District Court New South Wales Medium Neutral Citation: Corrigan v Coles Supermarkets Australia Ltd (No 2) [2017] NSWDC 238 Hearing dates: 24, 26, 27, 28 April; 1 and 2 May 2017 Date of orders: 08 May 2017 Decision date: 08 May 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the defendant. (2) Plaintiff to pay the defendant's costs. Catchwords: NEGLIGENCE – slip and fall – supermarket – water – right elbow injury – system of inspection and cleaning Legislation Cited: Evidence Act 1995, s 64 Civil Liability Act 2002, s 5B, s 5D, s 15 Cases Cited: Prasad v Woolworths Limited [2017] NSWDC 79 Category: Principal judgment Parties: Michael James Corrigan (plaintiff) Coles Supermarkets Australia Ltd (defendant) Representation: Counsel: Mr S Roulstone (plaintiff) Mr D Priestley (defendant) Solicitors: LHD Lawyers (plaintiff) McCulloch and Buggy (defendant) File Number(s): 2016/60944 Publication restriction: None Judgment A. INTRODUCTION 1. Michael Corrigan slipped, fell and fractured his elbow at the Coles Engadine store on 11 November 2015. He sues Coles for damages. B. ISSUES 1. The proceedings raise the following issues: 1. Was the floor wet when Mr Corrigan slipped. 2. Was Coles negligent in failing to have a proper system: 1. to identify and remove water on the floor; or 2. to lay a mat in the area of the wet floor. 1. Would the precaution of an appropriate system involving a dedicated person to identify and remove water or the precaution of utilising a mat in the area of the wet floor have prevented the injury to Mr Corrigan. 2. What percentage of a most extreme case should be adopted in relation to Mr Corrigan's injuries and disabilities. 3. What amount of future medical expenses is Mr Corrigan likely to incur as a result of his fall. 4. What level of domestic care was provided to Mr Corrigan as a result of his fall and injuries and what level of care is reasonably needed for the future. 5. What is the proper quantum of damages. 1. Other matters pleaded, including other particulars of negligence and some statutory claims, were not pressed at trial. C. WAS THE FLOOR WET? 1. By his counsel, Mr Corrigan conceded that a wet floor where Mr Corrigan slipped was an essential component of proof of his entitlement to damages for negligence. He expressly disavowed any assertion that Coles needed to take precautions against a risk of him falling because he was wearing wet thongs. The evidence that the floor was wet is of three types: an inference from Mr Corrigan's evidence; a contemporaneous statement by Mr Corrigan; and observations by Coles employee, Aleta Schutt. (a) MR CORRIGAN'S EVIDENCE 1. Mr Corrigan gave evidence that he parked near the front entrance door. He had his dogs in the car. He was intending to buy some dog food. It was raining, "medium rain" he said. He was wearing thongs. He walked from his car to the front door, a maximum distance of five metres, and entered the store. 2. There was a mat just inside where Mr Corrigan wiped his feet on the dry left-hand side of the mat, walked off the mat, slid his feet along the floor "to make sure there wasn't any water" and continued. On his first or second step thereafter his right foot "slipped straight out from underneath" him. He said he was unconscious and woke in extreme pain, then blacked out, then awoke and was spoken to by Ms Schutt. Ms Schutt asked him if he was okay. He could not recall his reply. A customer named Rick came into the store and helped Mr Corrigan sit up by putting his knee against Mr Corrigan's back. Mr Corrigan noticed that his back "was a bit damp" and "especially when Rick put his knee and helped me up I noticed that there was a damp on, especially on, the right-hand side of my back. I could feel the water". 3. Mr Corrigan was wearing a flannelette shirt with a cotton shirt underneath. When asked: "You said you'd noticed some water in your shirt as your lied on the floor, or as you got up," Mr Corrigan again recounted noticing that his back was a bit damp, more so when Rick put his knee in Mr Corrigan's back. 4. Mr Corrigan made no other observation of the state of the floor. When asked if he saw anything in relation to the "water on the floor" while waiting for the ambulance, Mr Corrigan said he "was basically facing the other way". 5. Mr Corrigan vomited on the floor when, with Rick's assistance, he moved about a metre or so to be away from customers. The ambulance took about 45 minutes to arrive. Mr Corrigan had a conversation with the female ambulance officer, the contents of which he could not recall. He was then transported to Sutherland Hospital. (b) CONTEMPORANEOUS STATEMENTS 1. Mr Corrigan gave no evidence of telling anyone that the floor was wet. However, Maree Richardson, a Coles employee who attended on Mr Corrigan with Ms Schutt, gave evidence that Mr Corrigan had said that he slipped. When asked, "Did you say on what or how?" Ms Richardson answered, "Well, he said water. He said, 'I, I slipped on the floor. There was a wet floor.'" Ms Richardson said she could not remember the exact words but "he made reference to water". I note that s 64(3)(b) of the Evidence Act 1995 allows evidence of this representation of Mr Corrigan to be evidence of whether the floor was wet. 2. Similar evidence is contained in medical records. The admission notes of Sutherland Hospital record "slip and fall on wet surface" and medical reports 12 days after the accident and 18 months after the accident indicate that Mr Corrigan asserted that he had "slipped on a wet floor". Other medical notes five days after the accident and 17 months after the accident, in a form not so helpful to the plaintiff, record "slipped walking into Coles during rain". (c) OBSERVATIONS OF ALETA SCHUTT 1. Ms Schutt was the "first aid person" at the Coles Engadine store. She was about to leave at the end of her shift when she was called by Ms Richardson to assist Mr Corrigan immediately after the fall. Ms Schutt attended to Mr Corrigan for about half an hour. She gave evidence, "As I was leaving the store, I noticed that there was just a little bit of water around the edge of the mat," at the front door. That occurred at approximately 6pm, as ambulance records indicate the fall occurred at about 5.30pm. (d) OTHER SUPPORTING EVIDENCE 1. Mr Corrigan, in submissions, also referred to an incident report where Mr Luke Weller, the Coles store manager, noted as future action "monitor floor area for spills or rainwater". Mr Weller gave evidence. 2. I do not accept that this reference in the incident report without more is evidence that there was water on the floor, any more than it indicated that there were "spills" on the floor, which neither party submitted. It purported only to record proposed future conduct. Other parts of the document were contrary to the inference that the reference to "monitor floor area for…rainwater" arose from the presence of rainwater on the floor. (e) CONTRARY EVIDENCE 1. The first aid employee, Ms Schutt, gave evidence that she had a good look at the floor "where he fell" and she said it "was not wet". Ms Schutt volunteered that it was not wet "where he fell" but that it was wet "just near the mat", as I indicated earlier. 2. Ms Richardson, the other Coles employee, heard the "thud" of Mr Corrigan falling and immediately attended to Mr Corrigan. She gave evidence that "the floor was dry" and subsequently asserted "otherwise I would've had to call the cleaner to come and mop it all up". Ms Richardson said: "I checked all around. I can only [say] what I saw and there was no water, there was no water tramped from the mat right through. You would've seen footprints. There wasn't any." When pressed about this matter and whether she answered Mr Corrigan's reference to water, Ms Richardson adhered to her evidence, "No. I went and checked the floor. I made sure that the floor was clear of water and there was no water." 3. Davina Hall, the ambulance officer, gave evidence of remembering the incident. In cross-examination, she recalled that the weather conditions were wet. She was asked, "Did you see any water on the floor?" and she answered, "Wasn't looking." She filled out the ambulance record that day before leaving the hospital and stated of the record, "I can remember the incident. I can remember details and that just brings it back exactly as I do remember." She was asked, "Reading it now is there anything about it that gives you cause to doubt the accuracy of any of it?" She answered, "Absolutely not." 4. The ambulance records stated that Mr Corrigan "states fell awkwardly…states shoes were slippery and wet despite his best efforts to dry them on a mat supplied at front of shop." 5. Ms Hall was not cross-examined about the contents of her note. Mr Corrigan gave evidence that Ms Hall had asked him some questions and he could only remember that he told her of the location of his pain. 6. Store manager, Luke Weller, arrived some time after the fall. He gave evidence that Mr Corrigan had told him that he had slipped but Mr Corrigan did not say how he had slipped. Mr Weller looked for water on the floor from the entry right through to the trolley bay but did not see water. He said, "[T]he floor inside the store was seemingly clear and dry." 7. Colin White was an employee of Coles Services, the store cleaning and trolley recovery arm of Coles. He said he had inspected the store entrance on a number of occasions during the day "Every time I pass with the trolleys", "at least every two minutes or ten minutes." 8. Mr White remembered "having to clean up some sick on the floor", that "on that day I was called to do that" and that he did not do other work relating to the incident that he could remember. In cross-examination, Mr White gave evidence that he did not see any water near the area where he cleaned up the vomit nor in the area next to the mat. 9. The Coles incident report to which I earlier referred recorded, "Floor was inspected prior to and during incident, there was no spills or water evident." (f) QUESTIONS OF CREDIT 1. Coles submitted that I should not accept the evidence of Mr Corrigan. Yet there was little, if anything, in Mr Corrigan's demeanour that caused me to disbelieve his evidence about the incident. He was generally straightforward in his answers. There were matters that he could not recall but none of that caused me concern about his honesty. He gave no evidence about seeing water on the floor or saying that he saw water on the floor, although he could not have failed to appreciate that water on the floor was important to his case. Generally, I found him to be a satisfactory witness doing his best to recount what he had experienced, heard and observed of the incident. 2. There seemed to be little in Mr Corrigan's evidence about the circumstances of the fall that Coles disputed. Coles identified three matters: Mr Corrigan wiping his thongs, the dampness of his shirt, and the evidence that the mat was variable in its wetness and dry in places principally on its left side. There was no contrary evidence on any of these matters. 3. As to Mr Corrigan's shirt, Ms Richardson was asked whether she had observed whether Mr Corrigan's shirt was wet, but she did not recall that and did not look at his back or clothes. 4. As to the mat, there was evidence that traffic through the relevant entrance door predominantly proceeded to the right, which tends to support evidence that the left of the mat would be drier than the right on a wet day. 5. Insofar as Mr Corrigan wiping his thongs on the mat and the floor are concerned, the ambulance record made reference to the condition of his footwear, "despite his best efforts to dry them on a mat". This supports Mr Corrigan's evidence that he diligently wiped his thongs as he entered. 6. Other evidence of Mr Corrigan was corroborated. He stated that, "there's residual water around the mat where…people walk off." That evidence finds some support in the evidence of Ms Schutt, that when she left "there was just a little bit of water around the edge of the mat". 7. Accordingly, I accept both the honesty and reliability of Mr Corrigan's evidence on the circumstances of his fall as he described them. 8. My view of Mr Corrigan's evidence on the extent of his disabilities, with which I will later deal, does not alter my view of this. This is not to say that Mr Corrigan's recollection might not have been affected by his undisputed recollection of coming to the store many other times on wet days. His habitual practice of wiping his feet might render more reliable his evidence of doing so on this occasion as he entered the store. Evidence of his past problems with anxiety would not be a reason to doubt his care in wiping his feet. 9. Nor do I find any reason to doubt the honesty of the other witnesses. There was no challenge to Ms Hall's evidence, and the four Coles witnesses I found generally to be careful in listening to the questions and answering them as best as they were able. On occasions, Ms Richardson was prone to attempt to buttress her conduct with reasons - such as her evidence that she saw no water otherwise she would have called Coles Services - or with speculation, such as that the water Mr Corrigan spoke of, "could've been off his thongs." But both Ms Richardson and Ms Schutt made concessions against the interests of Coles: Ms Richardson's evidence of Mr Corrigan speaking of water on the floor; Ms Schutt's evidence of water near the edge of the mat. Those concessions assist their credit, in my view. 10. So I accept that each witness was doing their best to recall what they observed. 11. On the one hand, the event was of great significance to Mr Corrigan and that might sharpen his recollection of events. On the other hand, he himself gave evidence of having some memory issues. He also claimed to have been unconscious or having blacked out at times (a matter not supported by Ms Hall's report, though she arrived some 40 minutes after the fall) and there were details including conversations that he was unable to recall. The circumstance of a serious slip injury coupled with vomiting was unusual at the store which might tend to sharpen the memories of Ms Richardson and Ms Schutt, who were present from immediately after the fall. (g) CONCLUSIONS 1. Whatever recollections witnesses may have had of other matters, the detail of most importance is whether the floor was wet. No one gave evidence that it was save for the area around the edge of the mat. As to this, Mr Corrigan gave evidence of residual water around the mat and of having slid his feet, he said, to, "make sure I'm past there, if there's any area that's a problem I'm, I was past that, so I thought". This evidence indicates that the area of any water around the mat was not the area of the fall as Mr Corrigan recognised that area to be a "problem" and that he "was past that". He walked away diagonally from the mat and was, on his evidence when marking the location of his slip, perhaps two metres away from the mat. 2. Whether Mr Corrigan was two metres away from the mat, as his evidence indicates, or further down the walkway to the trolleys, as Ms Richardson and Ms Schutt testified, was not crucial. On either view he was well clear of any water next to the edge of the mat, the residual water of which he spoke. 3. Ms Hall gave no evidence about water on the floor and when Mr Weller arrived, some time after the fall, conditions may have been different. But Ms Richardson and Ms Schutt were present near Mr Corrigan almost immediately, and Mr White soon after. These three employees said they checked and were adamant that there was no water. Mr Corrigan did not assert that he saw any water. In those circumstances, the weight of evidence indicates that there was no water apparent or present at the location of the slip after the fall. 4. Mr Corrigan submitted that the absence of water might be due to his damp flannelette shirt. It might. However, it seems to me unlikely that a fall onto a floor would immediately remove all pre-existing water or wetness. There was no evidence that the area under Mr Corrigan was examined but he was moved a metre or so with the assistance of "Rick". Also, Mr Corrigan submitted that the place where he lay may have been further along the walkway than the place where his foot slipped. These matters indicate that there was nothing, including Mr Corrigan, that was covering the place where Mr Corrigan slipped or prevented it from being inspected by Ms Richardson, Ms Schutt or Mr White. I note that Mr Corrigan's evidence that "it", presumably his right foot, slipped "forwards, like a cartoon character" left some uncertainty about whether his body moved any great distance from where his foot slipped. 5. In all these circumstances, I am not satisfied that there was water on the floor in the area where Mr Corrigan's right foot slipped. His evidence of a damp shirt is insufficient to establish the presence of water. There was no evidence of whether his shirt was dry when he entered the store. There was no evidence of whether he had spent any time in the rain prior to arriving at the store (including when getting his dogs into the car) or how wet it became when he walked the short distance in medium rain from his car to the entry doors. 6. Nor was there any evidence of whether Rick or his knee was wet from the rainy day. Nor does the circumstance of Mr Corrigan slipping over constitute evidence that there was water on the floor. 7. The soles of Mr Corrigan's thongs were worn but the evidence did not permit any inference about whether that rendered them slippery on the (dry) Coles floor surface. Mr Corrigan did not take any greater care in walking on this wet day than usual although he had never slipped before and routinely wore thongs. I also think it is at least possible that some water remained on some parts of the soles of Mr Corrigan's thongs even if they were wiped when he entered the Coles store. 8. Mr Corrigan gave evidence that within a day or so after the fall that he purchased some "duck's feet sandals", apparently the best gripping open footwear in the wet that he could find because he could not afford to slip again. Whilst this evidence indicates that Mr Corrigan noted some deficiency in his thongs, I am not persuaded that it indicates anything about the presence or absence of water on the floor. D. THE COLES SYSTEM: QUESTIONS OF BREACH OF DUTY 1. I propose to deal, at least briefly, with the other issues raised in the proceedings. 2. Section 5B of the Civil Liability Act 2002 provides that: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. Foreseeability and a not insignificant risk were conceded by Coles. The issue was the precautions alleged by Mr Corrigan that would have been taken by a reasonable person. In considering that issue, s 5B(2) requires consideration of the probability of harm (not insignificant given the evidence that a number of slips and falls had occurred previously at the store); the likely seriousness of the harm (it must be accepted that a slip and fall in the store could cause serious injury); and the social utility of the activity that creates the risk of harm (walking on a rainy day into a store, perhaps the use of thongs or shopping trolleys on wet days). 2. The subsection also requires consideration of the burden of taking precautions to avoid the risk of harm. This involves a consideration of the precautions taken by Coles and the precautions advocated by Mr Corrigan. Coles conceded that the floor was slippery when wet. The precautions it took to avoid slip and fall accidents involved having a mat at the entry doors to lessen water ingress; placing a yellow A-frame warning sign near the entry on rainy days and at the site of any slip; sometimes placing an umbrella bucket near the entry; adopting a "clean as you go" system for staff at the store; employing a Coles Services employee to look for and clean up any water and spills; and empowering the Coles Services employee to request mats from the fresh produce section on wet days. 3. As to these precautions, there was no evidence of the utility of the "clean as you go" system. It did not require ordinary Coles staff to look for foreign matter on the floor. In respect of clear substances on the floor, which are unlikely to be readily visible and thus unlikely to be noticed without someone looking for them, I am not satisfied, without further evidence, that it was a reasonable system for detecting and removing hazards on the floor (cf Prasad v Woolworths Limited [2017] NSWDC 79 at [13]-[14]). 4. The system of staff placing a warning sign near an identified hazard may assist to prevent future falls, but in respect of water or other clear substances which are unlikely to be noticed under a "clean as you go" system unless a slip has occurred, it is not an effective precaution. Obviously a warning sign being placed near where a person such as Mr Corrigan fell after the fall is of no utility to that person. 5. The other steps taken by Coles do seem to be of benefit. The mat at the entry door allows customers to wipe their feet, as Mr Corrigan did on this occasion, and a warning sign at entry on rainy days is a reminder to customers to be more careful in and about the store. An umbrella bucket may help. It was not in place on this day, although that was not alleged by Mr Corrigan to be a negligent failure. In any event, none of these approaches involve any action to remove the hazard. That is left to the Coles Services employees. 6. Coles Services is a section of Coles responsible for retrieving trolleys and cleaning the premises. From 9am to 6pm there was one Coles Services employee on duty at the Engadine store, Mr White. His duty involved gathering trolleys from the car park, storing them in an undercover section next to the store, and bringing them to the trolley bay inside the store to replenish the stock of trolleys available. He was also responsible for emptying bins, cleaning the restrooms and cleaning the floors. It was his duty to wipe up any water or spills with a dry mop from his cleaning trolley. The trolley also carried a wet mop, warning signs and other materials. 7. As indicated, Mr White was summoned when Mr Corrigan vomited. He mopped up the vomit and placed a warning sign. He did not see any water and was not called earlier in respect of a wet floor. This is consistent with Ms Richardson's evidence that she did not call Coles Services when she first went to Mr Corrigan's assistance because she looked for and found no water. 8. Mr White gave evidence that during the latter part of his shift, from about 3.30pm onwards, he was busy ensuring that the trolley bay was completely full and that the trolleys were retrieved from the car park. This involved regular trips to the internal trolley bay which took him directly past the area of the floor on which Mr Corrigan slipped. Mr White said that the trolleys did not bring much water into the store because of collisions he effected in the undercover storage area to displace water from the trolleys, because they are run along the concrete, and because the trolleys are held there undercover and the dry trolleys are taken into the store first. In any event, he said that he was also looking to check that the floor was dry and that he journeyed to the trolley bay every two to ten minutes. 9. Mr Corrigan submitted that Mr White did not notice the water near the mat that Ms Schutt observed. Ms Schutt's observation was some 30 minutes after the fall, by which time Mr White may have finished his shift but, in any event, Mr Corrigan's evidence of "residual water" near the mat seems not to have been observed by Mr White. Mr Corrigan submitted that one precaution Coles should have taken was to have an employee dedicated to inspecting floors and mopping up water and spills rather than utilising an employee who was also responsible for the trolleys. I have some doubt as to whether Mr White's observation of the floor areas, especially in a busy late afternoon, would constitute reasonable precautions against spillages in the aisles of the supermarket. His focus on retrieving trolleys at that time would leave little time to inspect the aisles. But his retrieving of the trolleys meant regular journeys along the front internal walkway of the store across the area Mr Corrigan walked. To have an employee who was walking in that area checking the floor to ensure it is dry and mopping up any water or spills noticed, seems to me to be a satisfactory system to ensure a dry floor even if the employee is also pushing trolleys. 10. Mr White was a careful and satisfactory witness. He had been a safety officer at the Roads and Transport Authority prior to his employment at Coles Services early in 2015. I accept that he did look out for water as he said in his regular journeys to the internal trolley bay, that if he saw water on the floor he would get his cleaning trolley and use the dry mop and the warning sign and that he did not do so on this day because the floor was not wet. Mr Corrigan criticised Mr White's credit on the basis that Mr White did not recall meeting Mr Corrigan, although he must have walked past him a number of times. But that does not establish that he was not being observant of water. It seems just as likely that he was not being observant in respect of Mr Corrigan, who was being treated by two other staff including the first aid employee, perhaps because he was more focused on his duties. I do not accept that a reasonable person in Coles' position would regard the employment of Mr White as insufficient to recognise and remove slipping hazards in the front area of the store and that another employee was reasonably needed. The position might be different in respect of other areas of the store. 11. Mr Corrigan also submitted that another precaution a reasonable person would have taken would be to place another mat along the front section of the store on rainy days. Mr White gave evidence that on rainy days, including on this particular day, he requested an extra mat or mats from the fresh produce section and on this day, none were available. Mats were used in the fresh produce section because of the danger of a slipping hazard being created from grapes and other fresh produce falling on the floor. It must follow that if Mr White requested mats on rainy days, then on some rainy days, perhaps even when the floor was not wet, an additional mat would be located at the front of the store. That does not mean that a reasonable person would take that precaution on every rainy day. The mats would be of limited utility to prevent slips if the floor was dry, as I have found. The evidence was not clear as to whether the extent of the rainy conditions - for example, heavy storms resulting in significant water entry (either directly or from umbrellas, customers and trolleys) - would impact on whether a mat would be available from the fresh produce section, or whether the decision was based entirely on the needs of that section. However, the conditions and level of water on this day did not require a mat. Further, there was evidence of incidents involving tripping on mats and a question would arise about the safety of changing the floor surface repeatedly between a mat and a smooth floor. These risks would need to be balanced against the risk of slipping. 12. In my view, in the absence of water on the floor, I was not satisfied that a reasonable person would take the precaution of placing an additional mat in the front of the store. In all the circumstances, I was not satisfied that there was a lack of reasonable precautions taken or a lack of an appropriate system to guard against slipping in the area at the front of the store where Mr Corrigan fell. E. CAUSATION 1. Section 5D of the Civil Liability Act 2002 requires, at least in the circumstances of this case, "that the negligence was a necessary condition of the occurrence of the harm". In other words, would the engagement of an employee to inspect and clean, with no trolley duties, or the use of another mat, have prevented the harm to Mr Corrigan? 2. If the engagement of Mr White was not an appropriate system to identify risks because his other duties might divert his attention away from noticing water on the floor, a question arises as to what would have occurred if an employee was solely engaged in inspecting and cleaning. Even if, contrary to my findings, there was water on the floor which Mr White missed, the evidence in this case does not allow me to infer that another worker would have observed that water. There was no evidence or submission as to how long any water was present, and no evidence that would allow me to exclude or deny the real possibility that any water may have come onto the floor immediately before Mr Corrigan arrived. It was not submitted that an inspection interval of two to ten minutes was infrequent. Thus, any failure in the system of detecting and removing water is not established to have factually caused the slip to Mr Corrigan. 3. The alternative allegation of negligence was based on the absence of another mat. Mr Corrigan submitted that additional mats along the front part of the store had been previously used. The evidence of Mr White that he did seek another mat supports this submission. Where that mat would have been placed had it been available, and whether it would have covered the area where Mr Corrigan fell, was not the subject of precise evidence. The length of the mat was five metres approximately, to be located in a distance of about eight metres or so. On the balance of probabilities, if an additional mat was obtained, I think it would have covered the area where Mr Corrigan fell. Coles did not dispute that the width of the mat was sufficient to cover the area where Mr Corrigan fell, and that if the mat did cover that area, he would not have slipped. 4. Accordingly, factual causation would be established if Coles was negligent in failing to place a mat along the front internal walkway to the trolley bay, but not if the breach involved retaining an employee for the exclusive role of inspecting the floor for spills and water and removing any such hazards. F. DAMAGES 1. Mr Corrigan suffered the pain of a broken elbow. He described that even now some 18 months after his fall, even and when at rest, he still suffers pain that he rates at 5 on a scale of 1 to 10. Of his current restrictions, he says they are "everything, literally everything…it's in effect still a broken arm". He wears a sling about six hours a day because he says straightening his arm causes pain. He is right-handed but says that his right arm has 5% of the power of his left arm. He can still drive a motor vehicle, largely with his left hand. 2. A short video was shown of Mr Corrigan. At one point he was not wearing a sling although as he approached the car his right arm was unnaturally bent, indicating he was disabled to some extent. He entered a motor vehicle using his right hand to open the door and to close the door. He then appeared inside the car to largely use his left hand to install his sling on his right arm. Another video showed Mr Corrigan resting his right arm on the steering wheel, moving his fingers. On another occasion, inside a home, he is seen moving his arm as he talks. 3. My conclusion from the video was that Mr Corrigan does have some ability to use his right arm, but there was nothing in the video that demonstrated that Mr Corrigan did not have a significant residual disability. 4. Scans of Mr Corrigan's right arm showed evidence of two loose bodies in the region of his elbow, one of an "ossified body in the olecranon fossa". His orthopaedic expert, Dr John Bentivoglio, reported that, "Mr Corrigan has lost movement present in his elbow with decreased extension present in his elbow. This will not recover". Dr Bentivoglio also reported a "step present in the articular surface of his radial hand," that Mr Corrigan has a significant chance of developing degenerative changes in his elbow at a later stage but that he would not likely benefit from the removal of the loose bodies. 5. Although treating doctors initially thought Mr Corrigan's level of pain and range of movement would improve, there is limited evidence that this has occurred. Dr Hugh Jones considered that the litigation may affect the outcome of any intervention, including surgery. Like Dr Bentivoglio, he accepted that there may be little to gain from surgery. 6. Dr Faithful, the defendant's orthopaedic expert, reported that: "synovitis or [effusion]…was reported in the CT scan and MRI scan [in March 2016] so there might still be some inflammation in the joint and this would be the cause of the constant pain Mr Corrigan's having". He also stated, "He does seem to have a lot of pain and the elbow is very tender". 7. I did not observe any manifestation of pain in Mr Corrigan whilst he was in the witness box except when he indicated the extent of his ability to straighten his arm. His self-assessment of a pain level of five may be an assessment that indicates a different level of pain to different people. He takes painkillers regularly, including Panadeine Forte, although that practice has existed for many years before the accident. He is also a long-term user of Zoloft, Valium, Mogaden and Murelax. 8. Mr Corrigan has been on a disability pension for more than a decade. He has had problems with depression and anxiety, with his gums, with a previous knee injury and a head injury. He is 47 years old and has not been employed for many years. In my view, Mr Corrigan suffers pain in his elbow regularly, although not so much when he is at rest. Use of his right arm on anything strenuous is either beyond him or will likely bring him pain. The use of his arm is thus significantly restricted. 9. Mr Corrigan gave evidence of being able to do little by way of domestic tasks. His mother visits him on most Sundays and does most of the domestic tasks: washing, hanging clothes on the line, cleaning and cooking. However, she had done similar tasks for him on weekly visits before the accident. Apart from food made for him by his mother, Mr Corrigan generally buys takeaway. He would be able to make a bowl of cereal or a sandwich, being careful in the use of his right arm, but he seems to prefer not to do that. (a) NON-ECONOMIC LOSS 1. Mr Corrigan claims that his injuries are equivalent to 40% of a most extreme case, a level his counsel described as "not entirely unrealistic in a case of this nature". Coles asserted initially that 23% was an appropriate percentage, but retreated to a level of about 20% or so in submissions, on the basis that there was little wrong with Mr Corrigan, some restriction but the pain was greatly exaggerated. I do not accept that submission. However, 40% seems to me to be excessive, particularly because Mr Corrigan's lifestyle, medication and employment have not substantially changed from before the accident. I would allow 30% of a most extreme case, equating to $139,000. (b) MEDICAL EXPENSES 1. Past medical expenses were agreed at $2,109.10. 2. For the future, Mr Corrigan will continue taking Targin, an opioid analgesic, the expense for which was allowed by Coles as part of out-of-pocket expenses. Mr Corrigan claims a buffer of $15,000 for future consultations, analgesic medication, cost of arm slings and physiotherapy. 3. Mr Corrigan has resisted obtaining physiotherapy and I would not allow that as a likely future expense, but the other amounts seem reasonable. He has a life expectancy of 37.58 years. 4. Mr Corrigan also claims the cost of an arthroscopic debridement of the right elbow and removal of the loose bodies at a cost of $7,500. But the utility of such an operation is doubtful and, in any event, Mr Corrigan has resisted it. Accordingly, this figure might be discounted and I would allow $3,000 against the possibility of the operation. Together with $10,000 I would allow for future medical consultations, medication and slings, the buffer for future medical expenses would be $13,000. (c) CARE 1. Mr Corrigan claims damages for gratuitous care of eight hours a week since the fall, and for future care and assistance of at least three hours per week. 2. Mr Corrigan lives in a granny flat at his father's house. In October 2016 his father died. After Mr Corrigan's fall, his mother, who lives some substantial distance away in Emu Plains, stayed most nights of the week at Engadine to care for Mr Corrigan and his father. That level of care lessened after Mr Corrigan Sr went into palliative care and then passed away. When that occurred, Mrs Corrigan returned to her previous practice of visiting Mr Corrigan once a week as she had done prior to the accident. It appeared to me that most of her time, excluding the initial period in the month or so after the accident, was devoted to caring for Mr Corrigan's father, whose condition was declining. 3. Coles resists any award for care, past or future, and relies on s 15(2) and (3) of the Civil Liability Act 2002. Most of Mrs Corrigan's care for Mr Corrigan would have been provided, in any event, as she did before the accident and when I take into account the care provided for Mr Corrigan's father, I am not satisfied that the care provided to Mr Corrigan exceeded six hours per week for six months. Although Mrs Corrigan still continues to care for her son weekly, she is not in good health. I think it likely that he will need attendant care services at the commercial rate within ten years. Although he might be able to do domestic tasks with his left arm, he has not done that in the past. These would be services of a domestic nature which would "alleviate the consequences of an injury" under s 15(1) of the Civil Liability Act 2002. I would allow the three hours per week claimed. The 37.58 years must be discounted because of the circumstance that for the immediate future, Mrs Corrigan will continue to provide services and because care would likely be needed in the latter years of Mr Corrigan's life, in any event. I would allow the sum of $60,000, being for about half of the period claimed. (d) CONCLUSION 1. Accordingly, if Mr Corrigan were entitled to damages, I would calculate them to be $139,000 in respect of non-economic loss, $15,109.10 in respect of past and future medical expenses, and $60,000 in respect of attendant care services, a total of $214,109.10. G. ORDERS 1. For the reasons given above on liability, the orders of the Court are: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs. ********** 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: 11 May 2018