District Court New South Wales Medium Neutral Citation: Christie v Herro t/as Chemist Warehouse Oxford Street (No 2) [2018] NSWDC 237 Hearing dates: 17 – 18 May, 18 June 2018 Date of orders: 19 June 2018 Decision date: 19 June 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: I give verdict and judgment for the plaintiff against the defendant for $248,603 I order the defendant to pay the plaintiff's costs on the ordinarily basis until Thursday 10 May 2018, and thereafter on an indemnity basis. Catchwords: CIVIL – TORTS – Negligence – Occupier's liability – Ramp supporting display stand encroaching on footpath – Trip and fall – Whether contributory negligence – Damages – Claim for future paid care/domestic assistance Legislation Cited: Civil Liability Act 2002 Cases Cited: Hornsby Shire Council v Viscardi [2015] NSWCA 417 Category: Principal judgment Parties: Beverley Christie (Plaintiff) Tony Herro trading as Chemist Warehouse Oxford Street (Defendant) Representation: Counsel: Mr M Inglis (Plaintiff) Mr J Sleight (Defendant) Solicitors: Commins Hendricks (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2017/171889 Publication restriction: Nil Judgment 1. HIS HONOUR: The plaintiff, Mrs Beverley Christie, brings an action for damages or personal injury which she says she sustained on 15 November 2015. The plaintiff's action is in the tort negligence. 2. At the time of the event in question, the plaintiff was 68 years old. She had been staying that weekend at a flat in Edgecliff in order to be with her extended family living in Sydney. The plaintiff had and has four adult sons and six grandchildren, all living within the Sydney metropolitan area. The plaintiff and her husband normally reside at 27 Church Avenue, Colo Vale in the Southern Highlands. The accident 1. The plaintiff and her husband, Mr Neil Christie, had gone from the flat at Edgecliff to the Westfields Shopping Centre at Bondi Junction. She went there to attend, inter alia, the Chemist Warehouse situated at 211 Oxford Street, Bondi Junction. The defendant is the owner of that pharmacy. 2. The plaintiff approached the pharmacy in the direction, from the foot of each of the photographs numbered D, heading towards the top of each of the photographs numbered D. To enter the pharmacy the plaintiff needed to turn left into the pharmacy from the footpath. She did so. She completed whatever business she had to transact there and as she left the premises she turned left out of the entrance of the pharmacy and according, to the statement of claim, she tripped on a "temporary ramp." The "temporary ramp" has been described in a number of ways. Mr Neil Christie described it as a plinth. I could describe it as a wedge. However, I will seek to use the terminology "ramp", that assigned to the item in the statement of claim. 3. The ramp could be described as a type of box structure but the cross‑section of that structure is a right angled triangle. One end of the ramp lies at the same level as that which supports it and the other end of the ramp is an upright structure which appears to be a few inches above the level on which the ramp is placed. The end of the ramp near the entrance to the pharmacy was hollow. I assume the other end of the ramp was also hollow, that is, if it were a box there was no covered end. 4. The purpose of this ramp was to support the caster wheels of a display stand. The display stand can be seen in each of the photographs which are in exhibit D. The display stand looks familiar to a lawyer as it resembles a book trolley, the type of trolley brought into Court by counsel carrying multiple lever arch binders which may constitute a brief and/or a large number of law books which are to be cited in argument in the court into which the book trolley is taken. The book trolley type structure appears to be longer and probably narrower than the book trolleys used by lawyers. It was clearly designed to display items on sale at a special or discount price. The need for the ramp was because the wall of the pharmacy adjacent to the footpath was elevated and set back from the footpath by a row of tiles, cream in colour, which raised the floor of the pharmacy above the level of the footpath. That elevation of the level of the floor of the pharmacy is clear from photo 3 in exhibit D. Immediately on the left of the photograph 3 in exhibit D, one can see a pillar of the building and then a recessed wall. The raising level of tiles is followed by a row of tiles which appear to be horizontal, at the same angle as the footpath but at a higher level. 5. The display trolley was on the right-hand side of the pharmacy as one faced it from the footpath, or on the left-hand side of the entrance to the pharmacy as one was leaving the pharmacy. The trolley had been placed up against the wall of the pharmacy but the front wheels of the trolley would not have been at the same level as the rear wheels of the display trolley and, therefore, it was necessary to chock those wheels up so that the display trolley was vertical or plumb, and therefore unable to roll away from the position in which it was placed, that is, up against the front wall of the pharmacy. 6. It is clear from the photographs to which I have been referring that the ramp was black in colour. The row of tiles on which it has been placed are also black. That is most evident from photo 1 in exhibit D. The photo strongly suggests that the black tiles are part of the footpath and the beige-coloured tiles are part of the defendant's pharmacy because the tiles which are at an angle rising from the footpath level to the level of the pharmacy floor are beige as are the tiles leading into the pharmacy itself. That becomes clear when one looks at photos 1 and 3 of exhibit D. 7. The plaintiff's accident was captured on CCTV footage. That was shown to me on a number of occasions when the matter was before me in Wagga Wagga on 17 and 18 May this year. Unfortunately, it cannot be displayed to me today and could not be displayed to me yesterday here in Sydney because there are no facilities in this courtroom for displaying film. Probably the technology that is available in this Court would not match the technology on which the film has been stored. However, it is patently clear from looking at the CCTV footage that the plaintiff, accompanied by her husband, was exiting the pharmacy and turning to her left. The plaintiff's husband was on her right. Both the plaintiff and her husband gave evidence that it was necessary to turn one's head to the right in order to see any persons approaching on their right so that they would not walk into anybody walking past the entrance to the pharmacy along the footpath. I accept that that ought to have been done but it is clear that that would have been done by the plaintiff's husband who was on the plaintiff's right-hand side. 8. The plaintiff and her husband turned onto the footpath but the plaintiff's foot went into the open end of the ramp causing her to trip or stumble causing her to strike the display stand and then fall to the ground. The actually falling to the ground is not clear on the CCTV footage, but that is the evidence of both the plaintiff and her husband, which I am happy to accept in this regard. The plaintiff was rapidly brought back to her feet by her husband. There was an immediate reaction from a security guard and other staff of the pharmacy. The plaintiff in putting her foot into the ramp dislodged it, throwing it out onto the footpath, thus dislodging the display stand which also found its way onto the footpath. The evidence suggests that the ramp and the display stand were put back in place by the security guard in order that they not present a hazard to those using the footpath. 9. A significant aspect of the plaintiff's injuries, from the point of view of liability, is that the plaintiff injured her left great toe, her left foot being the one that entered into the ramp, thus causing the nail of the great left toe to be injured and it was eventually lost. That injured toenail is shown in one of the photographs which are exhibit G. There was also other damage to the plaintiff's left great toe on its medial side, and that can be seen in the second photograph of exhibit G. Those clearly show the effect of the plaintiff's left foot entering into the ramp. Liability 1. There is no dispute that the plaintiff was injured in that event. The effects of the injury are very much in dispute, but the findings I have made, together with the photographic and CCTV footage are sufficient to enable me to decide questions of liability. Section 5B of the Civil Liability Act 2002 provides this: "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. I firstly must identify the risk of harm involved. The risk of harm, is the risk of striking the ramp with one's foot. There is also the risk of the foot entering the ramp, causing a tripping effect, such as befell the plaintiff. There is also other risks of merely tripping on the ramp, if it was not observed. 2. The risk must be foreseeable, that is, it must be a risk which a person knew, or ought to have known to have existed. The person who knew, or ought to have know that the risk existed is the defendant. The risk is that a person, distracted whilst walking along the footpath, could strike the ramp with his or her foot. There is also the risk that one leaving the pharmacy, as the plaintiff was, could strike his or her foot whilst leaving the pharmacy but turning left to go along the footpath. The risk is foreseeable, people trip on many sorts of things, but this ramp intruded onto the footpath, protruded onto an area outside the defendant's pharmacy. 3. The risk must not be insignificant. A fall onto a footpath which is tiled, the tiles would appear to be made either of coloured concrete or of a hard rock such as granite, could easily cause a person who struck the footpath, with his or her head a fracture of the skull. Any fall of any person onto such a hard structure could cause, for example; the fracture of a hip, in a elderly person; or the fracture of an arm or a leg depending on how the person fell. The risk was not, in my view, insignificant. 4. The Act requires that in the circumstances, a reasonable person, in the defendant's position, would have taken some precaution. A precaution suggested by the plaintiff is that the ramp could have been painted a bright colour, so that its position would have been obvious. As I have indicated, it was a black structure on black tiles. It could have been painted bright red, it could have been painted bright orange, or it could have been painted bright yellow. Bright yellow appears to be part of the livery of the Chemist Warehouse Discount Chemist and it could equally have been painted bright red, which is another colour in the livery of the discount pharmacy here in question. 5. Of course there may have been other ways of chocking up the display stand, such as by affixing its top end in some fashion to the wall of the pharmacy, or if that wall were in fact a glass panel, of fixing the top end of the display stand to either one or both of the columns on either side of that area of the wall. The risk could also be minimised by filling in the open end of the structure, such that one could not put one's foot in it, causing one to trip. There might still remain the risk of one's hitting the end of the ramp with one's toe, that may cause a trip, but that is less risky than leaving the end of the ramp open. 6. Section 5B(2) requires me in determining whether a reasonable person would have taken precaution against the risk of harm to consider a number of relevant things. The first is that the probability of that harm occurring if care were not taken. Here there is a probability of harm, because this ramp was on a footpath, even if theoretically, it was part of the defendant's premises, the area was paved in such a fashion as to be a footpath, and that can be clearly shown by where people are walking in photographs D2 and D3. Any structure placed on a walkway offers the possibility of causing a trip, and experience teaches us, that the possibility often becomes a probability. I therefore have no hesitation in finding that there was a probability that harm would occur, if the defendant did not do something to mitigate the risk caused by the ramp as it was at the time of the plaintiff's accident. 7. The next thing I am required to consider is the likely seriousness of the harm. As I have said earlier, a broken bone, even a broken skull, can be the result of a trip and fall onto a hard surface. 8. The next thing I am required to consider, is the burden of taking precautions to avoid the risk of harm. There would appear to be little burden in enclosing the ends of the ramp, and there would appear to be little burden in painting the ramp bright orange, bright red, or bright yellow. 9. The other thing I am required to consider, is the social utility of the activity that creates the risk of harm. With the utmost respect to those of a commercial mind, there is no social utility at all in placing items on display on a trolley outside a store, it is merely for the benefit of the owner of the store, seeking to attract custom and has no social utility whatever. Even if it might be thought, that offering items on display at a discount rate does have some social utility, the extent of the social utility in this case, is clearly outweighed by the risk of harm to members of the public using the footpath and members of the public seeking to enter or leave the pharmacy itself. 10. I am required to consider the provisions of s 5C of the Act. Paragraph (a) does not appear to be relevant in this case. Paragraph (b) requires me to consider the fact that a risk of harm could have been avoided by doing something in a different way, does not, of itself, give rise to or affect liability, for the way in which the thing was done. Here, the thing being done was displaying items for sale, and the apparatus for that display included the ramp which was protruding into the public footpath. No suggestion has been put forward as to how things could be done otherwise, but this is not the sort of case where a thing has to be done and might be done in different ways, and each creates its own risk of harm. 11. Paragraph (c) of s 5C establishes the well-known point, that subsequent action taken by the defendant, with a view to minimising the risk of harm, does not itself give rise to or affect liability in respect of the risk of harm prior to the accident's occurring. I do not know what the defendant did long term after the plaintiff's fall, but I do know that immediately after her fall, the ramp and the display trolley were placed back into position. However, that does not mean that this arrangement continued to be something which did not offer a risk of harm to the plaintiff. 12. The defendant has pleaded that this case is one in which s 5D should be considered. Section 5D concerns two concepts; factual causation, that is, nexus between the accident and the injuries suffered by the plaintiff - an issue to which I shall in due course turn - and also the concept of scope of liability, that is, whether it is appropriate that the scope of the negligent person's liability extend to the harm so caused. Here, in my view, it is clear that the defendant's negligence, if established, ought to extend to the risk of this harm. The defendant created the obstruction onto the footpath for his own commercial purpose, one would think, and therefore it is appropriate that he bear the consequence of his commercial undertaking. 13. The provisions of the Act, which I have so far discussed, are the ones raised by the defendant in par 6 of the defendant's amended defence to the amended statement of claim. Contributory negligence 1. The remaining question, concerns contributory negligence. There are two par 6 in the amended defence to the amended statement of claim. Indeed, there are also two par 5 in that pleading. The par 6 to which I have earlier referred is the second par 6. The first par 6 is this: "As to the whole of the Statement of Claim, the Defendant says that if any injuries, loss or damage were suffered by the Plaintiff as alleged (which is denied) they were caused or contributed to by the plaintiff's own negligence. PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a) Failure to take any reasonable care for her own safety. (b) Failure to take adequate precautions for her own safety. (c) Failure to keep a proper look out. (d) Failure to pay proper attention to her surroundings. (e) Failure to take any or any reasonable precautions to prevent or reduce the risk of harm occurring in the circumstances." In my view, that pleading, merely contains two allegations of contributory negligence. The pars (a),(b) and (e) amount merely to a restatement of the allegation of negligence on the part of the plaintiff herself. Paragraphs (c) and (d) are the gist of the defendant's defence. This defence is governed by s 5R of the Civil Liability Act 2002. 1. It is patently clear from observing the film, that there was very little time between the plaintiff's turning left from the doorway of the pharmacy, to her foot entering the ramp, causing her to fall. That very little time would elapse, can be easily discerned, when one looks at the propinquity of the ramp to the entrance to the pharmacy, as shown in photograph D1. The plaintiff appeared to take one step, and then her left foot entered into the ramp. There was very little time to observe. 2. When one enters a footpath from a shop entrance, such as the entrance to this pharmacy, one would naturally look to see where one was walking, to make sure that one did not walk into somebody else using the footpath. As I have pointed out, the plaintiff was protected on her right hand side by her husband, obviating the need for her to look to her right. However, one does not look down immediately after leaving a building, one generally is trying to ascertain one's position in the world, outside the shop which one is leaving. In my view, the plaintiff was under no obligation to observe closely, immediately outside the pharmacy, the footpath onto which she is about to place her foot. 3. Bearing in mind the propinquity of the ramp to the entrance, or - perhaps I should say - the exit of the shop, and its being of the same colour as the tiles upon which it stood, and bearing in mind the shortness of time available to the plaintiff to glean her position in the world outside the shop, I am not persuaded, on the balance of probabilities, that the plaintiff was required to observe the structure, the ramp on the footpath, immediately outside the entrance to the shop. I am not satisfied that the defendant has discharged the onus of proof, which lays upon him, to prove that the plaintiff was guilty of contributory negligence. The plaintiff is therefore, entitled to recover a verdict undiminished by her alleged contributory negligence. Quantum 1. As I said, the plaintiff was aged 68 years at the time of the accident. She was born in Lockhart and grew up in the Riverina area of this state. She obtained the intermediate certificate and left school in 1962 at the age of 15. She commenced working in the retail industry and also as a cleaner. In December 1963, she married her first husband. She bore her first husband, four sons. In about 1970, the plaintiff and her family moved to Sydney. There, the fourth son was born in 1971. Unfortunately the plaintiff and her first husband separated in 1980 and they were later divorced. 2. In 1982, the plaintiff commenced working for the Rural Bank of New South Wales, later renamed the State Bank, at its training college at Manly. In the following years, she married her present husband, Mr Neil Christie. The plaintiff and her current husband, appear to have a bit of a love affair with the Southern Highlands. In 1985, they moved to Berrima, where they operated a general store. The plaintiff told me that it was the post office, the newsagency, and also provided take‑away food. That lasted for only two years. The plaintiff and her husband returned to Sydney, and the plaintiff recommenced working for the State Bank as a supervisor at its training college at Manly. In 1990, the plaintiff and her husband moved to Mittagong, however they returned to live in Manly, in 1993. 3. The plaintiff then obtained work with David Jones at Brookvale, serving customers. She worked there until 2001, when she retired from paid employment and moved to Colo Vale with her husband, where they established their home at 27 Church Avenue. The plaintiff admits that she left the workforce in 2001, and there is no claim for either past or future economic loss. 4. Initially the plaintiff and her husband bought a 10 acre property but sold off half of that acreage to finance the building of that home. On a little less than 5 acres, they built a very large house, and established a garden, including lawns, over two and a half acres. Photographs of the plaintiff's residence at Colo Vale, and the improvements to the grounds are exhibit E. It is clear from the evidence given by the plaintiff and her husband, that they were dedicated to building and maintaining this "dream home" at Colo Vale, in the Southern Highlands. 5. The house itself is very large. There are four bedrooms. There are three bathrooms, but they might be better described as; an en suite bathroom to the main bedroom; a full bathroom; and a powder room near the entertaining areas of the house. There was both a formal lounge and an informal lounge, a formal dining room and an informal dining area. There was also a room which the plaintiff described as a, "television casual area room." There was also a laundry and a walk‑in linen room. The formal rooms and the bedrooms were carpeted, the rest of the house was tiled, as far as the floor surfaces are concerned. The first photograph, numbered 1 in exhibit E, shows this very large house, with a double garage under the main roof. Photograph 2 shows the rear of the property, which includes outdoor entertaining areas, and photograph 3 shows the back of a structure, which might be described as a very large galvanised iron shed, which no doubt contained all the equipment necessary for maintaining the 5 acre property, with two and a half acres of garden and lawn. 6. The plaintiff and her husband appear to have been very fastidious, however, if I may be so bold to say, Mr Neil Christie's evidence made it clear that Mrs Christie was somewhat more fastidious than him. The plaintiff was not only fastidious, but extremely houseproud. Her pattern of cleaning her home could almost be described as obsessive. She cleaned the shower in the en suite bathroom every day. All four bedrooms, even though one may only was being used, were cleaned at least every week and all areas of the house were thoroughly cleaned each and every week. The washing was done on two days per week. 7. In this case I have been provided with reports from occupational therapists qualified by both the plaintiff's solicitors and the defendant's solicitors, which outline the plaintiff's various activities both within the house, maintaining it, cleaning it, and outside the house, maintaining the gardens and lawns. In the report of the defendant's occupational therapist, Ms Sandra Colyer, there commences on p 23 a list of the tasks that the plaintiff undertook before her accident and how they were being performed at the time of Ms Colyer's assessment of the plaintiff on 23 February 2018. 8. Under the heading "Gardening and lawn mowing" Ms Colyer recorded this: "Neil completed mowing, edging of lawns, and hedge trimming. He completed weeding by using spray and mulching garden beds. He would plant new trees. She would hose the garden including vegetable garden, trim the roses and rake the back lawn area. This took 2 hours per week in summer and 1 hour per week in winter. She tended to the two horses, i.e. fed them with hay, led them around, put water in troughs and spread out their manure. Care of the horses took 5.25 hours per week". The only problem with that history is that the evidence is that the plaintiff herself mowed the lawns both using a push mower and a ride‑on mower and that she did weeding and mulching of the garden beds. She also said that she planted new trees. It was clear that the trimming of the hedges and work at heights was left to Mr Christie as was any other heavier work. This couple were greatly involved in their "dream home" at Colo Vale. I have to mention those things because they are a substantive part of the plaintiff's claim for damages. 1. An attack has been launched on the plaintiff's credit. This attack was largely based on histories recorded by medical practitioners. The plaintiff saw Dr Geoffrey Miller, a specialist surgeon at the request of her solicitors on two occasions, the first being on 4 May 2016. Dr Miller recorded that the plaintiff had no previous injuries. He also recorded that the only medical comorbidities were hypothyroidism and hypertension for which the plaintiff took prescribed medication. On p 5 of Dr Miller's report of that date he provides a diagnosis of an aggravation of "previously asymptomatic degenerative changes" in certain areas of the plaintiff's body. I should point out that a history of "no prior injuries" is not a particularly good formulation of a medical history. The doctor may mean by that the plaintiff had no previous accidents or injuries such as a fall from a ladder or the like. It does not necessarily mean that there had been no prior symptoms. However the final opinion of Dr Miller in that report does indicate that as far as he was aware the plaintiff did not have symptoms of degenerative disease in parts of her body prior to the accident now in question. 2. The defendant has qualified Dr Greg Bruce, an orthopaedic surgeon. Dr Bruce examined the plaintiff on 25 October 2017. Under the heading "Past history" Dr Bruce recorded this: "She states that she has had no previous problems with her back or left upper limb. There is no significant past history of illness, injury or operation". 1. The plaintiff was cross-examined at length about prior complaints that she made to doctors at the Mittagong HealthCare Centre at Albert Street, Mittagong. The plaintiff first attended there on 22 May 2007. The plaintiff initially attended because she wanted a check of her blood pressure. She also complained of a gradual hearing loss which could be due to presbycusis. The doctor went on to record a complaint of pain in the right middle finger with a history of an injury occurring some 18 months previously. The plaintiff told the doctor she had noted a swelling in her right middle finger since that time. On examination he noted a swelling of the dorsal aspect of the right middle finger over the proximal phalanx which the plaintiff was unable to flex completely. He ordered an X-ray of the right middle finger. The plaintiff has told me that she has been diagnosed with osteoarthritis of her right middle finger. There is no suggestion, however, the plaintiff injured her right middle finger on this occasion. 2. On 31 December 2007 the plaintiff saw Dr Kumar, at this practice. The plaintiff told Dr Kumar that over the past three days she had been having twitches across the left side of her chest and pain of an intensity of 3 to 4 out of 10 which lasted for seconds. The plaintiff told the doctor that she had been "stressed out" over the previous two weeks with Christmas activities. Whether that means she was catering for her extended family at home or busy with a round of social engagements over the Christmas period is unknown to me. However, what appears to be suggested is that this could be merely due to anxiety. 3. On 26 March 2008 the plaintiff saw Dr Kumar again. The reason for going there was for a script for the medication for her hypothyroidism. However, some X‑rays had been taken of her feet, for what reason or by whom I do not know. Dr Kumar reported that the X-rays of her feet suggested osteoarthritis. The next relevant entry was on 19 March 2009. The plaintiff again saw Dr Kumar. The doctor's notes commence thus: "Again has pain in the right middle finger and left hip region [,] also elbows and back". The plaintiff denied being stiff. On examination Dr Kumar noted that the plaintiff walked with a limp and he found, as had been found back on 22 May 2007, some swelling and tenderness over the proximal phalanx of the right middle finger. On examination of the left hip he found no tenderness over either the hip or the bursa. The plaintiff had a normal range of movement and no pain. This appears to be a reference to examination of the left hip. The doctor noted no swelling over other joints. The doctor requested X‑rays of the hips to be made. 1. The plaintiff returned to see Dr Kumar on 25 March 2009, six days later. Dr Kumar reported that the "hip pains are better". However, he noted that X‑rays of the hips suggested osteoarthritis of each hip, the left being more greatly affected than the right and that there was an acetabular ganglion but on which side the notes do not tell me. The doctor's note reports this: "Not keen on anti-inflammatory". "Not keen to see ortho [orthopaedic surgeon]". At that time the doctor prescribed some Panadol Osteo tablets, but a prescription for that medication is not required. The inference to be drawn is that the plaintiff had had some pain in her left hip which went away within six days. When the plaintiff saw Dr Kumar on 25 March she made no complaint about her elbows or back. 1. The plaintiff next went to the surgery on 8 September 2009 but that was merely to obtain a prescription for drugs for hypothyroidism and for a review of her blood pressure. There was no musculoskeletal complaint. The next visit to this practice was on 23 March 2010, again the plaintiff needing a script for continuation of her medication. The plaintiff complained of pain in her right heel over a three month period. On examination Dr Kumar found no tenderness in the heel. He requested an X‑ray of the right ankle. The plaintiff returned to see Dr Kumar on 12 April with the X‑ray. It showed a hallux valgus, an in‑turning great toe, a natural phenomenon. The doctor noted some mild swelling over the medial malleolus, presumably of the left ankle. That caused him to prescribe an ultrasound of the right ankle. There does not appear to be any follow up following upon that complaint of a problem in the right foot. However, the right foot is not a matter which the plaintiff complains in these proceedings. 2. The next appointment was on 30 November 2010 when the plaintiff went in for a repeat script. The doctor's notes state categorically, "nil other complaints." The doctor examined the plaintiff and noted in particular that there was no swelling of the feet, presumably that may have been triggered by the complaint noted on 12 April 2010. 3. There were consultations on 14 February 2011, 2 December 2012, 19 December 2012, and then on 23 November 2012. The complaint on 23 November 2012 was not about any musculoskeletal problem, it was about anxiety. The plaintiff told the doctor, that she had always been a perfectionist, and that she worried about many things. She told him that she was anxious all the time. The doctor's impression, was that the plaintiff was a perfectionist who suffered from anxiety. He advised her to relax and to have some counselling. That however, appears not to have occurred. 4. There was a consultation on 14 November 2013, but that was merely about hearing loss, and the plaintiff was seeking to have a hearing aid. On 19 March 2013, the plaintiff complained about a small amount of pain in the right leg, which sometimes swelled up. The doctor could come to no diagnosis. He found no swelling of either leg, no discolouration of either leg, and found that all peripheral pulses were palpable, and he prescribed some investigations to see whether the plaintiff had varicose veins. 5. There were further consultations on 22 March, 12 April, 22 April, 30 May, 29 August, 11 October, 17 October, 25 October, 1 November, and 15 November 2013, but none of those consultations was about any relevant item. On 27 March 2014, the plaintiff attended and complained of swelling of her legs. The doctor's impression, was of simple oedema, that is, fluid retention. The plaintiff was advised to rest with her legs elevated. That does not appear to be a musculoskeletal complaint. 6. On 8 April 2014, the plaintiff saw another doctor at the Mittagong practice. The doctor noted that the plaintiff had pain in her right hand, which she thought might be due to osteoarthritis. Again, there was a finding of swelling and reduced mobility in the middle finger of the right hand. The doctor went on to say this: "Noted having other pains in feet, hips and shoulders. Vague historian." The plaintiff does not currently complain of problems with her feet. She does complain of problems in her left hip and her left shoulder, but not in her right hip and her right shoulder. The doctor's comment that the plaintiff was a, "vague historian," may indicate the doctor found it difficult for the plaintiff either to explain her symptoms, or to explain her history, or both. However, the plaintiff went back to see the same practitioner, exactly one week later on 15 April 2014. That doctor had prescribed Celebrex capsules, but the plaintiff told me that she did not take them, because she does not like taking such medication. When the plaintiff saw the doctor on 15 April 2014, she told the doctor that she was in no pain. That lead the doctor to express the view that the Celebrex was helping the plaintiff, "with her osteoarthritis," but that may only be the doctor's explanation of why there was no longer any pain. The important thing to know, is that, for whatever reason, the plaintiff was pain free one week after making the complaint of vague symptoms in her feet, hips and shoulders. 1. There were further attendances upon the practice on 12, 13 and 16 May, 12 July, 14 August, 2 September, and 5 December 2014, but no relevant complaint was noted. 2. The plaintiff went again to see doctors at the Mittagong practice on 30 January, 27 March, 21 May, 4 June, 23 July, 31 July, 19 October, and 28 October 2015, but there was no relevant complaint. 3. The next attendance upon this practice, was on 25 November 2015, ten days after the plaintiff's accident, when a history was recorded of the fall, ten days previously, with a complaint about bruising of the left shoulder and hip. As the hip is not identified, the inference to be drawn is that it was a complaint about the left hip. 4. The plaintiff clearly has osteoarthritis in a number of areas of her body. By the 15 November 2015, as I have mentioned already, she was 68 years old. One would expect a lady of that age, who had borne four children, to suffer from some degenerative disease in the joints of her body. That is unsurprising. It is also unsurprising, that from time to time, she may have been symptomatic but clearly on what is disclosed in the records of the Mittagong Health Care Centre, there was no complaint of any major problem, or any disabling problem before 15 November 2015. 5. The plaintiff when confronted with what was shown by the records of her general practice, and by the histories recorded by Dr Miller and Dr Bruce, made candid concessions; for example, when confronted with the history recorded by Dr Miller, the plaintiff gave this evidence: "Q. I want to suggest to you that he [Dr Miller] did ask you about your physical health before the accident, and you didn't mention the fact that you were suffering from osteoarthritis before the fall. A. No, well, I don't agree with that. Q. Do you agree that he asked you about your health before the fall? A. Well, I can't recall that he did. Q. If he had asked you about your health before your fall, do you say you would've told him about the osteoarthritis? A. I would have, yes. Q. Do you say that you would have told him that on occasions before the fall you had pains in your feet. Would you have told him that? A. No, because they dissipated sometime before I saw Dr Miller. Q. If he had asked you about your previous physical health before the fall, would you have told him that you had pains in your hip? A. Yes. Q. If he had asked you about your physical health before the fall, would you have told him that you had pains in your shoulders, elbows, and back? A. Yes. Q. If he had asked you about your physical health before the fall, would you have told him that on occasions you had walked with a limp? A. Occasionally when I was gardening too much. Q. Would you have told him that? A. Yes. Q. See, I'm going to suggest to you, so we're clear, that he did ask you about your physical health before the fall, and you didn't tell him about those matters I've just raised? A. No, I-- Q. Do you agree with-- A. No, I don't agree with that. No. Q. Do you remember seeing Dr Bruce on 25 October 2015? A. Yes. Q. He was a doctor the defendant had retained? A. That's right, yes. Q. Did you tell him that you had no previous problems with your back or left upper limb? A. Yes, I remember that, because it - I hadn't had any problem with it for some time. Q. Well, madam, did-- A. Quite a few years… Q. Did you tell him that you had no problems with your back or upper left limb? A. Yes. Q. That's not true, is it, Mrs Christie. That statement that "I've had no previous problems with my back or left upper limb"-- A. Because-- Q. --is not true. A. I had completely forgotten after all those years about it. I never had any treatment or medication for it. Q. It's not true, madam, is it-- A. It is. Q. --that you had forgotten about it. You-- A. I had forgotten. I'm sorry; I had." Eventually the plaintiff admitted that she had not told Dr Bruce the truth, but it is clear that her position was that she had forgotten about her earlier complaints, or that they were so minor or remote, that she did not think they were relevant. 1. Having listened to Mrs Christie over two days, I formed a very favourable impression of her, and I believe she was doing her best to tell me the truth. Her observations about her physical state prior to 15 November 2015, essentially that she was not inhibited in any way from carrying out her domestic duties or her gardening duties, are wholly corroborated by her husband, Mr Christie, whom I have no hesitation in accepting at all. True it is the plaintiff had before this accident, widespread degenerative disease affecting her joints: osteoarthritis. It is clear that the major diagnosis now is aggravation of pre-existing degenerative changes in the left hip, the left shoulder, and the low back. However the plaintiff makes a complaint of those problems persisting ever since 15 November 2015, and I accept that to be the case. I accept the plaintiff's statement of her ongoing problems since this accident, corroborated as she is in that regard by her husband. 2. However the fact that the osteoarthritis may have been intermittently, albeit for short periods of time, symptomatic prior to the accident, speaks about what might have happened in the future, but for the injury which befell the plaintiff on 15 November 2015. 3. Gentlemen, this I suppose is directly mainly at you, Mr Sleight. I'm rapidly running out of time. I running out of time to the extent that it's not fair on the staff for me to continue going at the rate I'm going at the moment. But I'm just so pressed for time. I'm sitting in crime for the next three days, and then as I said, I'm going on leave. It all depends whether you want any particularly - do I have to go into all the bits and pieces of the evidence concerning the occupational therapist? SLEIGHT: Your Honour, I don't have instructions; I can't say that we will accept on short form of reasons. I understand the position. Your Honour's made very detailed findings, with respect, till now. I understand as to the acceptance of the plaintiff. I don't want to be seen to make a concession that I'm sort of criticised elsewhere, but I understand your Honour's findings so far on the plaintiff, and therefore what flows from those findings, I suppose, is that the occupational therapists are accepted-- HIS HONOUR: I think - I might have a way of short cutting it. SLEIGHT: As your Honour pleases. 1. I return to the medical evidence. When the plaintiff first saw Dr Miller, she complained about pain in the posterior aspect of her right knee joint, and of being unable to kneel on her right knee. When the plaintiff saw Dr Miller again on 8 August 2017, the plaintiff had no tenderness, and a full range of movement in her right knee. The doctor recorded a history that the right leg, in particular her right knee, had completely resolved, and that she was symptom free in that regard. This admission by the plaintiff of a complete resolution of symptoms in her right knee speaks to her credit. She is not the sort of lady who was out to make the most of her symptoms. Given that she probably has osteoarthritis in her right knee; if she complained of continuing symptoms in her right knee, that could be accepted as being still related to the accident now in question. However the plaintiff made frank admissions to Dr Miller in that regard. I note however that when the plaintiff was interviewed by Ms Sandra Coyler on 23 February 2018, the plaintiff made a complaint about her right knee. The plaintiff described a "pulling pain" when she took a step. However there is no claim made on an ongoing basis at all about the plaintiff's right knee. The plaintiff clearly had become asymptomatic as far as her right knee was concerned when seen by Dr Miller on 8 August 2017. The complaint made to Ms Colyer on 23 February 2018 would appear to be a new complaint, and perhaps merely a complaint about underlying osteoarthritis in the right knee. However that just shows the natural progression of degenerative change. It can be rendered symptomatic by an accident or injury such as a fall, an aggravation might cease, or an aggravation might not. 2. When seen for the second time by Dr Miller on 8 August 2017, Dr Miller maintained his earlier observation, the plaintiff had aggravated previously asymptomatic degenerative changes in her left arm and her left leg and her low back. He expressed a view that the plaintiff, having undergone rehabilitation and that being unsuccessful in returning her to a pre accident state, he believed that her condition would persist into the future. In other words, he believed the aggravation was continuing. The plaintiff's solicitor then provided to Dr Miller the report of Dr Greg Bruce following his original consultation on 25 October 2017, and his supplementary opinion dated 29 March 2018. Dr Miller went on to say this: "In my reports, I did not take a history of significant pre-existing problems. I accept these may have been present, the pre-existing problems, however, did not significantly the lady's activities of daily living. In my opinion, her fall caused her current symptoms. The aggravation that has been caused by her fall has not ceased." 1. The doctor's first report does not suggest that there was any history of pre‑existing problems. The doctor's supplementary opinion appears to have changed that to mean that there was no "significant" history of pre‑existing problems. Maybe the doctor is thereby admitting that he did take a history of some problems but did not think them significant, or he may be saying that the history was of no significant ongoing problems. In any event, the doctor went on to express the view that any pre‑existing problems "did not significantly limit the lady's activities of daily living" and in that regard, he is correct on my view of the evidence. If the plaintiff had symptoms, they were transient and did not incommode her in carrying out her household activities or her gardening activities. 2. The interesting thing about the medical histories is that Dr Greg Bruce, the orthopaedic surgeon qualified, by the defendant, initially supported the plaintiff's claim. However, it is clear that his history was not correct but that does not indicate any failing on his part. Dr Bruce was asked to express his view as to whether or not the injuries complained of by the plaintiff were consistent with the alleged accident. The doctor said: "The severity of her symptoms and the loss of function on physical examination are out of proportion to the nature of the accident and the findings on radiological examination. Radiological examination showed very minor degenerative changes in the joints of her left upper limb and in her left hip and lumbar spine. The appearances are of soft tissue bruising and a strain to the musculoskeletal system on the left side of her body and to the lumbar spine. The reaction to the injury is out of proportion to the severity of the trauma because of pre‑existing degenerative changes. There also appears to have been psychological impact with her losing confidence and being fearful of returning to her usual activities. There are physical features of gluteus medius tendinopathy due to direct impact to the gluteus medius insertion to the greater trochanter. Overall, her symptoms and signs appear to me to be more severe than would be expected from the type of injury and this may be due to the psychological shock of the incident." The first thing to note is the doctor's finding about the gluteus medius tendinopathy is objective and the only explanation for it could be the fall now in question, as the doctor accepts. The other thing the doctor was expressing is that when he examined the plaintiff almost two years after the event he believed that there was still an ongoing exacerbation of the underlying degenerative conditions. 1. The doctor was then provided with the GPs' records. The doctor then appears to have formed a view that the plaintiff was being dishonest with him and he reverted, in my view, to an a priori view that the aggravation of pre‑existing degenerative changes would have lasted only two to three months because that is the length that one could attribute to "soft tissue injuries". His view was the plaintiff's symptoms, disabilities and need for assistance would have been limited to three months, a period often arbitrarily fixed by medical practitioners who believe that soft tissue injuries recover within three months and that therefore any aggravation of pre‑existing underlying degenerative condition should also subside within that three month period. 2. I do not take the inconsistent history that Dr Bruce was provided in the same fashion as Dr Bruce took it. I take it merely as being explained by the plaintiff's lack of memory of some earlier complaints or her dismissal of earlier complaints because they were trivial in that they were transient and caused no inability to do her normal household and garden work. 3. The occupational therapy assessments are made by two ladies of great experience. The plaintiff qualified Ms Suzanne Miller Ravagnani who has almost 40 years' experience as an occupational therapist. The defendant qualified Ms Sandra Colyer, who, on my reading of her curriculum vitae, has some 35 years' experience in the same field. The methodology adopted by Ms Ravagnani was criticised by learned counsel for the defendant but it is essentially the same methodology adopted by Ms Colyer. Ms Ravagnani was required for cross‑examination and I formed a favourable impression of her and the suggestions made by learned counsel for the defendant would lead to the absurdities referred to by Mr Inglis who appeared for the plaintiff in his address, that one would need to measure the extent of the carpeted area in every home and then measure the efficiency of the vacuum cleaner and then assign time et cetera for doing the vacuum cleaning of each room and then try to ascertain how often the carpets needed to be cleaned. The two ladies in question visited the plaintiff in her home and made their own assessments as the time to be taken for such activities. The attack on Ms Ravagnani's methodology is in my view without any merit. 4. The one area where it appears to me that compromise is called for is the future. The plaintiff has been rendered gratuitous services by her husband who has taken over many of her household duties and most of her gardening and outdoor duties. Mr Christie has given evidence and conceded that he had been doing the work that his wife no longer did and that he did it at her request and at her direction, albeit that he thought that sometimes the extent, for example, of the requirement to clean bathrooms and floors was over great. In other words, Mr Christie may not be as fastidious a housekeeper as his wife. However, problems have arisen for Mr Christie. The plaintiff was examined by Dr Robert Gertler, a psychiatrist at the request of her solicitors on 3 July 2017. Dr Gertler's history includes this matter: "Several days ago Ms Christie's husband was diagnosed with incurable bone marrow cancer and this has understandably caused her to become significantly distressed, and also concerned as to her ability to care for her husband in future, given her own physical limitations". Dr Bruce, who examined the plaintiff on 25 October 2013, said this: "At present she is carrying out none of the household duties. This is presently being done by her husband. However, he has a serious illness and it seems unlikely that he will be able to continue household duties for the foreseeable future. Domestic care services will most likely need to be obtained when her husband becomes too unwell to carry out household duties. The services could be either gratuitous, or more likely, commercial and is likely to be of the order of four hours per week". The doctor then went on to observe that the plaintiff and her husband "already obtained paid assistance for the gardening" but that was paid assistance for somebody doing the work that the plaintiff's husband used to do and that he can longer do because of his own health conditions. Besides the diagnosis of bone marrow cancer, Mr Christie himself suffers from osteoarthritis affecting a number of areas of his body which was referred to by learned counsel for the plaintiff as polyarthritis. That may well be the condition but I do not see it in physical evidence before me. 1. However, it is clear from Mr Christie's evidence that his ability to continue to do the work that his wife requires him to do, or that his wife's inability to do requires him to do, is becoming extremely burdensome for him. Both the plaintiff and her husband have told me that they would grasp at paid care being provided to them, thus alleviating the demand on the plaintiff's husband and the plaintiff herself who is understandably concerned about the demands being placed on her husband. 2. The defendant referred me to the decision of the Court of Appeal in Hornsby Shire Council v Viscardi [2015] NSWCA 417 in which the Court, Beazley P, Gleeson and Simpson JJA, discussed the issue of future care being provided commercially whereas earlier it had been provided gratuitously. The discussion can be found between [72] and [79] of the judgement and I do not need to cite it in these reasons. Suffice it to say that the combined effect of the plaintiff's circumstances and her husband's circumstances and the medical evidence persuades me that the plaintiff cannot do all the work that she used to do around her house or the work that she used to do in her garden herself that her husband has been providing it to her to date but it must eventually be provided commercially. Having said that it is clear that, with the plaintiff's widespread osteoarthritis in her body and the plaintiff's husband's widespread osteoarthritis in his body, eventually neither of them would be able to provide all the many tasks required to maintain their home and maintain their gardens and lawns. Mr Inglis for the plaintiff had suggested that I make an allowance for the plaintiff's future life expectancy but that to discount that by 30% because of increased vicissitudes. 3. The view I have come to is that the future paid care should only be allowed to the plaintiff for a further nine years, that is until she turns 80 years, because, in my view, after that time the plaintiff's osteoarthritis would have caught up with her in any event and her husband's osteoarthritis would probably also have caught up with him and they would be unable to do what they did prior to 15 November 2015 together or what he, Mr Christie currently does on behalf of his wife to the current time without such assistance. 4. Can I just abbreviate it now, Mr Sleight? SLEIGHT: I beg your pardon, your Honour? HIS HONOUR: Can I abbreviate the reasons now? SLEIGHT: I don't have those instructions, your Honour. The findings made so far it's quite likely to go somewhere else so in my view I can't relieve your Honour of making, I can't make any comment your Honour. Your Honour will have to deliver the reasons as your Honour sees fit. INGLIS: What time is your Honour commencing in crime tomorrow? HIS HONOUR: 10. What particular findings do you seek, Mr Sleight? I expect you to assist the Court. SLEIGHT: Your Honour has made a finding to 80 when Dr Bruce's unchallenged medical evidence. I don't wish to cavil with your Honour's findings but Dr Bruce's evidence was that she would strongly, would cease at 70. HIS HONOUR: She's reached 70. SLEIGHT: Yes, your Honour. HIS HONOUR: Yes, anything else? SLEIGHT: Well, my learned friend says it's been rejected but your Honour I don't' require any more findings and your Honour wishes to give‑‑ HIS HONOUR: All right, thank you. Thank you, that is all right. 1. I trust that I have now made sufficient findings to expedite the delivery of these reasons. I asked to expedite the delivery of these reasons because for the next three days I am sitting in the criminal jurisdiction of this Court. I then go on five weeks' leave in which I have a long planned overseas trip arranged. When I return to work in Sydney I am fully occupied with previous commitments and circuit work and criminal sittings until October. I am afraid that, like most judges of this Court, I am overworked at the current time and the ability to give extensive reasons is somewhat diminished. 2. I turn then to the plaintiff's claim for non‑economic loss. The plaintiff claims 32% of a most extreme case. The defendant submits that I would only allow 15% of a most extreme case. The plaintiff was 68 years old at the time of the accident now in question. She turns 71 on the 27th of this month. Her life expectancy at the age of 71 is 18.44 years, that is, she would normally expect to live to almost 90 years of age. That is a matter I have taken into account in determining that I should only allow future paid care to the age of 80. Once upon a time the view was expressed that one should award more to a younger person than to an older person because a younger person will experience pain and suffering, anxiety and distress, for a longer period of time than an older person. For many years I have expressed the view that younger people are often much more resilient than older people and can better cope with pain and suffering and can modify their lives to allow for an ongoing disability such that they minimise the pain and suffering which they experience. It is otherwise for those who are older. 3. Furthermore, our society expects that those who have retired from the workforce should be able to live their lives quietly, peacefully and as far as possible pain free, that they should be able to undertake the tasks which they really enjoy and here the tasks that Ms Christie really enjoyed were the maintenance of her dream home, no doubt entertaining in it and maintaining the extensive lawns and gardens that had been built around that dream home by the plaintiff and her husband. Doing the best I can I accept this case approaches towards 30% of a most extreme case. It is certainly more than one quarter of a most extreme case but does not reach the one third of a most extreme case. Doing the best I can I allow a 28% most extreme case which is a lump sum of $86,000. 4. For past out of pocket expenses the plaintiff claims $1,547.65. They are a refund to Medicare of $991.65 and $556 for physiotherapy. I allow those sums. The defendant asks me to limit the plaintiff's damages to those incurred in the three months immediately following the accident. In the three months immediately following the accident the plaintiff saw her general practitioner on five occasions, had five sets of plain X‑rays, albeit that they were all performed on the same day, and had CT scans on 14 January 2016 and 15 January 2015. On my quick calculation that would be almost $1,000 which is roughly what the payback is to Medicare. I therefore allow the sum claimed by the plaintiff, $1,547.65. 5. The plaintiff claims future out of pocket expenses of $4,207.37. That can be found on the plaintiff's schedule of damages, MFI 7. However, it should be pointed out that those amounts are claimed for the plaintiff's lifetime. In my view the damages should be limited to the period until the plaintiff turns 80 because by that time, in my view, the plaintiff's osteoarthritis could have caught up with her in any event. I therefore allow for the future out of pocket expenses $2,100. 6. The plaintiff's claim for past domestic assistance has been modified from the plaintiff's Schedule of Damages, MFI 7. The plaintiff no longer presses the claim made at 4(b) of that Schedule. I allow the sums claimed. They amount in total to $34,776.80. In each of the two periods referred to, the plaintiff claims $29.98 per week for ten hours care provided by the plaintiff's husband. In the first four week period, Ms Ravagnani estimated that the plaintiff needed 14 hours assistance per week. In the same period at p 100 of the court book, Ms Colyer estimated the plaintiff needed 4.25 hours per week. Mr Christie himself maintained that he assisted the plaintiff whether least 15 hours per week assistance in the home. I therefore allow the ten hours per week. During the balance of the period, the plaintiff's husband said he provided at least 15 hours per week inside the house. Ms Ravagnani estimated on p 52 that the assistance was for seven hours per week, but on p 51 of her report, estimated that it was in fact 8.9 hours per week. In the circumstances, and bearing in the mind the evidence of Mr Christie, I accept the ten hours per week claimed. As I said, the total of those sums is $34,776.80. 7. For future paid care, Ms Ravagnani estimated 8.9 hours per week. The plaintiff asked for six hours per week. In those circumstances, I am happy to allow for six hours per week at $54.45 per hour, but only to the age of 80; that is for nine years for the future. The multiplier is 380.1, and if my mathematics be correct, that amounts to $124,178.67. 8. The total of the five sums is, if my mathematics be correct, $248,603.12. I trust I shall be forgiven for rounding that down to $248,603. 9. There is no deduction for any contributory negligence because there was none. 10. Now, any further reasons for judgment required? SLEIGHT: Your Honour, could I just clarify; the past domestic assistance is for ten hours a week-- HIS HONOUR: Ten hours per week; it's as per the plaintiff's schedule. SLEIGHT: Yes, I've got that. HIS HONOUR: But leave out (b); leave out the $209.86. SLEIGHT: (a) and (c). Thank you, your Honour. HIS HONOUR: It's (a) and (c), just add them together. Now, any further reasons required? SLEIGHT: No, your Honour. HIS HONOUR: Any further reasons required, Mr Inglis? INGLIS: No, your Honour. HIS HONOUR: Thank you. 1. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $248,603. [SUBMISSIONS RE COSTS] 1. On 3 May 2018, the plaintiff made an offer of compromise for $185,000. There is no statement whatever concerning costs in the offer. The offer is made in accordance with UCPR 20.26. It was to be open until 5pm on Thursday 10 May 2018, that is for one week. It is to be noted that this matter was listed for hearing in the sittings of this Court at Wagga Wagga commencing on 14 May 2018. In the circumstances, the offer appears to me to have been open for an appropriate period of time, with a rapidly approaching circuit, commencing on a Monday in a country venue, one would expect both barristers and solicitors to know the subject matter of the case, or to use the barrister's terms, "on top of the brief", by that time, and be in a position to be able to advise the client concerning the offer of compromise at such a time. There in my view no reason that why I should not apply the normal rule. For those reasons, I order the defendant to pay the plaintiff's costs on the ordinarily basis until Thursday 10 May 2018, and thereafter on an indemnity basis. ********** 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: 30 August 2018