendant called the cleaner, Mr Dahal. He was a straightforward witness doing his best to recollect matters accurately but no doubt forgetting some detail after the passage of almost five years. 18He did recall the plaintiff approaching from Woolworths and walking in front of him. The floor was then slippery, at least in the bubble area where he had mopped. Mr Dahal said the plaintiff was the first person to use the travelator that day. He did not give her any warning, nor did he suggest she stop to await his cleaning to finish. There was only one warning sign in use, as can be seen in the CCTV. Other signs were available but had not been deployed and certainly not on the plaintiff's path to the travelator. 19He said the cleaning of the travelators was usually his first task because it needed to be done before shoppers arrived. It was his responsibility to turn the travelator on after it had been stopped overnight. He said the bubble area was often dirty because it was white and trolleys had passed over it. The steel strip was not cleaned everyday because the dirt was not apparent. It was cleaned weekly or perhaps even monthly. Presumably the dirt from trolley wheels also went onto the steel section but was ignored because it was not aesthetically offensive. It was necessary for there to be a coffee spill, or like event, to generate the steel strip being cleaned. 20This attitude is not relevant to the plaintiff's fall but is indicative of the general approach taken to cleaning by the defendants. Mr Dahal could not recall if the steel section had been mopped on the day of the plaintiff's fall. Whatever the case I am satisfied that water had been allowed to go on to the steel section because it is the most likely place for the water to have been encountered by both the plaintiff and Mrs Willis. 21The pallets of the travelator were only cleaned about once every 6 months. Mr Dahal was sure they had not been cleaned the night before the plaintiff's fall. 22The second defendant called Mr Shambanna to give oral evidence. He was also a straightforward witness, although there was no attack on his credibility. He dealt a fatal blow to the first cross-claim (Manager v Cleaner) to the extent that it was based on the terms of the contract between the parties. No submissions were made to the contrary. 23Both cross-claims were thus left to be decided on the basis of the defendants' roles, if applicable, as joint tortfeasors under Section 5 of Law Reform (Miscellaneous Provisions) Act 1946. 24Another important element of Mr Shambanna's evidence was he said that although the method of cleaning was left to the cleaner the overall timing and structure of the cleaning activities "was completely directed by Carmen, onsite, who was the centre manager...." (T 225.17). He said that the manager did not wish the centre to be cleaned outside of opening hours. He referred to "house rules" set by the manager to this effect. 25I note that the second defendant was also contracted to supply security personnel (Exhibit 1D4) and can see no reason why the cleaner could not have attended to the travelator area before it was switched on. Mr Dahal even said that at certain times the same person carried out roles of cleaner and security officer. 26The plaintiff relied on an expert report from Mr Beckett. He was cross-examined and frustrated the attempts of the two cross-examiners to draw a concession from him that his testing of the surface of the travelator was defective. 27The main difficulty with his report, said the defendants, was that the assumptions upon which he relied were not made out (Exhibit B, page 76). I agree that the assumptions, in specific terms, were not established. For example, it was not unknown to the plaintiff that the cleaner was wet mopping the area. She saw him doing so as she approached. I do however think enough of the background facts have been established to give the testing a proper foundation. 28The defendants tendered the report of Mr Donohue (Exhibit 1D1). Despite this initial reliance counsel for the first defendant ultimately described the report as "useless" and a "waste of money."(T. 321.47). I would not adopt that description but the report does seem overly concerned with tribology and the need for Woolworths to be vigilant in its monitoring of its employees shoes. 29Mr Beckett was of the view that the moving surface of the travelator was slippery when wet. He established this using a Mitutoyo Surface Roughness Instrument, which apparently measures the micro roughness of a particular surface. On the basis of a paper by "Shaw and Harris" (Exhibit K) Mr Beckett said his results placed the moving surface of the travelator (the pallets) in the slippery when wet category. Mr Beckett was closely cross-examined on exactly what the Shaw and Harris research revealed. He accepted that he had not recorded the parameters in the study with precision but nevertheless said his figures were well within the limits that Shaw and Harris would regard as rendering a surface slippery when wet. 30The defendant's expert, Mr Donohue, was particularly critical of Mr Beckett's micro roughness testing. He says that macro roughness testing should have been done and he added: "indeed, it should be apparent even to a lay reader that a macro-roughness is more important than micro-roughness". The court is in the position of a lay reader and it was not apparent to the court that this would be the case, notwithstanding Mr Donohue's perception that it was really rather obvious. 31Mr Donohue, in paragraph 44, also criticises Mr Beckett for conducting his measurements while the travelator was moving. He adds gratuitous comments such as: "If he did stop it (presumably with permission) then security must have come along to start it up again". 32The point that Mr Donohue misses is that the plaintiff fell when the travelator was moving. It therefore seems entirely appropriate that the test be conducted on a moving travelator. 33Mr Donohue's report (Exhibit 1D1) makes much of the plaintiff's footwear. He says in paragraph 7: "The footwear were defective. Unless brand new footwear had only just been given to the plaintiff, by her employer, the heel edge must have been worn to a flat. This is an inevitable and common occurrence within a very few weeks of use of a soft elastomeric material upon hard pedestrian flooring environments such as terrazzo, tiles (glazed or vitrified) etc." 34Mr Donohue later seems to suggest that the plaintiff was at fault in wearing the shoes that she had on. He says: "It was open to her to take note of that fact (that her shoes were wet) to effect suitable contact on the travelator. However, knowing it to be worn she was also in a position, and prior, to warn her employer of the wear to her footwear. They too, of course, should have effected a design strategy when purchasing footwear for their employees." 35Mr Donohue's over personal attack on Mr Beckett was also evident in relation to footwear. He said: "Mr Beckett clearly did not know anything about the footwear, ie their material design, methods of analysis, means of testing, etc, nor of angle of approach of footwear and the connection with wear analysis." 36Mr Donohue's opinion was that "nothing served [sic] by this writer identifies that the surface is unsafe or a danger when wet". Ultimately I have derived little assistance from the experts. I do accept Mr Beckett's opinion that the pallet surface was slippery when wet but this seems little more than an application of common sense. 37I think the starting point in resolving liability is to look at the duty of care owed by an occupier to a legal entrant. This 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 duty obviously applies to the manager. I think it also applies to the cleaner to the extent that the cleaner must take reasonable care to avoid a foreseeable risk of injury to persons like the plaintiff. 38I think the above formulation is consistent with Section 5B of the CLA, although it is still necessary to ensure the plaintiff has established the ingredients of the section. Section 5E places the onus squarely on the plaintiff. 39Section 5B is as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 40Even if some distinction could be made with 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 defendants' position would have taken precautions against the risk. 41Looking at Section 5B in more detail I am satisfied that a risk of a person walking through a wet surface and then onto a metal moving travelator (in a downward direction) and slipping was foreseeable. The tribological (lubricating) reaction between water and a hard surface is well known, and well known to create a slippery medium. I am therefore satisfied that the risk was not insignificant and that a reasonable person in the position of the defendants would have taken precautions against a risk of harm. 42In respect of Section 5B(2) I am satisfied that harm was a significant probability if precautions were not taken. Allowing a person to walk through a wet surface onto the travelator is easily preventable. I will return to this aspect below. A person falling onto a hard metal surface is susceptible to significant injury and the burden of taking precautions, in my view, was not onerous. I do not think Section 5B(2)(d) is relevant here. 43In relation to the precautions that could have been taken the cleaning could easily have been done before the centre was opened, the cleaner could have halted the plaintiff's progress and asked her to wait until he had dried the surface and he could have placed a 'no entry' or other warning sign in the path of the plaintiff, not only the one sign that is to be observed in the CCTV footage. I also think reasonable precautions would have included the roping off the area while it was being cleaned. I do not, however, take this into account as no questions were put to the cleaner raising this possibility and giving him the opportunity to say why the action may not have been possible or practical. 44As far as the defendants are concerned, I think the first defendant is liable to the plaintiff for not requiring the cleaning to be done outside public hours. The travelator, perhaps even more than stairs generally, is an inherently dangerous device. The first defendant would have been aware that cleaning around the travelator would make the area wet and therefore dangerous to a person whose shoes became wet. The manager could have directed the cleaner to carry out his task either when the travelator was stopped or before opening hours. In this respect the cleaner also bears some responsibility. He had the capacity to turn off the travelator during his cleaning exercise. 45I also think the first defendant carries a liability generally for the actions of the cleaner. I do agree that the obligation in respect of efficient cleaning can be delegated but I do not accept that there had been a proper delegation in the present case, at least sufficient to relieve the first defendant of liability. 46Hodgson JA in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at paragraph 53 said this: "[53] There is no doubt also that this occupier's duty of care is "delegable", in the sense that it May be discharged in whole or in part by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier May escape liability." 47The history of the engagement of the second defendant was that there had been difficulties with previous cleaners. The second defendant was engaged in November 2007 to provide interim cleaning on a monthly basis pending a proper tender for the work. The basis for the selection of the second defendant seems to have been that Mr O'Reilly knew the second defendant cleaned in other shopping centres managed by the first defendant and would be able to take over the cleaning at Chester Hill on a provisional basis. 48An onsite meeting was arranged but there is no evidence of any discussion of risk factors, of competence or of any other matter which would substantiate the exercise of reasonable skill and care in the selection of the second defendant. The terms of engagement are minimal and there is no formal contract requiring specific steps to be taken by the cleaner in the exercise of its obligations. 49The defendants submitted that the plaintiff had failed to establish that her injuries had been caused by any breach of duty of care on the part of the defendants, as required by Section 5D of the CLA. I disagree. In my view, but for the negligence of the defendants the plaintiff would not have entered an area where water could be collected by her shoes and then stepped onto the moving metal surface of the travelator. In other words, but for the defendants' actions the plaintiff would not have slipped. 50The defendants submitted that they were not under a duty to warn the plaintiff of the risk which she faced because that risk was obvious as defined in Section 5F. Although the plaintiff saw the cleaner as she approached the travelator, the plaintiff submitted that the actual risk to which she was about to be exposed was not obvious. The plaintiff said that the specific risk must be identified and relied on this passage from the New South Wales Court of Appeal decision in C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 at paragraph 113: "[113] I do not consider that the remaining sub-sections of s 5F render the statutory definition of "obvious risk" applicable to these circumstances. The spilt polish being left rendering the floor slippery was not a "patent risk" to the unaware so rendering it an obvious risk; the most that could be said was that it was arguably common knowledge that cleaners on occasion do their job carelessly so that spilt polish might be a possibility; s 5F(2). Of course if it were well-known to the plaintiff that a particular cleaner was excessively careless and regularly left polish on the floor, that would be a case converting the mere possibility of some risk into a patent risk, arising as a matter of common knowledge. But this was never such a case." 51I agree with the plaintiff's submissions on this point. What would have been obvious to the plaintiff was that the cleaner was using water on the surface ahead of her. Use of water might create a danger of slipping. What would not, however, have been obvious to her was the risk created by first of all stepping on water, then having the soles of her feet become wet and then being susceptible to the lubricating effect of wet shoes on the moving steel surface. I therefore do not think that the obvious risk provisions of the CLA assist the defendants. 52If I am wrong in this regard I am nevertheless satisfied that the breach of duty of care of the defendants goes beyond a failure to warn such that the absence of the warning did not disturb the causal link between other acts of negligence on the defendants' part and the plaintiff being injured. 53In relation to the cross-claims I think the second defendant must bear the majority of blame. Through its cleaner it did the work in a negligent manner and with the ease of simply stopping the plaintiff from proceeding as a means of alleviating the risk of her fall. I think the first defendant should be entitled to a contribution from the second defendant of 80% of the plaintiff's damages. 54In relation to contributory negligence, my initial impression was that the plaintiff might be responsible for as much as 25% by way of contribution to her loss. However, the close inspection of the video, which I have referred to above, establishes that she did attempt to hold the handrail on the right hand side. Nevertheless I think there is some contributory negligence in that having decided to walk through the wet area she should have taken extreme caution in proceeding down the travelator. I note the views of Mr Beckett about the safety of this sort of conveyance and also observed that when the cleaner descended the travelator he did so with both arms holding on to the handrails and apparently with a good deal of caution. 55On this basis I think the plaintiff's damages should be reduced by 10% in respect of her contributory negligence. After the fall 56The plaintiff fell onto her tailbone and soon felt pain in that area. She was taken by ambulance to Bankstown Hospital where she remained for five days. An undisplaced fracture of the coccyx was identified. 57A short time later she noticed low back pain. The two injuries that she alleges have produced the damages she claims are the fracture of the coccyx and the low back pain. They both continue to trouble her to the present time. In addition, as a consequence of the low back pain, the plaintiff says that she has a weaker left leg. 58The plaintiff's allegations about her left leg were the subject of a good deal of cross-examination. The plaintiff said that in March 2009 her left leg collapsed under her and she fell to the ground. As a result, she could not continue the limited hours of work that she had returned to and was only able to return to even more limited hours in June 2009. 59A number of the histories apparently given by the plaintiff contradict her assertion of her left leg collapsing. The histories are more consistent with her missing a chair when sitting down and falling to the ground. I am generally very reluctant to attach weight to histories to medical examiners because of the warnings set out 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). Consistent with the reasoning behind these warnings, one of the histories (to Dr Perla) says the plaintiff fell in her driveway "when walking to her car in her garage." (Exhibit D, page 30). 60There is evidence that the plaintiff complained of weakness in her left leg before the March fall. More importantly I think are these two points: (a)Prior to the March 2009 fall the plaintiff already had a fractured coccyx and a disc protrusion in her low back. (b)The March 2009 fall unquestionably aggravated the plaintiff's injuries and this aggravation no doubt continued for some months, perhaps a bit longer. What the fall did not do was further injure the plaintiff so as to superimpose a new condition upon her already existing condition. 61Dr Anderson (Exhibit E), who coincidentally has a consistent history of the event, attributes 20% of the plaintiff's current problems to the fall in March 2009. What he does not do, however, is to suggest that this 20% dictates the plaintiff's capacity to work or perform domestic activity. I do accept that it would have had some influence but I do not see it as an event that dominates the plaintiff's damages and certainly not to the extent suggested by the defendants. They submitted that the plaintiff's damages for economic loss and past domestic assistance should cease with the March 2009 fall. At best I think Dr Anderson's assessment should be taken into account as a factor that might militate against the awarding of the full amount claimed by the plaintiff, although not necessarily by a deduction of 20%. 62In relation to the connection of the second fall to the first fall I am not prepared to accept that it would not have occurred but for the first fall, but rather prefer to proceed on the basis that it was a separate incident, perhaps connected to, but not caused by the original accident. 63Another area, which was the subject of some controversy, was the plaintiff's weight. She said that a lack of exercise and depression after the accident led to significant weight gain. Her weight "ballooned" to 128kg. Before her accident she had not exceeded 110kg in weight. 64I can certainly accept that a person might gain weight when inactive however the plaintiff had a long-standing weight problem including major fluctuations. For example she was 110kg on 24 June 2008 and then 125kg on 10 July 2008 (Exhibit D, page 205). 65She has since lost a good deal of weight and is now down to about 82kg. The weight loss does not seem to have produced significant pain relief. I suspect her pain is probably now as much psychologically based as derived from her physical injuries. 66A further area concerns the plaintiff's allegations of depression. She initially said she had not been depressed prior to her fall. This is contradicted by her attendance at an obesity clinic where she apparently gave a history that she had been depressed for a number of years. She agreed that she had probably given this history. 67The plaintiff relied on Exhibit F in support of her claim for gratuitous domestic assistance. This claim is derived from Section 15 of the CLA. It is well known that this section imposes a '6 hour per week for 6 months' threshold. In the plaintiff's examination in chief Exhibit F was apparently put forward as detail of the domestic activities she undertook prior to her fall. Later in her evidence it became a summary of housework after the fall by family members, although with a small contribution from the plaintiff. 68Whatever Exhibit F represents I find its detail simply not credible. For example, it suggests that 18 hours of work were performed every Saturday. The plaintiff later said that she did not deal with the rubbish, thus leaving 17 hours of activity on a Saturday. I do not accept this level of activity. I do not accept that one hour is needed to clean a rubbish bin. I generally find the estimates of time to be most unlikely. Another example that stands out is 8 hours a week making beds or changing sheets. 69Some of the estimates may be fair, for example cooking, but as a general statement I find Exhibit F fails to provide reliable evidence in support of the plaintiff's pre-accident domestic activity. I also reject it as an indication of the amount of assistance provided after the accident. In doing so I am mindful that the family, after the accident, may not have been as efficient as the plaintiff had been before her injury. I also note there was no detail, besides "family" of who actually did the work. None of the providers of care gave evidence. I infer that their evidence would not have assisted the plaintiff's case. 70Another complicating factor in the case is that in July 2012 the plaintiff was involved in a motor vehicle accident. She said that there was some aggravation to her low back and tailbone for two or three months but that the principal injuries were to her neck and left shoulder. She was not working when this accident occurred and has not worked since. 71The plaintiff remains employed by Woolworths and still receives workers compensation payments. However, despite probably being fit for at least light duties she is not working at present. Besides her fall injuries, other factors that seem to play a part are family issues arising from her mother living with her and there being some "confusion" about this arrangement with her children as well as the effect of the injuries she sustained in the motor vehicle accident. It is almost impossible, on her evidence, to reach any firm conclusion about the precise cause of her not working at present. The best I can do is find that the injuries from the fall in 2008 play a part in her current absence from work but are not necessarily the dominant part. 72The plaintiff said that at the present time she continues to have low back and tailbone pain. She takes painkillers and as a result has had difficulties with constipation. Remedies for this condition have led to diarrhoea so that, as I understood her evidence, she follows a cycle of constipation and diarrhoea about twice a week. 73The plaintiff said that her injuries had led to a diminution of intimate contact with her husband and this in turn was a source of frustration for the couple. 74The plaintiff's father passed away in 2011 and the plaintiff's mother came to stay with her for a short period. However, since then the plaintiff and her family have sold and moved out of their home and now live with her mother in a two bedroom apartment. They plan to leave when they are able to purchase a small house. Medical reports 75The plaintiff tendered some 250 pages of medical reports, often consisting of short updates from treating doctors, various clinical and hospital notes and also detailed medico-legal reports. I do not intend to summarise all of the reports but rather to mention various important excerpts from some of them. 76The ambulance report corroborates the plaintiff's version of her fall. 77The first specialist the plaintiff saw after her fall was Dr Herald, an orthopaedic surgeon, who initially treated her by referral for physiotherapy and painkilling medication. In his last report, dated 5 January 2009, Dr Herald refers to the plaintiff having emotional difficulties with work and also to a significant weight loss. He recommended an MRI scan and also suggested the plaintiff consult a psychologist. 78The MRI, which is at page 8 of Exhibit D, produced this conclusion: "CONCLUSION: There are multiple disc protrusions at T10/11 to the left, at L3/4, L4/5 and L5/S1 in a central direction most pronounced at the L5/S1 in contact with both S1 nerve roots. The thecal sac is indented. Multiple annular tears are seen in the protrusion also." 79Dr Herald's reaction to the MRI was to refer the plaintiff to a spinal surgeon, Dr Papantoniou. The plaintiff first saw this specialist in March 2009. He sent her for a bone scan which revealed "a fracture of the inferior part of the sacrum". This fracture, by the end of April 2009, had not completely united. Dr Papantoniou also referred the plaintiff for further physiotherapy and advised her about the benefits of losing weight. 80On 14 January 2010 Dr Papantoniou noted that the plaintiff had lost about 18kg of weight "due to a paragastric balloon implant". He did not think any further intervention was needed and told her that "the non-operative management is the main stay of her current therapy". 81The workers compensation insurer referred the plaintiff for two consultations with a psychiatrist, Dr Murugesan. He saw the plaintiff on 22 December 2008 and 12 January 2009. The plaintiff told the doctor that she had "no past history of any injury or depression". This seems inconsistent with the history she gave to the obesity clinic. Dr Murugesan thought the plaintiff was suffering from an adjustment disorder with depressed mood and a chronic pain syndrome as a result of her fall. He prescribed an antidepressant and suggested supportive therapy to keep her at work and psychological treatment for pain management. 82The workers compensation insurer also referred the plaintiff for occupational health assessment. This was done by Dr Perla. His report is at page 29 of Exhibit D. Dr Perla thought the plaintiff could return to work on restricted and light duties commencing at three or four hours a day for three days a week, to be upgraded with progress. 83There is a report by Dr Talley dated 22 August 2012 concerning the plaintiff's abdominal problems. His history is that the problems started in about 2010 with "terrible discomfort in the lower abdomen which feels full and uncomfortable and painful". He then relates the plaintiff's practice of becoming constipated and then taking laxatives and continuing on to diarrhoea. Dr Talley thought the correct diagnosis was "medication-caused abdominal pain and constipation". He said this diagnosis had been complicated by taking laxatives. He attributed the abdominal pain to irritable bowel syndrome. In relation to the aetiology of the condition he said: "Her accident may have precipitated depression, increased weight gain and has resulted in some chronic pain that has to be treated by her with constant painkillers. All her problems have started with the fall and development of coceydynia. I cannot give an opinion regarding this disability and how to assess it. Neither do I know if it is going to affect her capacity to work now or in the future. The end result is a complex psycho-somatic problem This should be dealt with by psychologists or psychiatrists." 84In relation to future treatment Dr Talley says that the back problems are partly due to the plaintiff's weight. He says: "I would think that her problems can be traced back to her obesity. I think if her obesity could be fixed - and she really tried to do this when she went for the gastric balloon trial - she would be better, but unfortunately money limits this because most obesity surgical treatment is expensive and not available easily in public hospitals". 85The plaintiff had the surgical treatment and her weight has substantially reduced. She did not however give evidence of any corresponding improvement in her pain levels. This I think enforces the opinion of Dr Talley, and other doctors, of a very pronounced psychological element at play. 86The most recent report obtained by the plaintiff is that of Dr Matalani dated 28 November 2012. Dr Matalani is an occupational physician. His report predates the plaintiff moving into her mother's residence so that some of his comments about domestic activity are perhaps not relevant. He did get a history that the plaintiff's left leg gave way when she fell in March 2009. Based on this history he says that "her second fall could therefore be consequential to the pain in the left side of the back (contributed to by her back pain) and would therefore be considered causally related to her fall on 25 July 2008". 87In relation to work Dr Matalani said any employment would carry with it significant restrictions. He also said: "Her realistic incapacity for work as a result of the initial fall on 25 July 2008 and consequent fall in 2009 cannot be objectively assessed until she has received optimum treatment as a result of her recent injuries caused by the motor vehicle accident in August 2012." 88The plaintiff also tendered the report of Dr Anderson, which is mentioned above, and had been obtained by the second defendant. 89I asked the plaintiff if she thought her motor vehicle accident injuries alone prevented her from working. She said that had been the case for a period but that now it was the fall injuries that were the main reason for her not working. My impression of her evidence, as I have already noted, was that she was not working because of the combination of all of her injuries (including psychological) and personal circumstances (such as the whole family living in the plaintiff's mother's two bedroom flat and the obvious strains that would no doubt engender). 90The defendants' medical reports are in Exhibit 2D1. They were hardly referred to. Essentially I was taken to some conclusions to suggest that the protrusions in the plaintiff's low back were not related to the fall. It was put to the plaintiff that she was exaggerating her symptoms. While I think there is certainly a psychological component to her presentation I do not accept that there was any conscious embellishment. 91Dr Schutz, in his supplementary report, says "the pre-existing pathology was mainly obesity". This seems a somewhat unusual pathology condition. Nevertheless he seems also to be saying that there was no protrusion from the fall but rather the plaintiff's degenerating spine was to blame. Dr Maxwell notes that there are no significant radicular symptoms, by which I understand him to mean that there is no radiating of the pain from the low back. This, of course, is quite wrong, there being a good deal of evidence from both the plaintiff and the general practitioner's notes to indicate the radiation of pain into her left leg. 92The defendants also relied on the recent report of Dr Anderson, as did the plaintiff (Exhibit E). He says that the plaintiff's low back pain "is associated with the event of July 2008 and possibly with the occasion in March 2009 when she fell over due to the collapsing of her left leg". I think Dr Anderson's report is fair and his conclusions accord with my impression of the plaintiff's evidence. As noted above, I have not elevated Dr Anderson's "possibility" to a probability in respect of the causal link between the falls. I otherwise accept his opinion. Damages 93Starting with non-economic loss, the opinion of Dr Anderson plays its part in illustrating that not all of the plaintiff's current problems are due to the accident. In addition, there must be factored in the plaintiff's domestic situation which has led to a good deal of emotional upset stemming from the death of her father, the need to care for her mother, the need to move the entire family into a two bedroom apartment and the tensions that have emanated from having teenage and adult children living in close circumstances with parents and a grandmother. 94Notwithstanding the impact of the matters I have just recounted, as well as the effects of the second fall and the motor vehicle accident, I nevertheless accept that the plaintiff continues to suffer pain in both her tailbone and her low back and that a degree of her psychological condition has been produced by the accident. I also accept that she is likely to continue to suffer pain for a number of years into the future, perhaps permanently, although probably at a lessening degree. 95The plaintiff submitted that non-economic loss should be assessed at 35% of a most extreme case. The first defendant said 28% was appropriate although conceded that the range was probably from 25% to 35%. The second defendant suggested 25%. I agree with the first defendant's description of the appropriate range and think that a fair result lies in the centre of this range. Accordingly I allow non-economic loss at 30% of a most extreme case. Under Section 16 of the CLA this produces a figure of $123,000. 96The plaintiff's claim for past out of pocket expenses totals $32,510.91 (Exhibit N). Of this amount the defendants conceded $2,093.75. They accepted that the balance of the moneys had been paid but did not accept any causal connection to the fall. They did not submit that any of the treatment had been unreasonably provided nor that any cost was excessive. Their submission was that the treatment had not been caused by the 2008 fall. 97The whole of the amounts in dispute have been paid by the workers compensation insurer in respect of the original fall. Clearly therefore the insurer has accepted a causal link between the fall and the expenses. The only argument advanced by the defendants was that the second fall is responsible for some of the expenses. I was given no detail, let alone specific examples, of which expenses this submission might apply to. There was no suggestion that any of the moneys were paid in respect of the motor vehicle accident injuries. 98In my view, the prima facie connection between the expenses and the original fall has not been displaced by the defendants and I think the whole amount should be allowed. Past out of pocket expenses are therefore assessed at $32,510.91. 99The plaintiff's claim for future out of pocket expenses is $38,523, mostly based on the reports of Dr Habib but also including a "buffer" of $10,000. The defendants suggested their own buffer, which was $7,500 in total. I think the regime of future consultations with doctors is unreasonable. I do not see why the plaintiff needs to see a general practitioner once a month or an orthopaedic surgeon every year for the rest of her life. There was also no detailed evidence from the plaintiff about the medication that she took, nor of its cost. There is some reference in the medical reports to the use of a TNS machine but no evidence as to how long this machine will be of use. 100I think the defendants' buffer approach is correct but I think their figure is too low. In my view an appropriate allowance is $17,500. 101The plaintiff claimed $104,701 for past economic loss, essentially based on a shifting regime of capacity to work ranging from total unfitness to being able to work for 15 hours a week. The defendants did not dispute that the plaintiff was earning $488 net per week in 2008, which is the figure at the base of the plaintiff's calculations. 102The plaintiff's claim rises after the second fall. This is based on the incident being a product of the original fall because it occurred following the plaintiff's left leg collapsing. The plaintiff's claim takes no account of the motor vehicle accident. 103As I have already noted I have not concluded that the second fall was caused by the first fall. It follows that I do not accept any increased economic loss flowing from the second fall. 104The defendants suggested a figure of $55,000 to compensate the plaintiff for past economic loss. I think the defendants' figure is closer to the mark although it needs to be increased because it places too much reliance on the second fall. In my view, past economic loss should be assessed at $75,000. The lost superannuation benefits on this amount, at 11%, are $8,250. 105Fox v Wood damages were agreed at $20,000. 106The plaintiff claimed $262,990 for future economic loss based on her earning a net wage of $515 per week but being able to work for six hours a week. The figures were calculated to age 67 and reduced by 15% for vicissitudes. 107The first defendant suggested a cushion of $75,000 for future economic loss. 108Before assessing this head of damages it is necessary for me to comply with the requirements of Section 13 of the CLA. I am satisfied that but for the fall the plaintiff would have continued to work to retirement but probably not on a full time basis. I am also satisfied that the normal vicissitudes of 15% should be increased to 20% as a result of the plaintiff's obesity and that the calculation of the plaintiff's capacity to earn should take into account other factors (including unrelated injuries and psychological effects) to reduce the extent of the lack of capacity which is attributed to the original accident. 109The plaintiff has another 26 years and four months to retirement. Taking into account all the matters that I have just set out I think a weekly loss of $200 as a result of her incapacity to work due to the original fall should be the basis of future economic loss and that upon application of the 5% tables the total should be reduced by 20% for vicissitudes. The figure produced by this approach is $200 x 773.5 x .8 = $123,760. Lost superannuation benefits calculated on this amount are $13,613.60. 110The next head of damages to be considered is past domestic care. As I have already mentioned I have considerable difficulty with the plaintiff's claim. The claim for the past is $60,914 based on a varying number of hours but never less than eight per week. The plaintiff's schedule does recognise the unreliability of Exhibit F. It also reduces the alleged number of hours (20) down to eight hours per week due to the assistance that was given to the plaintiff by a community organisation from her fall until the end of October 2008. 111Because of the unreliability of Exhibit F and the absence of evidence going beyond "the work was done by my family" I find the calculation of precise domestic care to be very difficult. I am satisfied, based on the medical reports, that the plaintiff has had a reasonable need for care in the past. In his report of 28 May 2012 Dr Habib said the plaintiff had a continuing need for six hours a week in domestic assistance. Dr Anderson, taking into account all of the plaintiff's injuries, thought that she currently needs about seven hours a week of assistance. 112I am satisfied that following the accident the plaintiff had a fairly substantial need for domestic assistance but that it has tapered off and should now be seen at about six hours per week. The difficulty with allowing this figure to date is that in August 2012 the plaintiff and her family moved into her mother's two bedroom unit. The plaintiff said it took three hours a day of joint effort to clean this apartment. I do not accept that estimate. I think it is excessive. 113I am also of the view that the cleaning of the plaintiff's mother's unit is not domestic activity for the benefit of the plaintiff. Firstly I think the cleaning is generally for the benefit of the plaintiff's mother but also for the benefit of the other members of the plaintiff's family. It is to be recalled that the plaintiff's children are now 15 years of age or older. The domestic work they do, whatever it is, is no doubt in part for their own benefit. I therefore do not accept that the necessary six hours per week of domestic care required to qualify for damages has been provided to the plaintiff since August 2012. 114Taking into account the help that was obtained from the community organisation for the first three months following the accident, but also accepting that there was a much higher degree of care needed at this time, I will assess past domestic care on the following basis: (a)25 July to 31 October 2008: 8 hours at $25 per hour for 13 weeks ($2,600). (b)1 November 2008 to 1 August 2012: 6 hours per week at $25 per hour for 196 weeks ($29,400). (c)2 August 2012 to the present: nil. 115The total past domestic assistance is $32,000. 116In relation to the future, the claim is for 7 hours per week for the remainder of the plaintiff's life at $26 per hour. I should note here that the defendants accepted the rates used by the plaintiff. The defendants, however, said there should be no allowance for future domestic assistance. This was also their attitude to past assistance in respect of which they said that the thresholds were not met and that the intervening fall in any event reduced the need for continuing care as a result of the original fall. 117The plaintiff said that her intention was to purchase a home in the near future, probably with two or three bedrooms and one bathroom. This is much smaller than the home in which the plaintiff was living at the time of her accident. There is also no set date for the move. I do, however, accept that having regard to the whole family now living in a two bedroom apartment that this move is likely to be sooner rather than later. 118I also accept that, living in a three bedroom house the plaintiff does have a reasonable need for the continuing provision of domestic assistance of, in line with the medical reports, about six hours per week. What I have difficulty with is the absence of evidence of who will provide this assistance. The CLA not only requires that a 'six hour / six month' threshold be met but also that the services be provided gratuitously. No claim is made for paid assistance. In this case this must mean that the assistance will be provided by members of the plaintiff's family. 119As already noted, there was no evidence from any member of the family upon which I could base an acceptance that, in the case of the children, they are even likely to remain at home let alone help their mother. I do accept that the plaintiff's husband is likely to be of assistance. I do not know, however, what his age or health condition are, nor of his inclination to carry on assisting if the bulk of the housework is placed at his feet. 120The plaintiff's twins are now 15 years of age so they are likely to be at home for some years to come, perhaps until their tertiary education (if any) is completed. I think the fairest approach to future domestic assistance is to allow the plaintiff another 10 years at six hours per week at a rate of $26 per hour, but that the commencement of the 10 years should be deferred for two years to take into account some period before the plaintiff moves into her own home. 121Applying the 5% tables, the calculation for future domestic care is as follows: 6 x 26 x 412.9 x 0.907 = $58,422.05 122A summary of the damages I have awarded is as follows: Non-economic loss $123,000.00 Past out of pocket expenses $32,510.91 Future out of pocket expenses $17,500.00 Past economic loss $75,000.00 Past superannuation benefits $8,250.00 Fox v Wood damages $20,000.00 Future economic loss $123,760.00 Future lost superannuation benefits $13,613.60 Past domestic care $32,000.00 Future domestic care $58,422.05 Total $504,056.56 123The above total needs to be reduced by 10% for contributory negligence. The result is $453,650.91. The plaintiff is entitled to judgment for this sum. 124In respect of the cross-claims, on the basis of my findings above, there will be a verdict for the first defendant against the second defendant in the sum of $362,920.72. There will be a verdict for the second defendant against the first defendant in the sum of $90,730.19. 125I will therefore make the following orders: (a)Judgment for the plaintiff against the defendants for $453,650.91. (b)Judgment for the first defendant against the second defendant, on the first cross-claim, for $362,920.72. (c)Judgment for the second defendant against the first defendant, on the second cross-claim, for $90,730.19. 126I will hear the parties on costs in case any special orders are sought. Final Orders 127Judgment for the plaintiff against the defendants for $453,650.91. 128Judgment for the first defendant against the second defendant, on the first cross-claim, for $362,920.72. 129Judgment for the second defendant against the first defendant, on the second cross-claim, for $90,730.19. 130Costs: (1)In respect of the plaintiff's case against the defendants: (a)The defendants are to pay the plaintiff's costs of the proceedings. (b)The plaintiff's costs are to be assessed on an ordinary basis until 12 October 2012 and thereafter on an indemnity basis. (2)In respect of the cross-claims: (a)On the cross-claim filed by the first defendant against the second defendant the second defendant is to pay the first defendant 80% of any liability the first defendant may have to the plaintiff in respect to costs. (b)On the cross-claim filed by the second defendant against the first defendant the first defendant is to pay the second defendant 20% of any liability the second defendant may have to the plaintiff in respect to costs. (c)On the cross-claim filed by the first defendant against the second defendant the second defendant is to pay the first defendant's costs of that cross-claim as agreed or assessed. (d)On the cross-claim filed by the second defendant against the first defendant the first defendant is to pay the second defendant's costs of that cross-claim as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2013