District Court New South Wales Medium Neutral Citation: Rennie Kissun v Coles Supermarkets [2013] NSWDC 134 Hearing dates: 11, 12 and 15 July 2013 Decision date: 09 August 2013 Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For orders see [102] Catchwords: Slip and fall; occupier's liability Legislation Cited: Civil Liability Act 2002 Cases Cited: Strong v Woolworths t/as Big W (2012) 246 CLR 182 Browne v Dunn (1894) 6 R 67 (HL) Adeel's Palace v Moubarak (2009) 239 CLR 420 Penrith City Council v Parks [2004] NSWCA 201 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 44 Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Category: Principal judgment Parties: Rennie Kissun - Plaintiff Coles Supermarkets - Defendant Representation: A Lidden SC with P Khandar and B Tzatzagos - Plaintiff N Polin - Defendant Brydens Law Office McCulloch & Buggy File Number(s): 12/35236 Publication restriction: Nil Judgment The Plaintiff's Claim 1The plaintiff who was born on 22 February 1984 claims damages for injuries suffered by her on 22 July 2011 when she slipped and fell within the defendant's premises at Castle Towers Shopping Centre, Castle Hill. The plaintiff claims that she slipped and fell on water which had spilled on the floor, adjacent to the freezer section. The plaintiff claims that the spill had been identified by an employee of the defendant who had, subsequent to the fall, told the plaintiff that she had gone to get a warning sign to place on the floor to warn shoppers of the presence of the spill. 2The plaintiff further claims that following her fall the store manager, when told what had happened, said words within the hearing of the plaintiff to that employee to the effect that she had breached the store policy with respect to spills. 3The plaintiff claims that she suffered an injury to her lower back involving a disc protrusion with nerve root impingement, as a result of which she has been unable to return to work, and has limited her physical capacity. She has also suffered a psychological reaction to her injury. The Defendant's Case 4The defendant does not challenge the fact that the plaintiff fell in its store, rather, its case is that the floor was observed by an employee within a very short time (namely 40 seconds) to be free of spillages and that its employee was in the process of obtaining a warning sign for another spill elsewhere in the store when she saw the plaintiff fall. The defendant denies the above conversations alleged by the plaintiff occurred in those terms. 5The defendant submitted that it had a reasonable cleaning system in place within the store. Whilst it concedes that there was a risk of harm of injury to customers within its store of slipping on spillages on the floor which was not insignificant and was foreseeable, the defendant submitted no question of causation could arise in the circumstances of this case. In other words, a reasonable system of inspection would not have in fact identified a spillage in the circumstances here. 6The defendant abandoned its pleading of a defence by way of contributory negligence of the plaintiff. It attacked the plaintiff's credit, has submitted that she has exaggerated her claims for damages and that she had failed to disclose a pre-existing symptomatic injury to her lower back. The defendant submits that the plaintiff suffered an aggravation to that preexisting symptomatic condition in the fall. The Plaintiff's Evidence on Liability 7The plaintiff gave evidence that she was in the defendant's premises on the afternoon of 22 July 2011 with her mother. Immediately prior to her fall she was alone in the freezer section of the supermarket and not carrying a basket or pushing a trolley. When asked the circumstances of her fall she gave the following evidence: "Q: And as you walked along, did you feel something happen with one of your feet? A: Yes. Q: Do you remember which foot it was now? A: I don't remember which foot, because I fell very quickly. Q: So what did you notice happened to your foot? A: I lost balance and I slipped. Q: What slipped? A: My foot. Q: In which direction did it go? A: Forward. Q: When that happened, were you able to keep your balance? A: No. Q: So I take it you fell? A: I did fall. Q: Can you describe the manner in which you fell? A: I fell on my bottom with my feet out in front of me and to sort of break the fall, I landed on my left side on my bottom with my hand out." 8After the fall the plaintiff noticed that her clothing was wet on the back of her pants. She also noticed a small skid mark on the floor, consistent with her shoe sliding. 9The plaintiff said she then saw some water on the floor. She identified it as covering an area of about one foot or 25-30 cms square. 10The plaintiff was unable to get to her feet. A female came to her aid who she recognised as a Coles employee by her uniform and name tag. She was carrying a yellow sign that contained the cautionary words, "Caution slippery when wet". 11That person, who the plaintiff could not identify, said: "Oh my god. I'm so sorry. I was just about to put this sign up and I saw you slip and fall in front of me." The plaintiff said: "You are a bit late." The employee said: "I am really sorry." 12The plaintiff's mother was called over the PA system. Others arrived on the scene including Mr Tom Ikos, the store manager. The plaintiff overheard Mr Ikos ask the female employee what happened. She replied: "The floor was wet, I left to get a sign. As I was coming back with the sign I saw Rennie slip and fall in front of me." 13When the plaintiff was asked whether he responded, she said that he did, saying: "You know you shouldn't leave" or "you should have called someone to get the sign because you knew the floor was wet." The female employee said she was sorry. 14The plaintiff remained on the floor for approximately forty minutes. Two male members of staff assisted her onto a chair where she remained for at least half an hour. She was rendered firstaid. 15In cross-examination it was put to the plaintiff that the conversation of which she gave evidence referred to in paragraph 11 above did not take place. She disagreed. It was put to the plaintiff that the female employee had in fact observed a spill in the juice section of the store and that having retrieved a warning sign for that spill, was on her way back to a different area. It was put to the plaintiff that that employee never told the plaintiff that she was getting the sign to put where the plaintiff fell, with which the plaintiff disagreed. The plaintiff adhered to her evidence that she had slipped on liquid and that her pants were wet following the fall. 16The plaintiff was not challenged as to her evidence of the conversation she overheard between that female employee and Mr Ikos as set out in paragraph 12 above. 17The plaintiff's mother, Mrs Shammi Chand, was in the store but not with her daughter at the time of the fall. She heard her name being called on the PA system and went as directed to the rear of the dairy section where she saw a group of staff standing around her daughter who was sitting on the floor. She gave evidence that the following conversation took place between her and a female employee: "Mrs Chand: What's happened to Rennie? Female Employee: Stay calm. The floor was wet. Rennie fell. We're sorry." 18Mrs Chand did not recall any male staff member saying anything, however the plaintiff did tell her that the floor was wet and one of the employees present said that the sign was not there; and "it came just minutes late". 19She confirmed that the place where the plaintiff fell was adjacent to the freezer section where frozen vegetables were located. She observed the plaintiff to be gently lifted from the floor and placed on a chair and observed the back of her pants to be wet. The plaintiff's husband arrived approximately half an hour later and she was provided with a wheelchair and was taken by her husband to her doctor. Mrs Chand was not crossexamined about her observations. 20The plaintiff relied on documents produced by the defendant on subpoena (exhibit U) which included the defendant's incident report which was a printout of an electronically produced document which recorded that the incident occurred at 4.50pm on 22 July 2011 at the dairy/frozen section of the defendant's premises. The document recorded Miss Wellfare was a witness to the incident and under the heading "Control Actions" the document recorded that the area was mopped immediately by the store cleaner "George" and that Mr Ikos, the store manager, had taken the following action, namely: "Re training, discuss in huddles about the importance of safety and identifying hazards and what actions to take. ... Raising next safe leadership meeting, key actions." 21Under the heading "Was the incident a slip or fall", the document recorded that the area was last cleaned on 22 July 2011 at 2pm, almost three hours prior to the plaintiff's fall. The Defendant's Evidence on Liability 22The defendant called Miss Karen Wellfare, who, at the time of the plaintiff's accident, was employed by the defendant. Her evidence was that on 22 July 2011 she was working in Aisle 1 in the juice section when she noticed there was a spill on the floor. She went to get a warning sign which she found in the cream section. She drew a diagram of the route that she travelled from the juice section to the cream section, a distance of between 30 and 40 metres, which became exhibit 10 in the proceedings. That route took her past the freezer section where the plaintiff fell. She was asked: "Q: As you went from the juice section to the cream section to recover the sign, did you observe any spillages on the floor at that stage? A: No." Once she had reached the cream section she found a warning sign where another spillage had occurred, but in that area, the floor was dry. She started walking back by the same route and as she was approaching the freezer section she saw the plaintiff fall. She was 8-10 metres away and she gave evidence that it had taken her approximately 40 seconds from the time that she left the juice section. 23When asked what she did she answered: "A: I went up to her and she was still on the ground, and just told her I'd call code blue. ..." Q: Did you do anything with the sign that you had? A: I put the sign with her. ...I went and called code blue and then I came back and there was like a lot of people around. ..." 24When asked whether there was any discussion about the sign, Miss Wellfare gave the following evidence: "A: Not really a discussion but she kind of yelled at me a bit like 'why wasn't there a sign there', and I just said "I'm sorry I didn't, I wasn't putting my sign there, I actually was putting my sign somewhere else. I didn't know there was a spill." 25Miss Wellfare was cross-examined, first about the spill in the juice section. She had placed a trolley over the top of the spill to prevent customers slipping on it. It was put to her that she had fabricated the orange juice spillage and that it never happened, to which she replied "No". 26It was put to Miss Wellfare that she had come across the spill on which the plaintiff slipped and fell some minutes beforehand, which she denied. It was put to her that she decided to go and get a sign and again she denied that. 27Miss Wellfare did agree that it would be dangerous for staff to leave a spillage as there was a risk that customers would slip and injure themselves. She also agreed that that would be a breach of store policy. 28When it was put to her that that was exactly what she did on this occasion, she disagreed. She also disagreed that she was on her way to put the sign on the spillage where the plaintiff fell. 29Miss Wellfare was challenged about her version of the conversation to the effect that she said she was sorry and that she was putting her sign somewhere else. It was put to her that that never happened, with which she disagreed. 30It was put to Miss Wellfare that she had apologised to the plaintiff because she knew that she had caused her fall, and that she had told the plaintiff that she was on her way to put the sign next to where she fell. Both propositions she disagreed with. 31Miss Wellfare could not recall whether she was present when Mr Ikos, the store manager, arrived at the scene. She said that she was told to get a mop and bucket and left to get a cleaner and did not come back. It was put to her that she had been rebuked by the store manager as follows: "Q: Well did he then rebuke you that you ought not have left the spill that this woman was in the middle of, to go and get a sign, and that's what he said to you? A: No." 32Miss Wellfare also denied participating in a "huddle", a term describing safety meetings held with staff members at the defendant's premises. She had no recollection of such a meeting involving the plaintiff's accident and had no recollection of attending a meeting to discuss identifying hazards and what to do straight after them in the store. 33The defendant also called Mr Ikos, the store manager. He responded to the code blue call over the PA system and went to the designated area where he saw the plaintiff on the floor. He could not recall what he said, however, he did speak to the plaintiff. He directed employees to get cleaners, but did not recall speaking to Miss Wellfare at the scene. 34Mr Ikos gave evidence of the store's cleaning policy in place at the time. There was a store cleaner on duty whose responsibility was to spot clean any hazards that arose during the day. That cleaner was not in the store the entire time it was open. He was employed six to seven hours per day. Mr Ikos gave evidence that he was at the store on the day of the plaintiff's accident. In addition to that cleaner, "team members", in other words employees, were also required to spot clean as well and instructions were given to staff at safety meetings, referred to as "huddles", as to hazards being identified, cleaned and reported to keep the store safe. All employees were trained to clean. The induction process instructed staff to obtain a mop and safety cone to clean areas or if it was a small spillage, to use a paper towel. 35Mr Ikos was not cross-examined. The Plaintiff's Credit 36The defendant attacked the plaintiff's credit on three bases. The first concerned her earning capacity and work history. The plaintiff gave evidence in chief that at the time of her injury she was employed as a "para-planner", working four days per week on an annual salary of $60,000 per annum (pro-rated to four days). She had reduced her working week to four days so as to pursue a diploma in interior design at the International School of Colour and Design. At the time of her injury she was half way through that course. 37The plaintiff was asked in her evidence in chief whether she had ever returned to work, and her answer was "No". She gave evidence that she had tried to work from home but that she had suffered back pain which became so bad that she got headaches. She was in due course made redundant in October 2011 (see exhibit 1). When asked whether she could now do her job as a para-planner, her evidence was: "I could but with very reduced hours. I would need to be able to move around." 38She gave evidence that as long as she could move around she could do a couple of hours work per day. She gave further evidence in chief that her case manager at CentreLink had been assisting her in trying to find work in financial planning, working 8-12 hours per week, but that she had had no success so far. 39When asked what her interests were prior to her injury, the plaintiff gave evidence that her recreational interests were tennis and yoga, but she could not now play tennis and that her yoga had been affected, although she now did Pilates exercise for strengthening and stabilising. 40In cross-examination the plaintiff conceded that she had, prior to the accident on 22 July 2011, registered a business name "ReKreate Cakes", and an Australian Business Number. The nature of the business was making and selling cakes on-line and the business had a website and a Facebook page (exhibits 4 and 5). When it was first put to her that she was running a business, contrary to her evidence in chief, her answer was that it was "nothing official", that she was "randomly doing things for friends and family". 41When asked why she did not disclose the business her explanation was that she was making a few cakes for her nephews and that she had never made them alone. When confronted with the detail on her Facebook page which established that numerous cakes had been sold over a period of time, her explanation was that her ex-husband had set up the Facebook page and that in essence the purpose of the business was to help her emotional state. 42The plaintiff conceded that she continued to operate the business after she had moved to Melbourne in the middle of 2012, following the breakdown of her marriage. 43The fact that the plaintiff was conducting a business known as ReKreate Cakes was disclosed in the tax return for the financial year ending 30 June 2012, which had been served on the defendant's solicitors on 20 May 2013. That tax return disclosed a modest income with a high level of deductions claimed for the business. Notwithstanding that her own solicitors were armed with the knowledge of that business prior to the commencement of the trial, the evidence was not led from her. Nor did she disclose it to the Court when she had an opportunity to do so in her evidence in chief. No explanation was provided for her failure to do so, which left an impression that it was a deliberate decision on her part, and a dishonest one. 44The second basis for the defendant's attack on the plaintiff's credit was that the plaintiff had suffered pre-existing symptomatic low back pain but had mislead the Court by failing to disclose that. The attack was based on a notation by a physiotherapist, Ms Crapp (exhibit M). Those notes revealed that on 30 August 2010 she had complained of left-sided low back pain, having lifted an object two days beforehand. On 19 July 2011, three days before the plaintiff's accident, the clinical notes included the following note "LBP improved but still sore". 45The entry in exhibit M relating to 30 August 2010 went on to state that the plaintiff had been avoiding lifting since June of that year due to surgery which was unrelated to her back. Further evidence revealed that the plaintiff had undergone abdominal surgery in 2009 and that she had ongoing problems caused by adhesions following that surgery. She had no treatment from the physiotherapist in respect of her low back pain between September 2010 and July 2011. Whilst this evidence is a matter for me to have regard to in respect of the extent of the plaintiff's injuries, as discussed below, it is not a matter which I find impugns the plaintiff's credit. 46The third basis for the attack on the plaintiff's credit was whether she had mislead the Court when giving evidence in chief that she did not recommence her studies after the accident until just before the trial. This attack was based on email correspondence between the plaintiff and MLC Insurance, who had issued an Income Protection Policy to her in an email dated 12 October 2012 (exhibit 3). The plaintiff advised MLC that she had advised Dr Mitchell, a doctor who had examined her on behalf of MLC in April 2012, that she had commenced full time studies but that the return to prolonged sitting due to those studies had aggravated her back and sciatica and had caused her condition to worsen. Despite writing that email, the plaintiff denied the truth of its contents and contended that she had disputed with MLC the content of the report of Dr Mitchell and the history contained therein. 47The defendant had fully investigated the plaintiff's working, educational and medical background, and in the absence of any document supporting enrolment by her in full time studies, I accept the plaintiff's explanation and find that her credit was not impugned on the basis of the content of exhibit 3. 48A further submission was made by the defendant in respect of the plaintiff's credit in that in recent records produced by RMIT, where she is enrolled in a course in Melbourne, she had given the address of a friend which is not the address where she currently resides. I disregard that matter as being de minimis, and counsel for the defendant appropriately did not place emphasis on it. 49To the extent that the plaintiff's credit was impugned, my findings, as set out above, relate only to the assessment of damages in this matter. The effect of her failure to disclose the conduct of the business "ReKreate Cakes" is not a matter I have had regard to in determining the issue of liability in this matter. Determination of Liability 50The defendant conceded that it owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of injury to her. It is not in dispute that the plaintiff fell in the defendant's store at 4.50pm on 22 July 2011. I accept the plaintiff's evidence that she fell as a result of one of her feet coming into contact with water on the floor of the premises, adjacent to the freezer section. I accept the plaintiff's evidence that she saw water on the floor and that following the fall, her clothing was wet. I also accept Mrs Chand's evidence, which was not challenged, that she observed the back of the plaintiff's pants to be wet following her fall. That there was water on the floor is supported by the defendant's own evidence (exhibit U) that the area was mopped immediately by its cleaner. 51The defendant has submitted that I should accept the evidence of Miss Wellfare. First, she gave evidence that she was working in the juice section when she saw a spill on the floor there. It was that spill that caused her to walk through the freezer section where she did not observe any spillages. Having obtained a warning sign from the cream section, it was on her return to the juice section that she observed the plaintiff to fall, adjacent to the freezer section. The defendant submits that the spill that the plaintiff slipped and fell on had therefore occurred within a very short period of time and if I accept the evidence of Miss Wellfare, the plaintiff could not succeed. 52I do not accept the defendant's submissions. I prefer the plaintiff's evidence of the conversation that took place between her and Miss Wellfare set out in paragraph 11 above. It is not in dispute that Miss Wellfare apologised to the plaintiff, although the apology does not amount to an admission of liability (see s 69 of the Civil Liability Act 2002). Further, Miss Wellfare's version is not contained in the defendant's own incident report (exhibit U). Moreover, the plaintiff's evidence of her conversation with Mr Ikos, the store manager, referred to in paragraph 12 above, was not challenged by the defendant. The clear inference from that evidence was that the female employee concerned was Miss Wellfare, she being the first employee to arrive at the scene of the plaintiff's fall. The words attributed to her in that conversation are consistent with the plaintiff's evidence and were not contradicted by the defendant's incident report. That incident report went on to include the entries referred to in paragraph 20 above, which were also consistent with the plaintiff's version of the incident, and the need for training to avoid such incidents. Had an employee reported to the store manager that the substance on which the plaintiff had slipped had been on the floor for less than 40 seconds, that would have been a significant matter for the defendant's employees to record. They did not do so. I therefore do not accept the evidence of Miss Wellfare. 53The defendant submitted that the evidence given by Miss Wellfare that she did not observe "any spillages" in the area where the plaintiff fell was not challenged. Her evidence about the spillage in the orange juice section was challenged, and it was also put to her that she came across the spill in question some minutes before the plaintiff fell. Although she denied this, I am satisfied that it constitutes a joining of issues in respect of her evidence that she observed nothing on the floor in accordance with the principle in Browne v Dunn (1894) 6 R 67 (HL). 54I therefore find that Miss Wellfare did observe the water on the floor in the freezer section and left to obtain a warning sign to place there to warn customers of its presence. She may have been gone from that place for a short time, but it was long enough for the plaintiff to traverse the area and slip and fall on the spillage. Miss Wellfare conceded that it would be dangerous to leave a spillage in those circumstances and that that would amount to a breach of the defendant's store policy. 55I accept the evidence of Mr Ikos, which was not challenged, that the store's cleaning policy in place at the time of the plaintiff's fall, was as follows: (1)There was a store cleaner on duty whose responsibility was to spot clean hazards that arose during the day. (2)That cleaner was employed six to seven hours per day. (3)The cleaner was employed at the store on the day of the plaintiff's accident. (4)Employees were also required to spot clean as well when hazards were identified. (5)Instructions were given to staff at safety meetings known as "huddles": and (6)The induction process for employees involved them being instructed to obtain a mop and safety cone to clean areas where spillages occurred. 56I find that the floor in the freezer section where the plaintiff fell had last been cleaned at 2pm on the day of her fall. The cleaner, who was identified in the defendant's own documents, was not called by it to give evidence and I am satisfied that no cleaning took place in the freezer section in the two hours fifty minutes prior to the plaintiff's fall. By a process of probabilistic reasoning adopted by the High Court of Australia in Strong v Woolworths t/as Big W (2012) 246 CLR 182, I find that the water spilled onto the floor adjacent to the freezer section during that period of time. I find that it was identified by Miss Wellfare who left the scene to obtain a warning sign warning customers of the presence of the water. I find further, that in doing so, Miss Wellfare breached the defendant's own safety policy. 57The relevant risk of harm here was that of a member of the public, such as the plaintiff, slipping and falling on spillage on the defendant's supermarket floor. The harm was that such risk would result in serious injury. It is common ground that pursuant to ss 5B(1)(a) and (b) that the risk was both foreseeable and not insignificant. 58The precautions advocated by the plaintiff that the defendant should have taken against such risk was that it should have had a system in place so as to identify such spillages in a timely manner and to react in a timely fashion so as to warn customers of the presence of such a spillage and to clean it. Indeed, the defendant had such a system in place. The question here arises whether, in accordance with the general principles in ss 5B and 5C of the Act, the defendant breached its duty of care. I have had regard to the matters in s 5B (2) in determining whether a reasonable person would have taken the precautions advocated, and the principles set out in s 5C of the Act. There is no real dispute about those matters between the parties in any event. I therefore find that the defendant breached its duty of care to the plaintiff. 59The real issue here is one of causation. In determining causation pursuant to s 5D of the Act, I have to be satisfied of the two elements in s 5D(1)(a) and (b), namely, factual causation and scope of liability - see Adeel's Palace v Moubarak (2009) 239 CLR 420 and Strong v Woolworths, supra, [18] to [20]. In this case, I am satisfied that there was a breach by the defendant of its duty of care to the plaintiff, and that "but for" such breach, the plaintiff would not have suffered the injury she did. The defendant's breach was a necessary condition of the plaintiff's injury and I am therefore satisfied that factual causation has been established. I am further satisfied that, having regard to the nature of the defendant's supermarket business, it is appropriate for the scope of its liability to extend to the harm so caused by its breach. I do not accept the defendant's submission that a reasonable cleaning system was in place in the circumstances or its alternative submission that in the event of a breach no reasonable system would have identified the hazard. 60I am satisfied on the balance of probabilities that the defendant's cleaning system here did not respond adequately to the risk involved and that the spillage upon which the plaintiff fell was not identified and cleaned in a timely fashion. When the spillage was identified, the defendant's own safety system was breached by Miss Wellfare, who left the scene to obtain a warning sign. 61There will therefore be a verdict for the plaintiff in the proceedings. Damages 62The plaintiff was born in Fiji and attended primary and secondary schooling in both Australia and Fiji. She completed her Higher School Certificate in 2002 in Australia and was thereafter employed by AAMI Insurance as a contract sales operator within the compulsory third party section. She commenced starting a Bachelor of Business part-time but deferred her studies. In 2004 she commenced employment as a cadet accountant but after a short time decided that that was not a career path for her. In 2005 she worked for both AMP and Macquarie Bank and in 2006 was employed by Skandia. She commenced employment as a paraplanner in 2007 doing strategic and compliance work for Red Oak. This involved working in a seated position utilising a computer keyboard. 63The plaintiff married in November 2008. In July 2009 she commenced employment with CIB Private Wealth and in October 2010 she was employed by Genesys Wealth Advisers. At first she worked three days a week, which was increased to five days a week or full time work, and subsequently reduced to four days. She chose to work four days a week so she could take a day off to study interior design and had enrolled in a course at the International School of Colour and Design, which she was half way through at the time of her injury. It was her intention to work with either an architect or property developers as an interior designer. Her fallback position was to continue working in financial planning and to that end, in 2010 she had completed a Diploma in Financial Services at the Kaplan Institute by correspondence. She had also achieved a Certificate IV in colour design in 2010. 64Following her fall, the plaintiff was taken by her husband to the Castle Towers Medical Centre where she was medically examined. She was prescribed Voltaren and Panadol and advised to come back if the pain increased. Over the next few days she did suffer a substantial increase in pain in her lower back and on 1 August 2011 she was referred by her doctor for a CT scan which demonstrated slight bulging of the L5-S1 disc with evidence of impingement on the left L5 nerve root as it exits the foramen. She was treated conservatively with physiotherapy with some temporary improvement only. 65The plaintiff was referred to Dr R Elliott, Orthopaedic Surgeon, who examined her first on 9 August 2011. At that time he described her complaints as chronic low back pain radiating into the left leg with intermittent numbness. Her pain was aggravated by sitting, standing and coughing and was partly relieved by heat. Dr Elliott recorded "there is no relevant past history". He reviewed the CT scan of her lumbar spine and confirmed the small disc bulge at L5-S1 centrally and to the left. He recommended conservative treatment but if she did not improve was to arrange an MRI scan for her. When next reviewed on 1 September 2011 she was no better and was having increased left-sided sciatica with some numbness. Dr Elliott referred her for a MRI scan. That scan was reported on in his report dated 13 September 2011. It confirmed minor bulging at the L5-S1 disc but did not "seem to cause any neural impingement". Dr Elliott recorded her as slowly improving, but still had some numbness and tingling in her leg when she sits down. 66He concluded: "I am unclear as to why this is occurring, but I think she could return to work as from the 19/9/2011. Overall the prognosis is good and I have returned her to your care." 67Dr Elliott's three reports were relied on by the defendant (exhibit 11), together with reports of Dr D Shan and Dr I Barrett. Dr Shan diagnosed an Adjustment Disorder with aggravation due to her marriage breakdown. Dr Barrett was of the opinion that she was incapacitated for work for eight weeks following the accident, when she could have returned on restricted duties. By July 2012 he opined that she was fit for her pre-injury duties. 68Notwithstanding those reports, the plaintiff gave evidence that she continued to suffer low back pain which was treated with physiotherapy and rest. Following her move to Melbourne in mid 2012, she continued having physiotherapy once per week, as well as doing exercises at home. She gave evidence that she was not really ever pain free but that she had learnt to tolerate the pain. Over the last six months she believed that she had been improving a bit, however, albeit slowly. 69When asked about her emotional state she said: "A: Well I can't do the things I used to do, so as a result of it, I feel like I am just not good enough any more, so that does wear, like put a toll on you as a person ..." 70Her injury affected her relationship with her husband, she became very moody and the marriage broke down. That caused her to move to Melbourne to live with her brother and sister-in-law. 71Prior to her injury, as well as working four days a week, the plaintiff gave evidence that she did the majority of the housework, as, for cultural reasons, "being an Indian wife", it was expected of her. Following her injury she was unable to do the heavy cleaning work and her capacity to do housework generally reduced to almost nothing. She could not do her laundry or ironing and could only do basic shopping. Her husband had done most of the outside work but her evidence was that following the injury he spent two hours per day, seven days a week, doing household chores that she had formerly attended to. He was not able to do them to her standard which led to disputes. 72At the time of the injury the plaintiff and her husband were renting a three bedroom, two-bathroom home. Within a short time they moved to a twobedroom apartment. The plaintiff gave evidence that her husband still attended to the same amount of housework, namely, two hours per day, until they ultimately separated in June 2012. (Her ex-husband was not called to give evidence). 73Since her move to Melbourne, the plaintiff gave evidence that she did little in the way of housework, which her sister-in-law attended to. 74The plaintiff gave evidence that in the future she intended to pursue a career in interior design. Once she got stronger she intended to get a job, move out and live independently. She gave evidence that she would however need help with household chores such vacuuming, cleaning floor, cleaning bathrooms, washing and ironing. 75In respect of her emotional state, the plaintiff gave evidence that she did not think that she was the same person. She was quieter, moodier and not as energetic and bubbly as she was prior to the accident. Her recreational interests were tennis and yoga and she could not play tennis now. When asked whether she would have psychological treatment recommended by Dr Clarke, she reluctantly agreed. 76As set out above, the plaintiff's credit was attacked in crossexamination. To some extent that attack was successful in that she ought to have disclosed to the Court her business ReKreate Cakes which she had registered and was clearly pursuing. For that reason alone, the plaintiff's evidence has been treated with some caution and where it is inconsistent with other objective evidence, that evidence is to be preferred. 77As also set out above is the plaintiff's medical history was challenged and it was submitted that she had suffered a pre-existing low back injury which was symptomatic at the time of this accident, and therefore her injury constituted an aggravation of that pre-existing symptomatic injury. I do not accept that was the case. The plaintiff had had previous gynaecological and abdominal surgery, following which she was advised not to lift. She suffered abdominal and back pain for which she received some treatment from a physiotherapist. She had had no treatment in respect of her low back for the year prior to the injury and the reference in exhibit M to her low back being "still sore" three days prior to the injury is left somewhat unexplained. 78The defendant bears the evidential burden of proof in respect of this issue - see Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. I am not persuaded on the balance of probabilities on that evidence that she suffered a pre-existing symptomatic low back injury. 79The plaintiff was also challenged about her emotional state and her need for counselling. It was put to her that she had seen a counsellor, Shelly Jackson, on 29 June 2012 and that notwithstanding that a large number of matters had been raised, she did not suggest for one reason that a cause of her marriage breakdown was the injury suffered by her in the fall. That contention was rebutted by Ms Jackson's clinical assessment note (exhibit B) which recorded "also off work due to back injury". 80It was clear from the evidence that there were cultural difficulties in the marriage arising from a clash of values between her and her husband's family. The plaintiff described herself in the following terms: "I was depressed and emotional. As an Indian girl if you can't cook and clean you are no longer a good wife." 81The plaintiff was adamant she had definitely changed since she had hurt her back in the fall and her marriage had been affected by that. 82In re-examination the plaintiff explained the cake making business on the basis that she had always enjoyed baking, that it was done more for the benefit of her own self-esteem than anything else and that her friend Steph Mikhail had helped her with baking prior to her injury and after her injury she did not do any of the actual baking herself. She designed the cakes which were cooked by Ms Mikhail and the customer paid her friend directly. Ms Mikhail was not called to give evidence. 83The plaintiff's mother gave evidence that prior to the accident the plaintiff's personality was that of a very bubbly, very happy girl, who loved the elderly and her father. She had been visiting her daughter from Fiji at the time of the accident and extended her stay to assist her at home with cooking and washing. She left two to three weeks after the accident and described the plaintiff at that time as "slowly improving". 84The plaintiff's sister-in-law, Mrs Deepa Chand, also gave evidence. Mrs Chand described the plaintiff as being "really social" before the accident. She said she was an outgoing family orientated happygolucky person. When asked whether she observed any changes in the plaintiff following the accident she described her as being "very sad and a little bit depressed". 85Mrs Chand volunteered that she had assisted the plaintiff baking five to six cakes, but that the plaintiff would do the design of the cakes. In crossexamination it was put to Mrs Chand that she had exaggerated her evidence as to the plaintiff's capacity for household chores and that in fact she did a lot more, which she denied. It was put to Mrs Chand that the plaintiff was totally capable of looking after herself and she conceded that she was improving with physiotherapy. The reason for her move to Melbourne was to obtain emotional support from her family following her separation from her husband. 86The plaintiff relied on reports from her treating GP in Melbourne, Dr Cooray, to establish continuing complaints of back pain from July 2012 until the end of that year. She also relied on a report from Dr Bodel, Orthopaedic Surgeon, who diagnosed a minor disc injury at the lumbar sacral junction as a result of the fall and that she would be able to return to work full time in financial planning and her study program within 612 months from April 2012. Dr Bodel's opinion was that she required household maintenance and cleaning assistance for three hours per week from the time of the fall "for a period of about 6 months" and would require ongoing two hours domestic assistance for "at least the next 6 months". In a report dated 8 April 2013 Dr Bodel was of the opinion that her prognosis remained guarded and that she would require two hours domestic assistance per week indefinitely as a consequence of her injury. 87The plaintiff also relied on a report of Dr Peter Conrad dated 10 May 2012. He was of the opinion that she suffered an injury to her L5-S1 disc, that she would be able to do clerical or office-based work as a financial planner with reduced hours commensurate with her symptoms and that she could not lift more than 5 kilograms in weight. Dr Conrad stated that she "might need some 6 hours per week of home care assistance". In his subsequent report dated 9 April 2013, he regarded her as fit for 15-20 hours per week office work with lifting restrictions and again that she "might need about 6 hours per week of home care assistance". 88Dr T Clarke, Psychiatrist, also examined the plaintiff and provided a report dated 11 April 2012. He was of the opinion that she suffered a posttraumatic stress disorder following the accident with persistent migraines, that she was quite depressed and at times panic stricken. Dr Clarke recommended treatment with a psychiatrist over 9 months, attending every two to three weeks at $400 per session, as well as medication that would cost in the region of $400 per month. He did not explain what medication that was. In a report dated 10 April 2013 he reported little change and stated that the plaintiff still suffered chronic depression which was part of her post-traumatic stress disorder. He recommended the same treatment regime. 89The plaintiff tendered a Schedule of Damages which set out her claim as follows: (a) NEL 30% $123,000.00 (b) Treatment expenses $9,297.50 (c) Future treatment expenses $30,000.00 (d) Past wage loss 2 years at $770 nett per week $80,080.00 (e) Past loss of superannuation $8,808.00 (f) Future wage loss $191,675.00 (g) Future loss of superannuation $27,275.00 (h) Past domestic assistance 7 hpw, for 2 years at $25 per hour $18,200.00 (i) Future domestic assistance 6 hpw, $40 per hour for 59 years 240 x 1009.3 $242,232.00 Total $607,690.50 90The defendant's submissions on damages as set out above were that she had aggravated the pre-existing, already symptomatic condition and required no ongoing treatment. The defendant's submissions advocated the following assessment: Non-economic loss - 20% of a most extreme case $18,500.00 Out of pocket expenses $7,019.51 Future treatment expenses Nil Past economic loss 22/7/11 to 31/12/11 @ $550 per week $13,750.00 Past superannuation 11% $1,512.50 Future economic loss - allow buffer Future superannuation Past care Nil Future Care Nil Assessment of Damages 91I find that the plaintiff suffered an injury to her low back involving a small disc protrusion at L5/S1 level with nerve root impingement on the left side which caused her chronic low back pain with left-sided sciatica for some time. That injury was confirmed by the CT scan referred to in paragraph 64 above. The plaintiff had restrictions in all of her work, domestic and recreational activities and has suffered a reactive depression diagnosed by Dr Clarke as a Post Traumatic Stress Disorder. I prefer the evidence of Dr Cooray and Dr Bodel as to the plaintiff's ongoing back pain, notwithstanding that that is not supported by her own treating orthopaedic surgeon, Dr Elliott. The plaintiff has enjoyed some improvement in her condition following her move to Melbourne in the middle of 2012. I assess her damages for non-economic loss at twenty-five per cent of most extreme case pursuant to s 16 of the CLA, and therefore award six point five per cent of the maximum proscribed amount, $35,000. 92The parties disagree in respect of the plaintiff's claimed treatment expenses over a sum of $1500 for treatments to her neck by a physiotherapist. Senior Counsel for the plaintiff in submissions stated that the plaintiff does not insist on recovery of the amount for neck treatment and I find that it is not related to her low back injury suffered in the fall. I also disallow the sum of $340 claimed for marriage counselling. Treatment expenses are therefore awarded in the sum of $7,460.00. 93For future treatment expenses I find that the plaintiff's claim is overstated. I award the sum of $10,000 to provide the plaintiff with the course of psychotherapy referred to by Dr Clarke, together with ongoing physiotherapy and supervision by her local medical officer in Melbourne over a period of twelve months. 94The plaintiff has claimed past wage loss over a period of two years at $770 net per week. The defendant's case is that the plaintiff's claim for past wage loss should be confined to the period from the date of accident until the end of 2011, consistent with Dr Barrett's opinion. The defendant also submits that the plaintiff never in fact earned more than $550 net per week, based on her income tax returns. I accept that the plaintiff did have an earning capacity of $770 net per week at the time of her injury in that she had chosen to work four days a week to pursue a course of study to provide her with alternative employment options. Her salary was based on an annual salary of $60,000 per annum, on a pro-rata basis, for four days a week. I am not however persuaded that her economic loss has been a total loss since the time of the accident. I accept Dr Bodel's opinion that the plaintiff had suffered a minor disc injury as a result of the fall and that she would have been able to return to full time work in financial planning, and her study program, within six to twelve months from April 2012. I therefore award past wage loss as follows: 22 July 2011 - 30 June 2012, say 50 weeks at $770 net per week $38,500.00 1 July 2012 - 11 July 2013, say 54 weeks at $385 net per week $20,790.00 Sub-Total $59,290.00 I award past superannuation at 11% of the above amount, $6,521.90 $6,521.90 Total $65,811.90 95I round off the award for past wage loss and superannuation entitlements to $65,800.00. 96For future economic loss, I do not accept the plaintiff's capacity for work has been diminished to the extent that Senior Counsel for the plaintiff had advocated on her behalf. The plaintiff's claim is based on a diminished earning capacity of one-third over the rest of her working life of $250 per week. I accept that the plaintiff's studies have been interrupted and that she has had some difficulty with sitting and working at a computer terminal as a result of the low back injury. However, I do not accept that her earning capacity has been diminished as advocated by her Counsel, nor do I find that her loss is capable of arithmetic calculation. 97Section 13 of the CLA provides as follows: "13 Future Economic Loss - Claimant's prospects and adjustments (1) A Court cannot make an award of damages for future economic loss unless the claimant first satisfies the Court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a Court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the Court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which the damages were adjusted." 98I find that the claimant's most likely future circumstances are that she will complete her present course of study and obtain work based on her qualifications. She will further supplement her income by pursuing her online cake selling business. If she is unable to obtain employment based on her qualifications, she will be able to obtain clerical work in the financial planning industry. To the extent that her earning capacity has been diminished and her return to the workforce delayed, this is an appropriate case for the award of a lump sum as a buffer - see Penrith City Council v Parks [2004] NSWCA 201 and Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 44. Such an award requires no further adjustment pursuant to s 13(2), but may take into account also lost superannuation entitlements. I make an award of $55,000 for this head of damages, to include any lost superannuation entitlements. 99Section 15 (3) of the CLA provides: "15 Damages for gratuitous attendant care services: general ... (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the Court is satisfied that: (a) There is (or was) a reasonable need for the services to be provided, and (b) The need has arisen (or arose) solely because of the injury to which the damages relate, and (c) The services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided); (a) For at least six hours per week, and (b) For a period of at least six consecutive months." 100I am not satisfied on the evidence that the plaintiff has met the threshold set out in s 15(3) above. She and her husband moved from their threebedroom home to an apartment within a short time of the injury. I do not accept her evidence that thereafter he provided her with two hours domestic assistance each day. In fact, he was away from home with his work, both interstate and internationally, regularly. Here, neither the lay evidence of gratuitous care provided to the plaintiff nor the expert medical evidence, (i.e. Dr Bodel, who opined that she required two hours per week) satisfied the threshold test contained above. I do not accept Dr Conrad's opinion that "she might need some 6 hours per week of home care assistance" as evidence that satisfies the threshold test in s 15(3). `In those circumstances, I am bound not to award damages under this head - see Miller v Galderisi [2009] NSWCA 353. Further, I am not satisfied that the plaintiff will require commercial care into the future with heavier household chores as claimed by her. I therefore decline to make an award of damages for future domestic assistance. This is not a case where the lay evidence established a need for such services - see Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343. 101I therefore assess damages as follows: Non-economic loss $35,000.00 Treatment expenses $7,460.00 Future treatment expenses $10,000.00 Past wage loss including lost superannuation $65,800.00 Future economic loss $55,000.00 Total $173,260.00 Orders 102I make the following Orders: (1)There will be a Verdict and Judgment for the Plaintiff against the Defendant in the sum of $173,260.00. (2)I order the defendant to pay the plaintiff's costs of the proceedings. (3)I order the exhibits to be returned forthwith. (4)I grant liberty to the parties to apply on seven days notice for a special costs order if required. 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: 12 August 2013