District Court New South Wales Medium Neutral Citation: Margaret Hill v Coles Supermarkets Australia Pty Limited (ACN 004 189 708) [2016] NSWDC 5 Hearing dates: 27-29 January 2016 Decision date: 12 February 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the plaintiff. For orders see [86] Catchwords: Slip and fall; occupier's liability. Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Adeel's Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343. Jopling v Isaac [2006] NSWCA 299 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 Category: Principal judgment Parties: Margaret Hill (Plaintiff) Coles Supermarkets Australia Pty Limited (ACN 004 189 708) (Defendant) Representation: Counsel: P N Khandhar (Plaintiff) B McManus (Defendant) Solicitors: Brydens Compensation Lawyers McCulloch & Buggy File Number(s): 14/326308 Publication restriction: Nil Judgment The plaintiff's claim 1. The plaintiff, who was born on 3 July 1965, claims damages for injuries suffered by her on 11 January 2013 when she slipped and fell within the defendant's premises at Kings Langley. The plaintiff claims that she slipped and fell on water which had spilled on the floor, adjacent to a refrigerated fruit and vegetable display cabinet. 2. The incident occurred at approximately 7.15am, a short time after the premises had opened for business. The plaintiff suffered a serious injury to her left ankle, which has required surgery by way of an arthroscopy and synovectomy. She suffers ongoing impairment to most physical activities. 3. The plaintiff claims that the defendant was negligent. The particulars of negligence pleaded are as follows: 1. "Placing the plaintiff in a position of peril under the circumstances; 2. Failing to warn, or adequately warn the plaintiff of the presence of water near the fruit and vegetable case; 3. Failing to install non-slip matting on the floor adjacent to the said case; 4. Failing to inspect, or adequately inspect, the floor near the said case; 5. Failing to ensure that the area around the said case was free from water by means of dry-mopping after restocking the case with fruit and vegetables." 1. The defendant, by its Defence, has denied the allegation of negligence, and has pleaded that the relevant risk of harm posed by the plaintiff having to traverse the relevant section of floor and negotiate any liquid on the floor (the presence of which was denied), was an obvious risk for the purpose of Pt 1A Div 4 of the Civil Liability Act 2002 (NSW) ("CLA"). The defendant has pleaded: 1. "Pursuant to s 5G of the CLA, the plaintiff is presumed to have been aware of the risk of harm and; 2. The plaintiff voluntarily assumed the risk of harm and; 3. The defendant is not liable for the materialisation of the harm and; 4. Pursuant to s 5H of the CLA, the defendant did not owe a duty of care to the plaintiff to warn of the risk." 1. Further, the defendant has pleaded that the plaintiff's injuries were suffered, wholly or in part, as a result of her own contributory negligence. The particulars of contributory negligence are: 1. "Failing to take any or any reasonable care for her own safety; 2. Failing to keep a proper look out; 3. Failing to avoid an obvious hazard." 1. In respect of its pleading of contributory negligence, the defendant relied on ss 5R and 5S of the CLA. The above pleadings were abandoned at the hearing; however, liability, (i.e. breach of duty of care and causation) remained in issue. The plaintiff's evidence on liability 1. The plaintiff gave evidence that she attended the defendant's supermarket with her eight-year-old son, Daniel, just after 7.00am, but before 7.15am. She was wearing thongs, and entered past the self-serve checkouts, where she turned right to walk past a refrigerated cabinet containing fruit and vegetables. She gave this evidence: "Q: What happened? A: I turned right, so I took a few steps and then I felt my feet, probably my left foot first and then my right, and I just – I just remember being flung off my feet and seeing my keys and wallet go flying across the room and then I've just hit the ground with a thud. Q: When you were on the ground did you look around to see what had caused this incident? A: Yes. Q: Did you notice anything? A: Yes. Q: What did you notice? A: A strip of water on the floor." 1. The plaintiff went on to describe the area of water as being about the length of an A4 sheet, but not as wide. By slipping on the liquid, she had elongated the water. 2. The plaintiff immediately felt excruciating pain in her lower legs, and mostly her left ankle. When she fell, both her knees came into contact with the floor, following which, both legs went in opposite directions, with the left leg sliding right out. She described this as "doing the splits". 3. Whilst on the floor, and in pain, the plaintiff was approached by three people. She gave this evidence: "Q: Did one or more of these three people say anything to you? A: The young girl introduced herself as a manager. I can't remember her name. And she said, 'What did you – what happened? What did you fall on?' and I turned around and pointed the water and she said, 'Oh, there's water on the floor.' Q: Did you actually say any words? A: I said, 'I slipped in the water'. Q: She responded with, 'Oh there's water on the floor'? A: Yes. 'There's water on the floor.'" 1. The plaintiff went on to identify four ladies who attended to her. Three were Coles employees and the other was someone who was working in the Coles store. The young lady who identified herself as a manager went and got an ice pack and the plaintiff was helped onto a chair. The water was mopped up in the plaintiff's presence, after she had said to them, "Aren't you going to clean the water up before somebody else slips over?" One of the women replied, "Oh yes, I suppose we better". 2. Whilst the plaintiff was there, an Incident Report was completed and she was handed a copy. It became Ex B and was prepared by Ms Eva Boden, whose position was described as an "OIC". The document described the key contributing factor to the incident as "Water on floor from FV filing case". It further recorded the appropriate control action as being, "Mop to be beside filling at all times when changing cases over and to be mopped before moving away from the area" (sic). 3. At the plaintiff's request, a Coles employee rang her husband and her son, Wayne, attended and took her to see her GP, Dr Khan at Seven Hills. 4. Approximately one month later, the plaintiff attended the same premises on crutches, with her left foot in a CAM boot. She gave the following evidence of a conversation she had with a checkout operator at the store: "Q: First of all, what did she say? A: Well she was serving me and she noticed my crutches and she said, 'What did you do to yourself?' Q: And you replied with the words? A: 'And I actually fell over in there, over there in front of the fridge'. And then I said, 'I notice you've got a mat there now'. Q: And? A: And she said, 'We always have a mat there', and I said, 'Not on the day that I fell, you didn't'. Q: Did she respond to that at all? A: She just went 'Oh'. That was it. 1. On that day, or shortly thereafter, the plaintiff took a photograph of the scene which became Ex D. It shows a mat directly in front of the refrigerated cabinet. 2. The cross-examination of the plaintiff in respect of her fall was confined to the following: "Q: …I just want to ask you is it possible that you were mistaken? That there was no water on the floor? A: No. Q: You've indicated that you were in the store for approximately half an hour? A: About that, yes. Q: You've also spoken about seeing cameras? A: Yes. Q: But this is on a latter occasion to the incident that you've returned to the store and you say you saw a camera? A: Yes. Q: Of course, you don't know what that camera was pointing at do you? A: No. Q: It was the one that you said was directly above where you— A: Yes. Q: --fell. This was close to the cash register area wasn't it? A: Yes." 1. The plaintiff tendered as Ex M a disk which contained CCTV footage from the defendant's premises. The film did not come from cameras above the cash register area, but from a camera at the other end of the aisle in which the plaintiff fell. The film was for a period of less than two minutes, between 7.13am and 7.15am, and had been produced by the defendant in response to a subpoena requesting relevant footage from one hour before and one hour after the incident. Crucially, 27 seconds of the film were missing for a time period which would have shown the plaintiff's fall. What was exposed was the plaintiff lying on the floor, following her fall. The missing footage was subject to a submission by learned counsel for the plaintiff that an inference may be drawn that the CCTV footage had been tampered with, and, further, that it would not have assisted the defendant's case. The defendant's evidence on liability 1. The defendant called two witnesses in its case. The first was Mrs Sandra Schembri, who was a checkout operator working at the time of the plaintiff's fall. The incident occurred two metres from where Mrs Schembri was working. She was serving a customer when she noticed that the plaintiff, who had just come into the store, fell. She was the first person to go to her. She gave evidence that she said to the plaintiff, "Are you alright? What's happened?" and the plaintiff said, "No, she's not alright." Mrs Schembri then said she said, "Stay there." She then left and rang for what she described as a "Code blue", which was a request for medical assistance. 2. Having done that, Mrs Schembri went back to the plaintiff and where Ms Eva Boden and Ms Kylie Smith were in attendance. The plaintiff then asked her to call her husband, which she did. She was then asked: "Q: Did you make any observations of the area where she was sitting or lying in? A: Yeah, I just looked around, there was nothing there. Q: What do you say, when you mean 'nothing', where did you look? A: On the floor all around. Q: All around what? A: Well she's fell down, I've got to see what, why she fell down. There was nothing there as far as I could see." 1. In cross-examination, Mrs Schembri agreed that she was really intent on looking after the plaintiff who had injured herself and that her attention was on her. She gave the following evidence: "Q: You do have a quick scan around to see what might have caused it, you agree? A: Yes. Q: But you might have missed it because it's not easy to see? A: Okay. Q: Do you agree? A: Well if you say so. Q: No, no, madam, I want you to say so, if that's your evidence? A: Well I say no, I didn't see anything. Q: Your attention is more on the person that you are helping though, isn't it? A: Well not really, she was sitting on the floor crying and I've had a look. That was it. Q: Why wouldn't you have asked her, 'What caused you to slip?' A: Well it wasn't up to me. I just asked that that call, the code blue, came back, then they came there." 1. Mrs Schembri went on to give evidence that she had never seen any mop brought out to wipe up the floor, nor did she see a sign reading "Slippery when wet" placed. She did not notice any mats in front of the fruit and vegetable case. She gave this evidence: "Q: You don't have a recollection now, Mrs Schembri, whether there was a mat there or not? A: No, I wasn't looking for the mat, I was looking at the lady. Q: Was there supposed to be a mat there, Mrs Schembri? A: There are mats there. Q: Was there supposed to be a mat in front of that fruit and veg cabinet? A: I can't answer that correctly because I don't know if it was supposed to be there or if it just gets put there at a certain time. Q: Is it just an ad hoc thing? An ad hoc policy that Coles have out there at Kings Langley in respect of mats? A: Well as far as I know, the cleaners pick them up to clean the floor, then they get put back down by the staff. Q: Are mats normally there? A: When the staff put some back down, yes. Q: Are the staff meant to put them back down? A: Well I would assume so." 1. Mrs Schembri was asked to identify a hose outlet on the cabinet, but could not do so. She agreed that a mat would have reduced the risk of anyone slipping on water on the floor in front of the cabinet. There was no re-examination. 2. The defendant also called Mr Brett Mattingly, who was the manager of the store at the relevant time. He was not present at the store, not having commenced work at the time of the incident. He was told there had been a fall by the officer in charge, Ms Eva Boden, following which, he went and inspected the area in question. That was after 8.00am. 3. Mr Mattingly gave evidence that the defendant employed cleaning contractors at the store who commenced their work generally at 4.00am and worked until 7am when the store opened. He gave further evidence that general instructions were given to staff members in relation to the cleaning of the store at that time, as follows: "A: Just to always be vigilant and observant when filling and you know, tidying up sections and to clean up a spill as it happens immediately or, if not, to ask for assistance to acquire the correct cleaning equipment." 1. When asked whether there was a policy in relation to black mats in January 2013, Mr Mattingly answered: "A: The black mats are to be placed in front of product, that is, lettuce, cherries and grapes, loose, and they go in front of those when you build displays or in the general fixture." 1. In cross-examination, Mr Mattingly gave evidence that he was not aware of the request for copy of the CCTV footage from one hour before the incident to one hour after, as required by the subpoena to produce. He had been responsible for extracting the tape which commenced at 7:13:08 am. His reason was "to condense the time of the incident". When asked about the 27 seconds of missing footage, Mr Mattingly said that he had never watched the footage, although he "burnt the CCTV footage". He did not know who had anything to do with cutting out the 27 seconds. This was something he had done many times before, usually at the request of police. 2. Mr Mattingly was shown a photograph, Ex L, which showed the cabinet, taken approximately one month after the incident. He identified that it contained loose cherries. He was unable to identify a hose jutting out from the base of the fridge. 3. Mr Mattingly was unaware of what was on the shelves on the day in question and did not know whether there was a mat in place. He was asked: "Q: Was there supposed to be a mat in front of that cabinet? A: I'm not sure what was in the cabinet at the time. Q: If there'd been water on the floor, you would agree, wouldn't you Mr Mattingly, that having a mat there would have reduced almost entirely perhaps the risk of slipping, do you agree with that or not? A: Yes." 1. Mr Mattingly went on to concede that he had never looked at the Incident Report which had been completed by Ms Eva Boden. He explained the entry "Water on the floor from the FV filling case", contained in the Incident Report, ex B, and that FV was an abbreviation for "Fruit and Vegetables". 2. Mr Mattingly was asked: "Q: Have you ever known of the phenomenon where the cleaners take the mats away and forget to put them back? A: That's happened in the past. Q: It's up to the staff to make sure the mats are put back, correct? A: Correct. Q: Before a single person walks into that shop, correct? A: Correct." There was no re-examination. 1. The defendant did not call either Ms Eva Boden or Ms Kylie Smith, as both were on maternity leave (see Ex 2). Determination as to liability 1. Counsel for the defendant submitted that the risk of harm here concerned the risk of injury occurring to the plaintiff by slipping on a wet floor. However, it was submitted that any system of cleaning would not require the defendant to detect the water on the floor. Counsel did, however, concede that the defendant would have a duty to ensure safe premises, for customers to enter at 7am when the shop opened. 2. Learned counsel for the plaintiff submitted that this was a situation where liability should have been admitted by the defendant. The risk of harm, it was submitted, was to a patron, by not having the floor of the premises in a safe condition by having a mat adjacent to the refrigerated fruit and vegetable cabinet. That was a precaution that should have been taken and amounted to breach of the defendant's duty of care. That breach, it was submitted, was a necessary condition of the harm suffered by the plaintiff and therefore causation was made out. 3. The plaintiff was not challenged as to the way in which she suffered her injury, namely, that she slipped on water on the floor immediately in front of the refrigerated cabinet. The evidence of Mrs Schembri that she saw nothing on the floor, did not undermine the plaintiff's evidence as to how she fell. Given that the plaintiff entered the premises shortly after they opened at 7.00am, and there is no issue that there was water on the floor upon which she slipped, I find that the defendant had a duty to ensure that the premises were safe for customers to enter by placing a mat in front of the refrigerated unit. In applying ss 5B and 5C of the CLA, the risk of harm here was that a member of the public, such as the plaintiff, would slip and fall on water emanating from the refrigerated unit onto the supermarket floor. The harm was that such risk would result in serious injury. 4. The precaution advocated by the plaintiff that the defendant should have taken against such a risk, was that it should have placed the mat on the floor. On the balance of probabilities, the mat was removed for the cleaning process by the defendant's contract cleaners, and should have been replaced by the Coles staff prior to opening the store. That, on the evidence, was the ad hoc system adopted by the defendant. In having regard to the matters in s 5B(2) of the CLA, and the principles set out in s 5C of the CLA, I find that a reasonable person in the position of the defendant would have taken that precaution, and therefore the defendant breached its duty of care to the plaintiff. 5. In determining causation pursuant to s 5D of the CLA, 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 Pty Ltd v Moubarak; Adeel's Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; Adeel's Palace v Moubarak (2009) 239 CLR 420 and Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 at [18] – [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. 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. 6. In coming to these conclusions, it is unnecessary to make a determination as to the missing section of film of the plaintiff's fall. The plaintiff's evidence was not challenged as to her fall. Similarly, the absence from the witness box of the two Coles employees, Ms Boden and Ms Smith, is explained by their absence on maternity leave. The Incident Report, completed by Ms Boden, supports the plaintiff's claim, and no necessity arises to draw any further inference supporting that claim to the effect that her evidence would not have assisted the defendant's case. I am therefore satisfied that the plaintiff has, on the balance of probabilities, established her case in negligence against the defendant, and there will be a verdict for her in the proceedings. Damages 1. The plaintiff was examined on the day of the accident by her local medical officer, Dr Khan, and referred for an x-ray and ultrasound of her left ankle. There was no recent fracture or dislocation shown on x-ray, however, the ultrasound showed an avulsion of the left anterior talofibular ligament. The study concluded that there was also a sprain of the calcaneofibular ligament. 2. The plaintiff was referred by Dr Khan to Dr R Kuo, orthopaedic surgeon, who examined her on 1 February 2013. On examination, the plaintiff had evidence of a torn lateral ligament complex. She was referred for an MRI scan in March 2013, which showed a marked effusion of the left ankle with a torn lateral ligament complex and non-healed avulsion fracture of the fibular. Clinically, there was tenderness in the ankle and swelling and restriction of movement of her left ankle compared to her right ankle when she was examined by Dr Kuo on 22 May 2013. At that time, his prognosis was that in the event of failure to improve, she would be a candidate for surgery. 3. The plaintiff was treated conservatively at first in a CAM boot and used crutches for four weeks. Three photographs which comprised Ex C, demonstrated the swelling in her ankle a few days after the accident. 4. The plaintiff returned to work one month after the accident, but was not allowed to use crutches at work. She returned therefore in the CAM boot, but was only able to mobilise with pain. She was given assistance by other employees, for example, with printing documents. 5. The plaintiff makes no claim for past domestic assistance, however, it was three months before she was able to start doing domestic chores at home. Her husband had suffered a debilitating injury at work some years previously, and she did the bulk of the domestic chores inside the home, but also attended outdoor tasks such as lawn mowing and gardening. For the first three months after the incident she had some assistance from her son, his friend, and a friend of her own. However, she still attended to tasks such as vacuuming, which she did at first on her knees. She adapted to be able to carry out most of the tasks at home, but had difficulty with heavy tasks and tasks that involved squatting or bending. 6. The plaintiff ultimately came to surgery by way of an arthroscopy by Dr Kuo at Norwest Private Hospital in August 2014. She had two weeks off work following that surgery. She then returned to work again, with the benefit of a CAM boot. 7. Since that surgery, the plaintiff gave evidence that she walks with a splayed left foot. If she walks with her left foot straight, that causes her pain in her toes. She was given advice by Dr Kuo not to do that, lest she suffer stress fractures in her foot. The plaintiff gave evidence, which was not challenged, that her gait has changed and that she walks with a limp. As a result of this change in gait, she gave evidence that she now has a tilted pelvis with muscle wastage in her injured left thigh and pain in her back, hips, legs and bottom. She had been referred to the Sydney Physiotherapy and Sports Injury clinic for physiotherapy for treatment; however, she has now found that she is having pain in her right leg as a result of the altered gait. The plaintiff gave evidence that the physiotherapy treatment she underwent in September and October 2015 involved stretching her legs and manipulating her hips, as well as exercises. That treatment had not assisted her in any great way as far as her hip pain was concerned, nor had it assisted her limp. 8. The plaintiff's elder son had now left home and her younger son is 10 years of age. As a result, many of the household chores remained undone and the plaintiff, who was house proud, described that she felt "like I'm living in a pigsty". When asked how she felt about that, she said, "not very good, feel like a bum". 9. The plaintiff gave evidence that she had paid someone to mow the lawns for a period of three months, however, she could not afford to keep paying him. 10. The plaintiff also gave evidence that Dr Kuo had recommended further surgery by way of an achilles heel excision which would provide her with further movement of her ankle. However, she was advised that her ankle would be weaker and that her movements would be slower as a result of that surgery. 11. The plaintiff gave evidence that she felt her left ankle was getting worse and that if it continued to worsen, she would consider having the surgery. She had not had it as yet as she was too nervous and scared about the pain and the fact that her ankle would be weaker after the procedure. 12. The plaintiff gave evidence that she had reduced her working hours from full time to 25 hours per week to assist her younger son going to and from school. That was unrelated to her injuries. Any physical activity caused her pain to increase, and she was not unable to participate in recreational activities that she had enjoyed prior to her injury, particularly those that she engaged in with her son, namely, cricket, tennis, trampolining and bike riding. 13. The plaintiff gave evidence that if she had assistance to carry out the domestic chores that she was unable to attend to, in order to bring her home to the sort of standard that she required, it would take at least seven hours per week paid assistance. 14. The plaintiff was cross-examined to establish that most of her work over the period from 1990 onwards was in administrative sedentary positions, with some moving about. She had been in her present position with Valspar for a period of over seven years and had an excellent work history. 15. The plaintiff disagreed with the notation made by Dr Bodel in June 2013, that she "is able to manage the housework, although she has to take care when squatting or walking on rough surfaces". She did agree that after one year following the accident, she could carry out the domestic chores, but with some assistance. While she did not avoid carrying out everyday tasks, cleaning bathrooms were a difficulty for her. She agreed with the description given by Dr Peter Giblin in his report, that she did most of the housework on a piecemeal basis. 16. The plaintiff gave evidence that she took Panadol on an as-needed basis every couple of days. She was also unable to wear high heels for three years since the accident, a matter of some concern to her. 17. When asked about her ability to bend her ankle, the plaintiff gave evidence that she had no flexion of her left ankle. Dr Kuo had advised her in respect of the surgery, but had told her that she may never get full movement of her ankle back. In respect of her evidence that she would be assisted by seven hours cleaning assistance each week, it was put to the plaintiff that she can actually carry out a fair bit of that cleaning by herself, which she conceded by saying, "A lot of it I can". The plaintiff went on to qualify that answer as follows: "Q: In fact, you carry out most of it in relation – except that you have difficulty with the bathroom, in particular— A: I wouldn't say 'most', because a lot of it just doesn't get done, so I do what I do. I don't do any of the heavy stuff. Mostly all I do is just cleaning the kitchen, vacuuming every now and then, but unfortunately, I do get my young son to do a lot of it. Q: When you say 'the heavy stuff', what do you mean? A: Well like getting on ladders and cleaning windows and fans and – which is not every day stuff, but— Q: That's not something that happens that often— A: It's not every day, but I can't do those. Q: You wouldn't go on a ladder? A: No, there's no way I'd get on a ladder." 1. Exhibit E comprised the plaintiff's medical evidence. When Dr Kuo reviewed the plaintiff on 15 November 2013, she had persistent symptoms in her left ankle and he advised an arthroscopy and excision of the non-union lateral plus lateral ligament reconstruction of her left ankle. That procedure was carried out at Norwest Private Hospital, following which, she was troubled by stiffness in the ankle, together with a mild equinus deformity. She had 15 degrees less movement compared with the right side. 2. Dr Bodel examined the plaintiff prior to her surgery. He diagnosed a lateral ligament injury. He stated that the avulsion fracture was an old injury, but there was evidence of acute pathology seen on the ultrasound and MRI scan involving the lateral ligament. He did not anticipate at that time a need for domestic assistance following the first four months after the accident. 3. Dr Oldtree Clark, psychiatrist, proffered an opinion that the plaintiff was suffering from adjustment disorder and at the time he examined her, she was somewhat depressed. Whilst her prognosis was reasonable, Dr Oldtree Clark was of the opinion that she needed counselling. 4. Dr Peter Giblin, orthopaedic surgeon, examined the plaintiff on 9 March 2015. At that time, her chief complaint was a constant ache in her left ankle with intermittent sharp, stabbing pains and constant stiffness. She was restricted in all physical activities, and was complaining of pain in her right foot after favouring her left. Dr Giblin was of the opinion that she may require further surgery by way of a repeat arthroscopy and soft tissue release at a cost of $14,000.00. She would need post-operative treatment by way of physiotherapy and medications. Dr Giblin was of the view that if post‑traumatic arthritis occurred, then it was probable that at some time in the future consideration would have to be given for a further procedure by way of a subtalar arthrodesis at a cost of $17,000.00. 5. The defendant tendered a schedule and bundle of clinical notes, together with a report of Dr Bentovoglio, orthopaedic surgeon, dated 27 March 2015, and a report of Dr Burke, general surgeon, dated 11 June 2013. 6. Dr Bentovoglio examined the plaintiff on 25 March 2015. On examination, he observed the plaintiff to walk slowly and with a limp. Importantly, there was 1 cm muscle waste present in her left calf, together with a well healed operative scar measuring 4-5 cms in length over the lateral aspect of her ankle. Dr Bentovoglio agreed with the diagnosis of a rupture of the anterior talofibular ligament. He was of the opinion that she would not lose significant periods of time off work in the future. Dr Bentovoglio was of the opinion that the plaintiff would benefit from one hour of domestic assistance per week to do activities she is no longer capable of doing as a result of her ankle injuries. 7. Dr Bourke, general surgeon, examined the plaintiff on 11 June 2013, at which time he commented that she had had appropriate conservative treatment. Her condition was not stable, as there was a prospect at that time of her undergoing an operation, which she subsequently underwent. For that reason, assessment of impairment was, in the opinion of Dr Bourke, best deferred for a period of 12 months. No further report was relied on by the defendant. Submissions as to damages 1. The plaintiff relied on the following schedule of damages: Non-Economic Loss (30%) $136,500.00 Past Out of Pocket Expenses (agreed) $11,285.00 Future Out of Pocket Expenses $32,500.00 Past Wage Loss $7,865.00 Past Loss of Superannuation Benefits (11%) $865.00 Future Wage Loss (Cushion) $50,000.00 Future Paid Care (7hrs/wk x $40/hr x 902.0) $252,560.00 Total $491,575.00 1. The defendant's submissions may be summarised as follows. Non-Economic Loss (25%) $38,500.00 Past Wage Loss $5,025.00 Past Loss of Superannuation Benefits $500.00 Future Economic Loss Nil Past treatment expenses - $11,285, less a credit of $7,985 paid by the defendant $3,300.00 Future treatment expenses $5,000.00 Future Paid Domestic Assistance (1hr/wk) $25,000.00 Total $77,325.00 1. For non-economic loss, the defendant submitted that 25% of a most extreme case took into account the surgical procedure the plaintiff underwent in August 2014, the resultant stiffness in her ankle, and problem with the flexion, and the possibility of a further procedure by way of excision of her achilles tendon. The defendant accepted that the plaintiff was suffering ongoing pain and accepted that she now had a problem with her gait, which caused her to limp. However, the defendant submitted the plaintiff's injury was relatively minor. 2. Further, the defendant took no issue with the plaintiff's complaints of right leg symptom, however, she had undergone physiotherapy treatment in September 2015 to her hips. 3. The defendant submitted that the plaintiff had very little time off work and that she was emerging from the adjustment disorder diagnosed by Dr Oldtree Clark. 4. The defendant submitted that the plaintiff was entitled to no allowance for future economic loss. Pursuant to s 13 of the CLA, the evidence which bound the court was to the effect that she had secure employment with Valspar, that her reason for reducing her hours was unrelated to any negligence by the defendant and that her doctor's opinion was that she was fit for sedentary employment. Therefore, there was no diminished earning capacity, relying on Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [55]. 5. In respect of future treatment, the plaintiff was taking some medication, between eight and 10 Panadol tablets per week, on an as-needed basis. The defendant relied on Dr Bentovoglio's opinion that there was no need for future surgery and that the plaintiff had, in any event, taken a cautious approach to such surgery in the past. The defendant therefore submitted that no allowance should be made for future surgery; however, alternatively, an allowance should be made based on Dr Kuo's estimate of $14,000.00, but assessed by way of a chance that some surgery may take place. 6. On the basis that physiotherapy treatment had alleviated some of the plaintiff's symptoms, it was conceded that some allowance should be made for that treatment in the future. 7. In respect of future care, the defendant submitted there was no expert medical support for the plaintiff's claim of seven hours per week, but conceded that if there was a need established, then an allowance should be made of one hour per week. That would amount to a proper allowance for her inability to carry out heavy work. Further, there was no support for the plaintiff's claim for seven hours per week from the medical evidence. 8. The plaintiff submitted, by her learned counsel, that 25% of a most severe case manifestly undercompensated the plaintiff for non-economic loss. Prior to the accident, she had been an active woman and was not suffering pain, frustration, loss of amenities, loss of enjoyment of life, scarring and limited mobility. The injury she suffered could not be characterised as a minor injury. It required surgery and may require further surgery into the future. It had resulted in her having a splayed left foot and altered gait, giving her a limp. Further, it caused her low back pain and right hip pain. 9. Counsel submitted that the plaintiff was a witness of truth and the court should accept the evidence of her ongoing limitations. She had an excellent work history and had returned to work in the minimum time possible. She was not one to complain, and had returned to doing her domestic chores by adapting, for example, by vacuuming on her knees. Notwithstanding that, the plaintiff's condition was getting worse and she was forced, by her injuries, to live in conditions which she described as akin to a "pigsty". 10. Counsel submitted that the court would accept the plaintiff's evidence that she would, given her worsening condition, accept medical advice to undergo surgery and therefore an allowance should be made for that surgery in the sum of $15,000.00. She would require ongoing physiotherapy and medications for the next 38 years of her anticipated life. 11. For future economic loss, the plaintiff claimed a lump sum to take into account any time off work she would require for future surgery. Further, although her employment was secure, in the modern workplace, she may be disadvantaged on the open market for labour if she lost her job. As she had another 17 years of working life in front of her, this was a matter where she should be compensated for such disadvantage. Counsel relied on Jopling v Isaac [2006] NSWCA 299 as authority for s 13 allowing such damages to be assessed, notwithstanding the significant difficulties to be encountered in doing so. 12. With respect to future paid care, the plaintiff submitted that seven hours per week was a reasonable period of time for the plaintiff to be compensated by way of paid care. Notwithstanding that she carried out most of her domestic chores, she was required to do so in a piecemeal fashion, and the need for paid care was created because the work she did, caused her pain. One hour per week as submitted by the defendant, was a manifest under-compensation for the plaintiff and, the test being that of reasonableness, she could be compensated by way of seven hours per week at $40.00 per hour, relying on Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343. Further, it was submitted that there was support in the medical evidence for such an award given the guarded prognosis provided by Dr Kuo, the probable onset of osteoarthritis as asserted by Dr Giblin, and the possibility of an arthrodesis at a later date in the future. Even the defendant's expert, Dr Bentovoglio, had noted muscle wasting in the plaintiff's left lower limb, and noted that her symptoms were worsening. Assessment of damages 1. Having regard to the whole of the evidence, and accepting the plaintiff as a witness of truth, and as a woman who understated rather than embellished the effect of the injuries on her, I assess damages in this case as follows. First, non-economic loss I assess at 28% of a most extreme case pursuant to s 16 of the CLA. The plaintiff was an active woman prior to the accident, and has suffered a severe injury to her left ankle. This has affected her mobility and her ability to carry out all of her domestic, recreational, social, and even some of her working tasks. The injury has required invasive surgery, and may require further surgery into the future. It has had a severe impact on her life's activities and her ability to enjoy those activities, and there is no real dispute on the medical evidence as to the effect the plaintiff's injuries have had on her. 2. I note that past treatment expenses are agreed, and that the defendant is to have a credit for the amount paid by it of $7,985.00. 3. I award future treatment expenses as follows: 1. The weight of the medical evidence is that the plaintiff will require some future surgery. I accept her evidence that if advised to have that surgery, she would undergo it. However, the award of damages should be discounted as it will take place some time in the future. I therefore allow the sum of $15,000.00 for future surgery. 2. The plaintiff will require some physiotherapy in the future and ongoing medications by way of painkilling relief. For both those amounts I award the sum of $10,000.00. 1. I accept the plaintiff's calculation of the past wage loss suffered by the plaintiff and award the sum of $7,865.00, plus a loss of superannuation benefits of $865.00 2. In assessing damages for future economic loss pursuant to s 13 of the CLA, I proceed on the following assumptions: 1. That the plaintiff will continue to work for the foreseeable future in her present employment with Valspar. She has had an excellent employment history and has been with her present employer for almost eight years. However, that employment history demonstrates that she has changed jobs from time to time, and that may occur at some time in the future. 2. That the plaintiff will require further surgery at some time in the future, requiring her to take some time off work. The outcome of that surgery may further affect her ability to carry out her work, and also impact on her keeping her employment. 1. In the circumstances, the plaintiff is entitled to a modest cushion for damages for future economic loss, based on her ongoing disabilities, and to reflect the disadvantage she will have in competing for even sedentary administrative work on the open market place for labour, at some time over the next 17 years. However, there is no adjustment required for any loss that may otherwise have been sustained pursuant to s 13(2) of the CLA. I therefore award the sum of $20,000.00 for future wage loss. 2. The most contentious dispute concerning damages revolved around the plaintiff's claim for future paid care. I accept the plaintiff's submission that the need for such care has been made out. Her husband is disabled, and unable to provide her with any assistance - see Ex J. The defendant's allowance of one hour per week underestimates the need for that assistance. The assistance the plaintiff requires is in respect of cleaning that involves her being on her feet, for both internal domestic chores and external work, and, in particular, work involving any heavy activity. Some of that activity will involve weekly cleaning, and some of it will relate to other chores done on a seasonal or irregular basis. Doing the best I can, I award the plaintiff four hours per week, as an average, to compensate her for that loss. The parties agree that $40.00 per hour is a reasonable, commercial charge and the multiplier is 902. I therefore award the plaintiff the sum of $144,320.00 for future paid domestic assistance. Summary of the award of damages 1. I therefore have assessed the plaintiff's damages as follows: Non-economic loss – 28% $83,000.00 Past out of pocket expenses $11,285.00 Past wage loss $7,865.00 Past loss of superannuation benefits $865.00 Future treatment expenses $25,000.00 Future wage loss $20,000.00 Future paid care $144,320.00 Total $292,335.00 Conclusion 1. The defendant is entitled to a credit for treatment expenses of $7,985..00. There will therefore be a verdict and judgment for the plaintiff against the defendant in the sum of $284,350.00. 2. The defendant to pay the plaintiff's costs of the proceedings. Orders 1. I make the following orders: 1. Verdict and judgment for the plaintiff against the defendant in the sum of $284,350.00. 2. The defendant to pay the plaintiff's costs of the proceedings. 3. The exhibits to be returned. 4. Liberty given to the parties to apply on seven days' notice for any special costs order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2016