District Court New South Wales Medium Neutral Citation: Pavlis v Wetherill Park Market Town [2013] NSWDC 331 Hearing dates: 21, 22, 23 May 2013 Decision date: 27 May 2013 Before: OLSSON SC DCJ Decision: Verdict for defendants Catchwords: s 5B Civil Liability Act - foreseeability of risk of harm - reasonable response to appreciation of risk - evaluation of medical evidence Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 Category: Principal judgment Parties: FOTINI PAVLISS (Plaintiff) WETHERILL PARK MARKET TOWN (First Defendant) PRETTI REAL ESTATE (Third Defendant) Representation: Mr J Rowe (Plaintiff) Mr J Gracie (First Defendant) Mr J Sheller (Third Defendant) Gajic Lawyers (Plaintiff) McCabes Lawyers (First Defendant) Argus Lawyers (Third Defendant) File Number(s): 2011/64894 Publication restriction: No Judgment 1The plaintiff, Mrs Fotini (Fay) Pavlis, moves on the Further Amended Statement of Claim filed on 30 September 2011. 2The claim arises from a fall suffered by Mrs Pavlis on 4 October 2009 as she was approaching an automatic teller machine (ATM) owned by the former second defendant when situated at premises owned by the first defendant, Wetherill Park Market Town. 3Those premises ("the shopping centre") were managed at all material times by the third defendant, Pretti Real Estate. 4Both liability and quantum are in issue. 5The case has a slightly unusual background which it is necessary to record. The matter was listed for hearing in October 2012. It commenced before another judge of this Court. On the second day of the trial, the plaintiff collapsed in the witness box during cross-examination and was taken by ambulance to hospital. The matter was necessarily adjourned but subsequently, the judge disqualified herself from further hearing the matter. It was relisted in May this year and came before me. The parties requested that the matter proceed as part heard and, accordingly, I read the transcript of the plaintiff's evidence and the exhibits that had been tendered. Thereafter, the trial continued in the usual way. 6Mrs Pavlis gave some further evidence in-chief relating to the pain that she says has developed in her left hand, and she was cross-examined. Evidence of the plaintiff 7Mrs Pavlis, who was born on 18 July 1962 and at the date of the accident was forty-seven years of age, said that she migrated with her parents from Greece when she was twelve. She attended school in Australia. She commenced working whilst she was still at school. Apart from seven years working as a layout person for a newspaper, she has mainly worked as a packer. She was married within a year or two of leaving school. After leaving school, she worked fulltime from about 1980 until 2009, taking just a matter of months off when her children were born, and taking three to four years off work when she had a back injury in 2009. 8As a result of the injury she lost her job and was unemployed for about four years, until 2003. She received a lump sum of compensation for the injury and that money had been invested with a person who either lost it or misappropriated it. As a result, she and her husband had become bankrupt and lost their house. She became very depressed, although she recovered from that depression when she went back to work. The house that they currently live in is owned by their son, Pantelis. 9The plaintiff said that on 4 October 2009 at about 10am she parked her car in the Wetherill Park Shopping Centre car park and walked along a footpath in the direction of the St George ATM. It was a shopping centre she had frequented on previous occasions. It was, or had been raining and the pathway was wet. She said that because of the rain she was taking care. She was wearing flat shoes. As she approached the ATM, her right foot slipped and she fell to the ground. She said that she needed about "two steps to go to the ATM". She marked where she fell on a photograph. 10She said her right leg went backwards and she put her hand down to prevent her head hitting a pole. She said her right knee and hand took the force of the fall. She said that although she was shocked she was able to get up and attempt to use the ATM, however she blacked out and collapsed to the ground. Some people in the shopping centre attended upon her and someone called an ambulance. She was conveyed to hospital. 11The X-rays taken at hospital showed that she had fractured the distal radius; in fact, there were three fractures. She was given a cast and a sling. 12Two weeks later, she saw Dr Fitch, her GP. She had further X-rays that showed a comminuted impacted fracture of the distal radius. It was placed in a cast which remained in place for about eight weeks. 13She said she was not able to return to work as a packer and she lost her job. This upset her because she derived a lot of satisfaction from her job and her ability to perform it well. 14She said that she has ongoing problems with her wrist, principally pain and weakness; it prevents her from working and it prevents her for performing household duties. 15She was referred to Dr Kai, an orthopaedic surgeon. He noted the X-rays revealed a healed distal radius fracture with no angulation and some osteoarthritis in the joint in her thumb. Otherwise, the radiology was unremarkable. 16The symptoms did not abate and she went back to Dr Kai in April 2010 when he noted numbness in three fingers. He referred her for a bone scan and an MRI that showed evidence of synovitis and post-traumatic carpel tunnel syndrome. She reported right shoulder pain at this appointment. She had not previously complained of right shoulder pain to him. She had arthroscopic surgery on her shoulder in which a slight tear to the supraspinatus was debrided. Dr Kai told her she might need surgery for the carpel tunnel syndrome, although this has not been followed up. 17Mrs Pavlis said she obtained little relief from the surgery and, in fact, developed pain in her neck. 18She says she does not like and does not take pain-relieving medication; she takes something to help her sleep. In the past, but apparently not presently, she has taken antidepressants. 19Mrs Pavlis said before the accident she was very active and liked to go out and to dance. She enjoyed cooking. She did a lot of housework for her family and derived enjoyment and satisfaction from it. She was proud of the fact that she contributed to the household income, in particular, because her husband, although he is employed, has had several bouts of serious ill health, including a heart attack and surgery, and a stroke. 20In terms of her future, she made an application to Centrelink to get a disability pension but it was rejected and she is presently on Newstart. She has applied for jobs as a packer and she is intending to undertake a rehabilitation program in the near future as required by Newstart. The evidence was that rehabilitation program would happen in January 2014. 21I accept that the plaintiff left her car and proceeded via the footpath to the ATM in a direct route on 4 October 2009. I accept that she was undistracted and keeping an appropriate look-out for her own safety in the process. I accept that the plaintiff slipped as she approached the ATM on the wet painted surface. 22It was put to her that she was looking in her purse for her access card as she approached the ATM, which she denied. I accept her denial, but even if that were not so, such an activity is well within the scope of ordinary everyday activities, and I do not think it would constitute a failure to have due regard for her own safety. 23I would, therefore, make no finding of contributory negligence. 24Mr Pavlis gave evidence. He said that he used to help with the household tasks, including cooking, before the accident, but now he does a lot more. The impression I have is that he does the heavier tasks such as lifting dishes and pans in the kitchen, and the washing basket and so on. He said he did the gardening work, and had done it before the plaintiff's accident. I thought he was sincere and candid. He said his wife was a good cook and enjoyed cooking. She does not do that now. She does not go out much. She does not worry about her clothes or appearance. She is unhappy, he said. He said she tries to help around the house but cannot do much. He said she drives but only drives short distances. She gives instructions on the grocery shopping rather than participating. He said she complains of pain. He agreed that everyone in the house pitches in to help with things that need to be done. 25Ms Anna Pavlis, the plaintiff's daughter, gave evidence. She said that after her mother recovered from her back injury in 2003 and got over her depression, she was a happy, fine and normal person, who would go for walks, go to the hairdresser, and generally was of pleasant disposition. She said she would do all the household work and liked to cook but now does very little. She said she does not take care of her appearance now. She said, "Physically and mentally it has ruined her" - that is, the accident. She said that she complains of pain and cries a lot. She does very little around the house: no ironing, cleaning, bathrooms and so on. 26Mr Pantelis Pavlis, the plaintiff's son, gave evidence. His evidence was consistent with that of his sister and father. He said that his mother has changed from a happy outgoing person to one who is very unhappy, complaining of pain, and unable to do anything around the house. 27It is clear from the evidence that the plaintiff and her family have a strong work ethic, are hardworking, and are a cohesive and loving family. Their evidence was consistent, not shaken in cross-examination, and I had the impression that it was sincere. Medical evidence 28Dr Fitch is the plaintiff's GP. She saw him after the accident in October 2009. He recorded that she had pain in her wrist. He wrote medical certificates for her. On 24 November 2009 he recorded the fact of the fracture, and found the area still tender. She did not complain to him of any other problem but was referred to Dr Kai Lee because of the ongoing pain in her wrist. 29Dr Fitch's certificates were in evidence. They recorded wrist pain as the reason that she could not return to work. The certificates are dated from 24 November 2009 until 19 April 2010. The latter certificate said the plaintiff would be unfit for work from 30 April until 31 May. Thereafter the certificates refer to the shoulder pain as well as the wrist pain. 30Dr Kai Lee reported in November 2009 that the pain in Mrs Pavlis' wrist subsisted and she could not move her fingers. He referred her for physiotherapy which she undertook. In April 2010 Dr Kai Lee noted that she was complaining of numbness and pins and needles in her right hand. There was numbness in three fingers. The MRI showed synovitis but the wrist itself was not too painful. He thought she may have post-traumatic carpel tunnel syndrome which might require surgery. He noted she had a problem with her right shoulder and he referred her for radiological examination of it. 31Dr Kai Lee also reported in November 2010. He said she continued to have a problem in the right wrist and shoulder. The plaintiff had nerve conduction studies which did not confirm carpel tunnel syndrome. She had an MRI scan of the right shoulder showing bursitis and a partial tear of the rotator cuff. The MRI of the wrist showed synovitis. Dr Kai Lee thought the injuries were caused by the incident although he did not elaborate that opinion or upon the delay in onset of shoulder symptoms. 32He thought Mrs Pavlis was permanently incapable of returning to work since the only duties to which she was accustomed were manual and required the use of her right hand. He thought she required at least eight hours a week assistance, domestically. 33The plaintiff was referred to Dr Teychenne, a neurologist. In his March 2010 report he noted that she did not have any pain on movement of the neck, but did note that she said that three weeks after the accident she had noted pain around the right shoulder. I interpose to say that there is no record of her having told anybody else about that until she mentioned it to Dr Teychenne in March. Dr Teychenne thought that the shoulder problem may have occurred if she had abducted the right arm up at the shoulder in the accident, and he thought it worthwhile obtaining the opinion of an orthopaedic consultant. 34Dr Bodel, an orthopaedic surgeon, saw the plaintiff in December 2010. He thought the fall was consistent with a soft tissue injury to the neck/rotator cuff injury to the right shoulder, and fracture of the radius. He thought her disabilities were likely to continue indefinitely, and required six hours domestic assistance indefinitely per week. He did not elaborate on what might be performed in those six hours. 35Dr Teychenne reviewed the plaintiff in January 2013, in particular in relation to the complaint of pain in the left hand. He recorded that she told him that after the plaster cast was removed in January 2010 (in fact it had been removed the previous November), she had noted constant pain over the right shoulder and neck and this pain had persisted. 36There is no evidence that she had mentioned that pain to anyone at the time. 37She told Dr Teychenne in 2011 that after using her left hand for a period of time, she began to notice pain in the left hand. Her complaints regarding the right hand caused Dr Teychenne to consider that she had carpel tunnel syndrome. He thought she would not be able to return to work as a packer, and since she did not have the qualifications to do anything other than packing, or labouring, she was unlikely to be able to return to work. 38He thought that the prognosis in relation to the carpel tunnel syndrome was guarded, and may require, or could require, a decompression of the right median nerve. He thought she would require sixty per cent domestic assistance for heavy domestic duties. 39Dr Mahony, orthopaedic surgeon, in his report of February 2010 made no mention of shoulder pain or symptoms. He also recorded in the history that was given to him by the plaintiff that there was "no history of any added accidents or serious injuries". The plaintiff did not tell him of her previous back injury. He did not record that she could not move her fingers but only that she had pins and needles and some numbness in her right hand on some occasions and lacked full movement. He noted that she was wearing a wrist cast held by a firm metal brace. On examination, he could find no abnormality. There was no complaint of shoulder pain or anything else to him. 40Dr Schultz, consultant surgeon, saw the plaintiff in August 2011. His opinion was that the fracture of the radius had recovered satisfactorily and the reason for the continuing symptoms to the extent claimed was not clear. He said there were some signs to suggest the possibility of chronic regional pain syndrome, but those signs were also consistent with disuse. 41He said that the symptoms in the right shoulder and neck and left wrist were first reported three months, seven months and two years respectively after the accident. He said that had they been due to the accident, he would have expected there to have been symptoms within days to a week. In particular, he was of the view that the right shoulder had a degenerative condition and was not related to the accident. He said there was no evidence of a neck injury from the accident and radiology showed multiple facet joint pathology in the mid to upper cervical region as the probable cause. As to the left wrist, there was no abnormal pathology on investigation. Dr Schultz's report of 3 August 2011 is detailed. He is the only doctor to consider in any detail the aetiology of the accident and her symptoms. 42The plaintiff was examined by two psychiatrists, Dr Leonard Lee and Dr Eli Revai. For reasons that are not clear, on the first occasion the plaintiff saw Dr Lee she did not tell him that she had previously suffered a depressive episode or episodes when she hurt her back at work and was not able to work for a period of years, nor the fact that she and her husband were made bankrupt. Dr Lee said in his 2010 report that the accident had caused Mrs Pavlis to suffer depression and anxiety, although she had not been prescribed medication for that condition. He thought she required referral to a consultant psychiatrist. 43In his report of May 2011 he affirmed his view that the injury had caused her to suffer chronic pain with consequent major depression. He thought she needed assistance of two to three hours a day as well as referral to a psychiatrist. 44Dr Leonard Lee reported again in November 2012. He had been provided with the transcript of the evidence that Mrs Pavlis gave in court last October in which she referred to her history of psychological problems. He was asked to review his opinion. He noted that she said that after her back injury and bankruptcy she was "overcome by depression." He was also told that she had been seeing a psychologist after the current accident until Medicare funding ran out. She told Dr Lee she was depressed because she lost her job because her hand was not improving. She told him she was presently taking an antidepressant and also that she had not told him about the earlier episode of depression because she had "forgotten about it". His view was that she was likely to have long-term depression in relation to her symptoms. He thought she required continued assistance from her daughter and family. He thought she would require continued psychological intervention and antidepressant medication. He said he had reflected on his previous opinion given the changing factual matters, but would not change his opinion if the current version of events given to him was accurate. 45Dr Revai reported in July 2011. He thought it was feasible that Mrs Pavlis had become depressed again but could not understand why, if that was the case, she had not been treated for it. Somewhat dismissively, in my view, he noted that she said she was taking fifty milligrams of Endep (an antidepressant) to help her sleep. He thought that dose would have no therapeutic effect but may act as an analgesic. He said he could not satisfy himself that she was depressed. Rather, he said, although her history was rather tragic, she impressed him as being stoic. He said that if she was as disabled as she claimed, she should have psychiatric treatment and attend a pain management clinic. He said the other possibility is that she would not "give up" her symptoms until "she has had her day in court". 46None of the doctors were called for cross-examination. This makes an assessment of their evidence very difficult. Except for Dr Schultz, they all make generalised statements about the cause of the symptoms without any detailed analysis. To some extent, of course, detailed analysis is not possible since they did not attend the accident and are constrained by the history given by the patient. But in this case, where the first complaints about shoulder pain come some months after the accident, the paucity of recent opinion becomes critical. 47Dr Teychenne, for example, thought the shoulder problem might have been causally related to the accident if she had abducted her arm in the fall. The problem is that no one knows whether she did or not. She did not complain of shoulder pain at the time and did not describe to anyone that her shoulder was implicated in the fall. Rather, she emphasised that the brunt of the fall was taken by her wrist and arm and that is where she felt the pain. Dr Schultz thought that the shoulder problem was a result of degeneration of the shoulder. 48The evidence of the psychiatrists is similarly troubling. Dr Revai plainly thought the plaintiff was embellishing her symptoms. He was not satisfied she was depressed. Dr Lee thought that she was, even allowing for the fact that she had omitted the significant part of her history when she first saw him. He seems to have stopped short of making a clinical diagnosis of depression, however, he said that it was likely she would have a long-term depression. 49The evidence of her family seems to be consistent of that of depression. I believed her family members when they said she was not the person that she was, that she was unhappy, sad, did not go out and took little care of her appearance. It seems to me that that is consistent with what happened to her when she had her back injury in 1999. Discussion 50What is the Court to do in these circumstances? I can only apply the test of whether I am satisfied on the balance of probabilities that the shoulder problems and neck problems were caused by the fall, and I am not. Had the medical practitioners, for example, opined that sometimes there is a delayed onset of symptomatology or pain in rotator cuff type injury and that a late onset of symptoms is quite consistent with it having been caused by the fall, that would be one thing, but they did not. As it is, I am left with Dr Schultz who says that the shoulder and neck problems are consistent with ageing and degeneration and I am left with the plaintiff who does not mention the symptoms until March 2010 at the earliest, some four to five months after the accident. 51I find on the balance of probabilities that the shoulder problem was not caused by the accident. 52In terms of the carpel tunnel syndrome, Dr Teychenne's view was that it was probably caused as a result of the fall but at present surgery is not indicated. 53I am not satisfied on the evidence that Mrs Pavlis had developed a problem with her left hand as a result of the relative overuse of it. Indeed, I am not satisfied the plaintiff is significantly disabled in the use of her right hand. It may be that she continues to have pain, numbness or pins and needles but that is a different matter from saying that it is not capable of being used. 54In terms of psychiatric injury, I am satisfied that the accident caused the plaintiff to become depressed and I accept Dr Leonard Lee's opinion in that regard. 55In terms of domestic tasks, I have no hesitation in accepting that the plaintiff required a lot of assistance, both personally and in household tasks, in the period between the fall and the time the cast was removed at the end of November 2009. The medical evidence is that she continued to have pain and tenderness after that and was referred for physiotherapy. I accept that she continued to need and continued to accept help from her family in personal household tasks for a period after that. Defendants' evidence 56Turning to the defendant's evidence, Mr Pretti of Pretti Real Estate gave evidence by statement and orally. His company was, at all material times, the managing agent for the shopping centre. It had had a long-standing arrangement with the owners of the centre, an arrangement that subsists to the present day. Amongst other things, Mr Pretti arranged for the cleaning, maintenance and repair of services at the premises between January 2009 and the end of December 2009 by a number of different people or companies, and Pretti arranged for payment of those services. Mr Pretti said that he regularly met with tenants every three to four months and discussed any concerns or issues they had. There were no complaints relating to the walkway. 57Relevantly, Pretti arranged and paid for the tiled surface at the exterior of the shopping centre to be painted with a paint that contained a non-slip additive and compound. This was done in April 2009, less than six months before the plaintiff's accident. 58Domaine Carpet and Pressure Ltd were paid by Pretti, from rents received by them, for the high pressure cleaning of the footpath in front of the shopping centre, and the painting and sealing of the relevant area. Their invoices were in evidence, as were evidence of payments made to them. 59Colourtone Stencil Systems Pty Ltd provided an invoice to Domaine dated 7 April 2009 for materials which included non-slip powder. They also supplied sealer lustre and anti-skid assistance powder. That invoice was dated 16 April 2009. I have no hesitation in accepting this evidence, that the exterior tiles were painted with a paint which included anti-skid assistance powder and a non-slip additive and that this was done in April 2009. 60Mr Pretti said that he had this work carried out in consultation with the owner and that the owner had not specified the paint except to insist that it be non-slip. I infer that the surface was painted with non-slip paint because both the owner and Pretti apprehended that there was a risk that the tiled surface was slippery when wet. 61Mr Trimboli, the director of the first defendant, did not give direct evidence. A statement made by him in 2007 was tendered. In it, he said his company maintained a centre management office but it was not always staffed and that a cleaner and caretaker were employed fulltime, at least in 2007, on site. He confirmed that Pretti had been the managing agent since 2003 and that they inspected it and advised him if repairs or maintenance were required. He said he was not aware of anyone having slipped on the tiled walkway. 62Indeed, critically, in my view, there was no evidence that anyone had slipped in that area, either before the plaintiff's accident or since. 63Expert evidence was given by Mr Neil Adams and Dr John Cooke. There was also in evidence a report from a Mr Strautins for the former second defendant. It was broadly consistent with Dr Cooke's report. Both experts conducted examinations of the external walkway and took measurements to ascertain slip resistance by reference to Australia/New Zealand Standard 3661. 64Six months before the accident, the relevant standards gave advice on the selection of a suitable class of pedestrian surface for an external colonnade such as the area under present consideration. A class W surface was recommended. A class W surface has a minimum BPN (which is British Pendulum Number) of 45 under wet conditions. A British Pendulum Number is obtained by testing a surface with a pendulum function test under wet conditions in accordance with the standard. The experts obtained slightly different results but both agreed that the results were less than the minimum required by the standard to meet class W. This means that the surface made a very high notional contribution to the risk of slipping when wet. However, both experts also acknowledged the actual risk of slipping for an individual depends on a number of other factors. 65I will quote from Mr Adams' report, because he puts it in straightforward terms: "Whilst it is not appropriate to infer that a surface is safe or unsafe solely on the basis of measured coefficients of friction because the likelihood of pedestrians experiencing slips on a surface is only partly dependant on the surface characteristics, it is possible, usually by undertaking objective measurements, to determine the relative contribution that a given surface might be expected to make to the overall risk that a slip might occur. The total risk that a slip might occur on any given surface is dependent both on the frictional characteristics of that particular surface as well as the range of contributing factors, including the presence of potential lubricants, for example water, footwear, pedestrian level of awareness, whether the pedestrian is turning or exerting other forces, aspects of gait, lighting and so on." 66Dr Cooke said that, "The painting and sealing with a paving paint with embodied grit particles [which was what was used] was a reasonable preventative measure." He was of the view that the defendant would have had a reasonable expectation that the surface would provide adequate slip resistance for some time. He and Mr Adams agreed that the surface should have been adequately slip-resistant when wet. Dr Cooke noted that grit wears away over time, resulting in a smoother and therefore less resistant surface and the defendant ought to have had it checked at regular intervals of about six months. Of course, it must be borne in mind that the plaintiff slipped on the surface within six months of the paint being applied. 67Mr Adams suggested in one part of his report that the walkway surface he examined immediately adjacent to the ATM (and further to the east) was consistent with having been painted relatively recently with a product that incorporated a non-slip additive, but that in an adjoining area, where the plaintiff actually slipped, the surface was smoother, consistent with having been painted some time ago with a product that incorporated a non-slip additive. He said that a "pedestrian surface having slip-resistance within the range would be very likely to be experienced as slippery when wet." He also thought it was relevant that the slip occurred near or on a sloping area of a walkway. He reviewed the various Australian standards in relevant legislation as the requirement of slip-resistant surfaces in public areas and concluded it was reasonable to expect the owners and occupiers of commercial premises, in which large numbers of the general public are likely to attend, to carry out thorough assessments of those premises in relation to potential hazards to the safe movement of people. 68Having identified that what he said was a very significant risk, he then set out the reasonable preventative measures that could have been implemented. He said: (i) all publicly accessible areas could have been provided with pedestrian surfaces that were adequately slip resistant in the presence of the types of contaminant likely to be present, including water; (ii) the walkway could have been surfaced with a material or treatment that achieved at least a W rating as recommended by the standards. He said any such treatment would need regular checking and re-treatment; (iii) absorbent mats of an appropriate size could have been deployed in periods of rain; (iv) anti-slip strips could have been applied to the sloping section of the walkway; (v) the owner or occupier could have arranged for the attendance of an additional worker during wet weather to enable the area to be regularly mopped; and (vi) the owner or the occupier could have displayed warning signs. 69The problem with these recommendations is that, firstly, they are couched in terms of the precautions that could have been undertaken. He does not anywhere say that they should have been undertaken, and he was not cross-examined. 70Secondly, they are all predicated on the defendant knowing or having a level of awareness that the area was slippery when wet. There was no evidence that it had any such knowledge. There had been no previous incidents. There was no evidence they had been told the area was slippery and this is despite Mr Pretti saying that he regularly met with all of the tenants every three or four months and asked them whether they had any problems or concerns. 71Equally, there is no criticism in the expert evidence about the paint or the additives used in the premises and there is no suggestion that Domaine's work was not workmanlike or defective in any way. 72In the discharge of reasonable care by the shopping centre owner, a number of things happened. The managing agent was asked to attend to the surface area of the walkway and he did attend to it. The sequence of events was authorised by the management agreement that was in evidence, and which permitted repairs to be arranged and supervised by the managing agent. The independent businesses that provided the services - that is Domaine and so on - were not impugned and, indeed, the materials supplied were purpose-designed for the works. 73Section 5B of the Civil Liability Act 2002 (NSW) requires the owner and occupier to act reasonably with respect of the risks of foreseeable injury. The reasonable act of a shopping centre owner does not include having the chemical knowledge to know whether a particular product renders a surface safe for pedestrian traffic. 74In the present case, the owner and occupier knew or, in my view, ought to have known that there was a risk that a tiled area might cause someone to slip, particularly when wet. In this case, the owner directed and the agent arranged for a commercial product to be applied which had the precise anti-slip qualities desired. 75The owner had a managing agent that he had known and trusted for a number of years. He instructed them to arrange for a non-slip product to be used and it was employed by apparently a reputable contractor. Ceteris paribus, a person who engages an independent contractor is not liable for its negligence: see Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19. 76The Civil Liability Act requires a consideration of what a reasonable person in the position of the defendants would have done or should have known and done. In my view, and I find, the risk of slipping on a wet tiled floor was reasonably foreseeable and should have been reasonably foreseeable both to the owner and managing agent. However, they did foresee the risk and they acted on it. As I have said, the owner instructed and the agent arranged the painting of the floor with a non-slip paint. Those measures were reasonable, in my view, and adequately, at least on the face it, addressed the risk of harm. 77Mr Adams suggested that there should also have been warning signs in the rain. But to what end? The plaintiff knew there was a risk of slipping in the wet and she said that she took care. Mr Adams said there should have been absorbent mats, but I accept Dr Cooke's comment that it would have been impracticable to put mats all around the shopping centre. Not only that, in my view, there is a risk that such mats, themselves, might become a hazard if they were displaced. 78Mr Adams said non-slip strips could have been placed. This aspect has troubled me a great deal since Mr Trimboli's statement mentions that non-slip strips had been placed at the rear of the premises. Indeed, it would not be onerous to place non-slip strips, but there was no evidence before this Court that strips could be stuck on a painted surface, and I note there was no evidence about the surface on which the strips at the rear of the premises had been placed. There was no evidence that it would have made a difference in the present case. 79I note that there is a slope adjacent to the ATM and strips may have made a difference but the area marked by the plaintiff as the point at which she slipped seems to have been before the slope starts. In any event, even if I am wrong about that, I reiterate there is no evidence that the presence of strips would have made a difference. 80Taking s 5D and E of the Civil Liability Act into account, in my view, the plaintiff has not proved that, had the owner taken appropriate action, she would not have slipped. The test is not whether the defendants might have made a material contribution to the risk; rather it is that but for the impugned act the accident would not have happened. The plaintiff cannot point to something that the owner or agent should have done that would have had the necessary effect of preventing her from falling: see Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8. 81The plaintiff said that the duty was to provide a reasonably safe area for persons to walk and this the defendants did not do because it was unsafe and slippery and they did not inspect it properly. It was said that had the area have been inspected, its slipperiness would have been discovered. 82There was a suggestion in Mr Adams' report that there was a difference in surface covering in between the area where the plaintiff slipped and the area that was painted, but this was not put to the experts and, as I said, they were not cross-examined. It was not raised in any other way other than in final address. In any event, I am not satisfied that that is, in fact, what Mr Adams actually said. To accept the analysis by the plaintiff that there was a difference in those two areas would require an examination and an acceptance of something that is said to be apparent in the photographs in Mr Adams' report. This is not an appropriate use of photographs. Photographs should be used to explain evidence, not become the evidence itself: see Blacktown City Council v Hocking [2008] NSWCA 144. 83The notion that the plaintiff slipped and, therefore, it must have been slippery is an example of hindsight reasoning and not appropriate: see Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18. 84Ultimately, I am not persuaded that the defendants are liable. 85There is nothing to indicate the defendants knew or believed anything other than that the floor was safe: they had used a proprietary product; there was no suggestion the product was not appropriate or poorly installed: (cf Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151); there were no complaints made to Pretti about slipperiness and no previous incidents. 86I reiterate my comment that the report of Mr Strautins, who was retained by the former second defendant, had a consistent opinion with that of Dr Cooke. 87Accordingly, there will be a verdict for the defendants. 88Required as I am to do so, I turn my attention to damages. Non-Economic Loss 89In terms of non-economic loss, counsel for the plaintiff urged the Court to adopt a figure of thirty-three per cent of a most extreme case for non-economic loss. The defendant suggested a figure of twenty-two per cent was more appropriate. 90The fracture was, no doubt, very painful and continued so for some time. The plaintiff was in a cast for about eight weeks. No doubt it caused her a great deal of distress, but, radiologically, it resolved, and I do not think that a figure for maximum percentage of a most extreme case equates to the figure suggested by the plaintiff. I do not think it approaches one-third of the most extreme case. I would allow twenty-two per cent, which translates to $24,000. Past Economic Loss 91Mrs Pavlis' wage at the time of her accident was $631 net per week. The defendant said that her past economic loss ceased in March 2010 when the reason that she was unable to work due to her wrist fracture came to an end. This submission was made based on Dr Fitch's medical certificates. In fact, he gave medical certificates pertaining to the wrist only for a period that ended on 31 May 2010, and it seems to me that past economic loss should be calculated in that way: $631 per week for thirty-three weeks, which is 4 October 2009 to 31 May 2010 plus eleven per cent for superannuation is $23,113.53, and I would allow that figure. Future Economic Loss 92The plaintiff's primary contention is the plaintiff is not able to return to work as a result of her injury and the evidence was that she has been trying to get a job but has been unsuccessful. The defendants say that not only is the plaintiff able to return to work, the real likelihood is that she will return to work, and they pointed to the evidence that she will be shortly undertaking a rehabilitation course in order to do that. 93I have to consider the psychiatric evidence which, as I have said, is troubling. The evidence was that after her back injury in 1999, she became depressed and unhappy, but this improved dramatically after she resumed full time work. As I have said, the distinct impression I have of the plaintiff and, indeed, her family is that they have a very strong work ethic and find pride and satisfaction in working. Dr Leonard Lee thought her depression would continue if she continued to be unemployed. 94I do not accept that she is so disabled either physically or psychiatrically that she will not be able to return to work. It seems most likely to me that she will return to some form of work and within the near future. She is motivated, and I had the impression that she would be encouraged and supported by her family. I would allow some future economic loss, being the time I estimate it would take the plaintiff to undertake a rehabilitation course and develop alternate skills sufficient to secure employment. She will not do the rehabilitation course until January 2014, and I would allow another six months to get back to work after that time. Therefore, I would allow twelve months at $631 per week. I take that figure in the absence of any other evidence as to wage. Given the short time period, I would not deduct anything for vicissitudes, nor is it necessary to apply the multiplier. I would allow the sum of $32,812. Past Out-of-Pocket Expenses 95The plaintiff's figure for past out-of-pocket expenses comprises treatment for her wrist which is not controversial and which is valued at $2,965.59. I have found that the other expenses for her shoulder and other things are not causally related to the accident and I would not allow them. Future Out-of-Pocket Expenses 96The documents produced by the plaintiff reveal one chemist's receipt. The plaintiff does not like to take pain relief medication. She is unlikely to need prescriptions or medications for her pain. The question is whether she needs compensation for future psychiatric treatment. Much was said about the plaintiff being depressed and unhappy and not the person she was before the accident. However, the psychiatric evidence is not very satisfactory. She had been seeing a psychologist for a lengthy period, but there is no evidence from that psychologist. On the other hand, Dr Leonard Lee was of the view she did require psychiatric assistance. As I hope I have made clear earlier in these reasons, it seems to me the plaintiff has some form of depression arising from the accident probably because she presently considers herself unable to work. In the light of her history and her personality, which is, I think, stoic, she would benefit from psychiatric assistance. I would allow twenty-six sessions. The only evidence about the cost of psychiatric treatments is found in one of Ms Moodley's reports (exhibit D). She refers to a figure of $250.00 to $300.00 an hour. They seem to be, to me, rather conservative figures and I would allow the higher figure. For the avoidance of doubt, I have allowed fortnightly sessions for the year that I have estimated it will take the plaintiff to get back to work. I would allow the sum of $7,800.00. Domestic Care 97In order to reach the threshold for domestic care under the Civil Liability Act, the plaintiff needs to demonstrate that she needed the care as a result of her injuries and that it was of a personal or domestic nature for a minimum of six hours per week for six continuous months. I accept that the plaintiff would have needed at least six hours of care a week and considerably more than that for her personal and domestic activities in the period immediately after the accident when her arm was in a cast. That period lasted from 4 October 2009 until the end of November 2009. Thereafter, the plaintiff had physiotherapy, but was out of plaster and, although reported continuing discomfort, did not need the same level of personal care. She could, for example, shower and dress herself, although she says she got assistance from her daughter. She agreed in cross-examination that her daughter worked full time and the assistance she received was about fifteen minutes a day. 98The plaintiff's daughter cooked and washed but did it for the whole family, not just Mrs Pavlis. For example, the plaintiff's daughter continues to make her brother's bed. When Mr Pavlis did vacuuming and washing, he did it for the whole household. Indeed, when any of the family did anything, they did it for the whole household as part of the family unit. Although Ms Moodley reported in May 2010 that Mrs Pavlis could not use cutlery or hold a glass for more than a few moments with her right hand, and an empty glass at that, the plaintiff herself did not say that and nor did her family members. 99The question is, what were and what are the needs of the plaintiff occasioned by the injury? Mrs Pavlis herself said she did not have trouble getting in and out of bed or going into or out of the toilet; did not fall over in the shower; did not need to use a long-handled sponge; she said she had difficulty cutting up food but not in using a knife and fork; she said she could not use a hairdryer because of the shoulder pain; she said she did do some housework, even though it caused pain, in order to keep occupied. 100The various medical practitioners have referred to figures for past domestic and future domestic care but without any analysis or explanation that might assist the Court in determining: (a) whether they actually knew or were told anything about the plaintiff's living accommodations; for example, the size and configuration of the house, the number of household members and so on; (b) whether they knew or were told anything about the plaintiff's historical contribution to the household tasks; (c) what might be actually carried out in the hours they have allowed and how those tasks derive from the actual needs of the plaintiff that have arisen as a result of the injury. I find them unhelpful, to say the least. 101I have also considered the reports of Venesha Moodley, occupational therapist. She reported in May 2010. The picture she presented of the plaintiff in the report is that of a very disabled person. She said that Mrs Pavlis experiences difficulty completing transfers to and from the toilet and bath; that she requires assistance to do up and undo fasteners on her clothes; cannot manage to get dressed unless in a seated position; is unable to independently use cutlery in her right hand; is unable to hold an empty glass for more than a few moments. I emphasise that she said she was unable to do these things. Not that she could do them, although with pain, but that she was unable. 102On the other hand, Ms Moodley reported that the plaintiff could drive a car, albeit a short distance. The implication has to be that she can operate the gears, lights, windscreen wipers, door handle and get in and out of the car. It was also reported that she can put washing in the washing machine and do some cooking and use the dishwasher. Ms Moodley calculated that the plaintiff needed more than six hours a week for a period of six months. I cannot agree. Ms Moodley has included in that calculation work done by the family, for the family. She has not differentiated between work done for the plaintiff because she cannot do it for herself and work done by the family unit for the family unit. When the house is vacuumed, for example, it seems to me it is done for the benefit of everyone living in the house and account must be taken of this. It is not a need solely of the plaintiff; similarly, with the washing, cooking, shopping, cleaning and so on. Ms Moodley even allowed an average of forty minutes per week for lawn mowing and gardening when the evidence was that Mr Pavlis had always done that work. I do not accept that the plaintiff needed six hours per week for a period of six months. In any event, the supervening event was the shoulder problem apparent in March 2010, which was within six months of the accident. 103Since I have found that I am not satisfied that this shoulder was causally related to the accident, any care that the plaintiff needed because of it does not arise. The threshold therefore is not reached. I would allow nothing, therefore, for gratuitous domestic care. Future Care 104However, in the event that I am wrong and I am obliged to consider the quantum, I will consider the question of future care. I have to consider whether future care is warranted in the circumstances. 105Consistent with my findings that it is likely the plaintiff will undergo rehabilitation and go back to work, I would allow future care for a period of 12 months and I would allow 6 hours a week at $22.00 an hour, or $176 a week. I estimate 6 hours in this way: 15 minutes per day assistance in dressing and hairstyling, or 1.75 hours per week. In terms of household tasks, generally, I would allow 1 hour per day for cooking and food preparation, 15 minutes per day for general cleaning and tidying, 15 minutes per day for washing and clothes care, 15 minutes per day for heavier cleaning, such as mopping. This equals 14 hours per week. These tasks are shared household tasks performed by all members of the family for the benefit of the whole. I had thought that one way of finding a figure that reflected the plaintiff's contribution might be to divide it by the number of members of the house, but on reflection, that does not take account of members leaving the house or refusing to carry out their share. 106Another way of looking at it is to consider what work the plaintiff would have to do if she lived alone. Her tasks would be considerably reduced in scope. I estimate that if she were on her own she would need to spend less time in food preparation, washing and cleaning, and that figure then would be less than half the figure for a family. Accordingly, it seems to me, six hours is appropriate. 107The summary of damages that would be allowed, had I found for the plaintiff, would be a total of $90,691.12 or, with gratuitous care, $100,987.12. Summary Non-economic loss $24,000.00 Past out-of-pocket expenses $2,965.59 Future out-of-pocket expenses $7,800.00 Past economic expenses $23,113.53 Future economic expenses $32,812.00 Subtotal $90,691.12 Gratuitous care, if allowed (6 hours/week for 26 weeks at $22.00 = $3,432.00 plus 6 hours/week for 52 weeks at $22.00 = $6,864.00) $10,296.00 TOTAL inc Gratuitous care $100,987.12 Verdict/Orders 108There will be a verdict for the defendants. 109The matter be listed for mention on 17 June 2013 in respect to costs and final orders in respect of the cross-claim. 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: 29 September 2014