District Court New South Wales Medium Neutral Citation: Kalache v Secureclean Pty Ltd (No 2) [2019] NSWDC 717 Hearing dates: 14-16 August, 10 September, 21-22 October 2019 Date of orders: 23 October 2019 Decision date: 23 October 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: Verdict and judgment for the second defendant against the plaintiff Catchwords: TORTS. NEGLIGENCE. PERSONAL INJURY DAMAGES CLAIM. Plaintiff slipped and fell in a shopping mall. Action against cleaning contractors of common areas of the mall. After review of CCTV footage of incident and of prior traffic in area of the mall where fall occurred, of evidence of security guard and of cleaner, and of histories given to doctors etc, found not satisfied that there was any liquid on floor of mall as claimed by plaintiff. Category: Principal judgment Parties: Klaudette Kalache (Plaintiff) Secureclean Pty Ltd (Second Defendant) Representation: Counsel: R. Lynch (Plaintiff) O. Dinkha (Second Defendant) Solicitors: Gerard Malouf and Partner (Plaintiff) HBA Legal (Second Defendant) File Number(s): 2017/00220928 Publication restriction: Nil. Judgement 1. HIS HONOUR: The plaintiff Mrs Klaudette Kalache brings an action in the tort of negligence for damages for personal injury which she alleges she sustained on 14 June 2016. That day was a Tuesday. It is common ground that on that day the plaintiff went to the shopping mall known as Stockland at Wetherill Park to do some shopping. In a common area of that shopping mall she fell and fractured bones in her right ankle. There is no dispute about that. The reason for the fall is hotly disputed. The liability of the defendant is hotly disputed. The sequelae of the fall are also hotly disputed. The defendant 1. The defendant was not the architect, builder, owner or occupier of the shopping mall. These proceedings were initially commenced against Stockland Wetherill Park who was alleged "had the care, management and/or control of a shopping centre known as Stocklands Shopping Centre trading as Stocklands Shopping Centre, Wetherill Park". An amended statement of claim filed on 3 September 2018 joined the second defendant, Secureclean Pty Ltd. On 22 November 2018 judgment was entered in favour of the first defendant, by consent. The proceedings have been maintained against the second defendant. According to the statement of claim at all material times the second defendant was the cleaning contractor responsible for maintaining the common areas of the premises in question. The defendant, by its defence, admits that it was the relevant cleaning company at the Stockland shopping mall at Wetherill Park at the relevant time. Plaintiff goes shopping 1. Tuesday 14 June 2016 was probably the Tuesday after the Queen's Birthday long weekend. The plaintiff went there with her husband. He dropped the plaintiff off at an entrance to the mall and then drove off into the car park. The plaintiff then told me that she went to a shop known as "Fresh Soul" where she purchased some clothing, a vest and a jacket. Those purchases were placed in a white plastic shopping bag. She was carrying in her other hand a black bag. The plaintiff was wearing black slacks and a lighter coloured upper garment. She was wearing a pair of Diana Ferrari boots. Those boots were produced to the Court and have been marked for identification. They are knee length black leather boots. The plaintiff told me that she had worn them perhaps on ten earlier occasions. Relevant area of the mall 1. After purchasing the clothing, to which I have referred, the plaintiff was walking in a common area of the mall when she fell. There is in evidence a "map" of the premises, but one published in June 2018. It appears that the physical layout of the mall has not been changed between June 2016 and June 2018, although many of the smaller tenancies appear to have changed. At the southern end of the mall, that is at the Restwell Road end of the land upon which the mall is erected, are two major tenancies. To the east, Target, and to the west, Woolworths. The relevant area of the mall is a hallway in front of Target. The hallway runs from east to west, but the closed-circuit television footage, of which there is much, generally looks from west to east. I shall maintain that orientation. In maintaining that orientation, Target is on the right side, and the northern side of the hallway in front of Target is on the left side. 2. By reference to the map, exhibit 8, there is a small tenancy numbered 96 where the main hallway running from west to east turns to head north. Beneath that are two other tenancies numbered 95, and to its west, 94. Between those three tenancies, that is numbers 96 to 94 and Target, there are some outlets which had been described as "pop up" stores. They appear to be permanent, rather than temporary. In the foreground looking east, there is a "pop up" tenancy, which appears to sell food and drinks. I shall refer to that as a café. In the middle distance looking east, there is another "pop up" outlet which sells clothing. I shall merely refer to that as the clothing store. In the far distance, that is to the east of the other two "pop up" tenancies, is a third "pop up" tenancy, which is the subject of some conjecture. It may be a hairdresser, or it may be an area where eyebrows are plucked and trimmed. I shall merely refer to it as the beauty salon. The stores that I have identified as numbers 96 to 94 were described thus by the plaintiff: "I walked..past a shop on the corner, and, cosmetic, and the hairdresser between hairdresser and cosmetic." I do know that the cosmetic shop to which the plaintiff was referring was an outlet known as Cosmo Cosmetics. That appears to be shop 94, although it might be shop 95. In any event, it is not the shop on the corner, number 96. 1. The surface of the hallway is essentially white terrazzo tiles. In front of the tenancies on the left-hand side, and also in front of minor tenancies on the right-hand side of the hall is a broken line of black terrazzo tiles, which if this were a roadway and the colours were reversed, would be referred to as the "fog line", and I shall so describe this broken line of black tiles. 2. The relevant area, that is where the plaintiff fell, is on the left-hand side of the clothing "pop up" shop where there is an expansion joint running north-south between the wall of what must be the Cosmo Cosmetic shop and the clothing "pop up" shop. The expansion joint runs across one of the black tiles of the "fog line". That place can conveniently be found in a still photograph taken from the CCTV footage contained in the report of Dr John Culvenor of 5 June 2019, which is exhibit 7. The still photograph is on p 43 of Mr Culvenor's report and is the photograph at the bottom of p 43, which has a caption "12.11 Plaintiff (the frame is in a separate table)." The plaintiff's claim 1. According to the statement of claim as amended, the plaintiff's injury occurred thus: "(6) On 14 June 2016, the plaintiff with her husband, were lawfully upon the premises for the purposes of shopping. As she walked within a common area of the premises she slipped on a liquid substance, causing her to fall. (7) The plaintiff fell heavily suffering multiple fractures to her right lower extremity. (8) Other injuries the plaintiff sustained included her right shoulder, right arm, right wrist, right hand, lower back, Coccyx, right leg and right ankle. She also suffers from psychological sequelae as a consequence of the fall…" The plaintiff's case is that she slipped when her foot made contact with a liquid substance on the floor of the mall at the relevant place, causing her to slip, causing her to fall. The presence of this liquid contaminant on the surface of the floor is hotly disputed. 1. The plaintiff herself does not say that there was a liquid contaminant on the floor, merely that there was something on the floor which caused her to slip. That of course is mere speculation on her part. In chief the plaintiff said this: "I was walking slowly carrying my bag and handbag. I felt something slippery under my, in one second, my left foot gone, my other foot turned, twist and then I heard a crack. I felt, I tried to hold the floor not go on my…head, with my hand, this hand and this hand." That evidence can be found at p 103, line 37 of the transcript. The plaintiff went on to say that her left foot went out in front of her, that her right foot twisted and that that is when she heard "the crack." She fell on to her left buttock and told me that her right hand hit the ground as well. She told me that her right hand "was all bruised" because she had tried to take the weight on that side of her body. She also said that she felt pain in her right knee as well as in her ankle. That evidence can be found on p 104 of the transcript. At p 105 she said that her left foot had slipped forward and that she was in much pain and was "scared", thinking of what might have happened to her. She also said that she had pain in her back and buttocks. She was then attended by other customers and then by security guards and then by cleaners. 1. In cross-examination the plaintiff said that she did not notice anything that may have been on the ground prior to her fall. When asked what happened with her right foot she said "I felt something, like, slippery under my foot, my left foot, but my right foot went and turned under me and twist." The next question has been mis-transcribed, the transcript shows the question as being "The accident happened very supply, didn't it?", the question actually asked was "The accident occurred very suddenly didn't it?", to which the plaintiff gave an affirmative answer (p136). At p 139, again in cross-examination, the plaintiff again reiterated that she felt something "slippery under my foot." She went on to say that she did not know what it was but it was something that made her slip. She reiterated that the event happened very quickly. When asked whether after the event, she noticed anything on the floor that may have caused her to slip, she said that if anything caused her to slip, she was sitting on it after she had fallen. She reiterated that if there was something slippery, it would have been "under me", that is she would have been sitting on it when she was sitting on the floor after her fall. 2. The question was again subject of further cross-examination, recorded on p 176 of the transcript, where this evidence was given: "Q. After you fell, you didn't notice anything on the ground? A. …I didn't notice as I told you, because I was sitting, I was sitting on the ground concentrate on my pain, I was sweating, you know sweating, how much I sweat, even if I, something on my clothes, like something on the floor, I wouldn't notice because I was sweating from the pain. Q. When you say sweating, you mean you were perspiring? A. …Yeah because I with the pain I was sweating, that's my reaction, I don't know if people normally do that, I don't know. Q. You weren't noticing, so you didn't notice anything on the floor? A. ..No." Later on that page, the plaintiff said that she could not remember saying anything to a security guard who had attended upon her after the fall. CCTV 1. The CCTV footage shows the plaintiff's fall occurring at 12:11:48. That is at 48 seconds after 12.11pm. As I have mentioned earlier, the plaintiff was first attended to by other customers at the shopping centre. The CCTV footage shows, if my notes be accurate, that at 12:16:59, a female security officer appears from the western end of the hallway walking towards the plaintiff who was still sitting on the floor, at a place which she fell. Behind the female guard was a male security guard who, with the female security guard, came up to the plaintiff and commenced talking to her. The female security guard spoke to the plaintiff only briefly, if she were talking, and then she left, leaving the male security guard talking to the plaintiff. Cleaners appear to have arrived with a cleaning trolley, according to my viewing of the CCTV footage, at 12:17:14 and 12:17:19. They appear to inspect the area where the plaintiff fell but performed no cleaning tasks at all. 2. At 12:21:00, the female security guard returned to the plaintiff, who was still sitting on the ground. She was pushing an empty wheelchair, which she had brought, in order to assist the plaintiff. According to my note of the CCTV footage, the plaintiff's husband appears at 12:21:27, and bends over to speak to his wife, making an angle of 90 degrees between his legs and the trunk of his body. The plaintiff told me, consistently with the film, that the boot on her left leg was removed by the female security guard, and the plaintiff was then assisted into the wheelchair. To do that, the plaintiff was turned and ended up sitting in the wheelchair, essentially looking westward, whereas she had been walking eastward. In other words, she had been assisted up from the seated position and turned around and assisted to sit down in the wheelchair, such that the site of the accident would have been in front of her. She was then pushed away from the place where she had fallen, at 12:24:02. 3. There are a large number of video footages. Those looking from west to east, are generally referred to as "Target East," and those looking from east to west are generally referred to as "Happy Cup." The original CCTV footage, according to my notes, contained nine different tracks which were marked as exhibit A. On the final day of evidence, last Monday, a further film was tendered, and marked as exhibit 12. That contained three additional CCTV footages, one Target East footage and two Happy Cup sequences. 4. The film footages are important for what they do not show. The written submissions made by Mr Lynch on behalf of the plaintiff contain at [31] this matter: "Following the approach taken in Strong v Woolworths, it is submitted that probabilistic reasoning favours a conclusion that the liquid was deposited in the 21 minute period after the cleaners inspected the incident area at 11:35:48, rather than the relatively shorter 15 minute period between 11:56:48 and the time of the incident at 12:11:48, because there was a greater propensity of spillages occurring in the 21 minute period than in the 15 minute period. Additionally, the CCTV schedule, which appears as annexure A to these submissions records at total of 216 pedestrians passing over the incident area in the 21 minute period, and 168 in the 15 minute period. On those numbers, the Court would comfortably find that it was more probable than not that the spillage occurred in the period when 216 pedestrians passed over the incident, rather than the period of only 168 pedestrians." The sum of 216 and 168 is 384. What Mr Lynch was telling me is that in the interval between 11:35:48 and 12:11:48, a period of 36 minutes, 384 persons walked over the area where the plaintiff fell. When one looks at the film, not one pedestrian reacts to the possible presence of any contaminant on the floor of the mall. No one appears to slip, trip, stagger or the like. No one changes his or her path, as if to avoid something being on the floor, and many of the persons walk over the exact spot where the plaintiff fell without any problem, difficulty, or the like, at all. There are other ways of looking at the matter as well. There is annexed to Mr Culvenor's report, exhibit 7, an appendix of "Video Stills", that is still photographs taken from the CCTV footage. Table 1 is headed "Observations, mainly pedestrians walking on the place in question and other observations including the incident." There follow prior to the plaintiff's fall 55 images. The first shows a step near the site of the plaintiff's fall which I shall describe hereafter merely as the situs at 11.10. There is another step near at 11.13. At 11.30 there is a pedestrian carrying a cup with a straw in it but there does not appear to be any noticeable spill. At 11.14 there was a step near the situs. At 11.15 he pointed out the presence of a cleaner west of the situs. At 11.16 there was a step almost on the situs by a child. At 11.16 there was another step "near" the situs that appears to me to be on the situs. At 11.18 there was another step near the situs and other steps near the situs are recorded at 11.19, 11.21, 11.22, a second at 11.22, 11.23, 11.24, and, a second at 11.24. At 11.27 there was again a step near the situs and the pedestrian appeared to be holding something but there was no indication that there was any spillage. At 11.27 there was another step near the situs as well as steps near the situs at 11.30 and 11.32. 1. At 11.34 there was a step near the situs and besides that pedestrian there was a child about five years old would have been within 50 centimetres of the situs. There were steps near the situs, two at 11.34, and in the second of those the pedestrian is accompanied by another pedestrian who is pushing a trolley. At 11.35 there was the passage of a cleaner over the situs pushing the cleaning trolley. At 11.39 there was a step near the situs as there was at 11.40, 11.41, 11.42, a second at 11.42, 11.44, three at 11.45, one near the situs at 11.50 and at 11.55, two at 11.56, one at 11.57, a second at 11.57, one at 12.02, one at 12.03, another at 12.04 and at 12.05. 2. At 12.07 Mr Culvenor recorded that a person possibly holding a cup walked nearby but not over the situs, but that there was no sign of the spillage. There were steps near the situs at 12.07, 12.08, three at 12.09, one at 12.10, two at 12.11 and the next step at the situs was the plaintiff's fall. None of the other pedestrians identified by Mr Culvenor came to any grief when stepping on or near the situs, nor is there any reaction made by any of those pedestrians to indicate that there may have been something on the floor. 3. Last night I again reviewed the CCTV footage and, from Target East films 2 and 3, the total number on my reckoning of pedestrians who walked close to the situs was 88 including six elderly persons, one of whom was carrying a walking stick and five young children by which I mean toddlers, not school aged children. None of those came to any grief or showed any adverse reaction to walking at or near the situs. All of that evidence is against the proposition that there was any contaminant on the floor at the time. 4. Mr Lynch, who said and did all that he could to support the plaintiff's claim, and I mean by that that he did his job for the plaintiff admirably, pointed out that at 11:50:19 a man wearing a high visibility yellow shirt was pushing a trolley over the situs and that trolley appeared to contain bags of garbage. He encountered a female security guard at the western end of the clothing shop and they talked to each other for a little amount of time. Mr Lynch submitted that that was a possible cause of contamination of the situs. In [23] of his written submissions Mr Lynch said this: "The CCTV footage [exhibit A] shows a steady stream of customers traversing the incident area in the 36 minute period prior to the incident, some carrying drinks, some pushing prams and others pushing trolleys. Significantly, at 11:50:22, some 21 minutes prior to the incident, the CCTV footage records a man wearing hi-vis clothing pushing a trolley containing a plastic garbage receptacle directly over the incident area [exhibit A, Target 1, East (2)-17]. The CCTV footage of the incident at 12:11:48…clearly shows the mechanism of incident whereby the plaintiff is walking at a normal speed when her left foot spontaneously loses traction and slips forwards causing her right leg to fold under her body before falling to the ground. The mechanism of incident is consistent with an inadequate level of slip resistance being available in wet/contaminated conditions on the terrazzo floor surface of the premises. Even without expert opinion, the mechanism of incident is so obvious on viewing the CCTV footage such that it is a matter of fact of which the Court could take judicial notice." The contamination of the incident site by something falling from the garbage receptacle contained on the trolley pushed by the man wearing the high visibility shirt is merely a matter of conjecture. 1. In any event, pedestrians continued to pass over the site for another 21 minutes, and not one of them comes to grief, that is, sustains any fall or staggers or the like, or seeks in any way to avoid the site, indicating that none of those pedestrians observed any problem with that area of the mall floor. The Court cannot take judicial notice of matters of fact of this nature. The fall is quite consistent with a lady losing her footing. Many people do so without there being a contaminant on a floor. 2. A defect in the presentation of the plaintiff's case is the fact that her boots were available to her and could have been inspected, and I could have been told of whether they provided adequate slip resistance or not, but that has not been done. Dr Culvenor in his report discusses the significance of high heeled shoes. He commences that discussion with this observation: "Ms Kalache may be wearing a boot with a moderate heel. It is not clear if it is a particularly high heel, but following are some notes on how high heels affect body stability and gait patterns." I have seen the boots. As I said, they are MFI 4. I would describe them as having a moderate heel. I do not know whether they could be classified as a high heels or not. That is something I would have thought the experts could have commented upon, and could have commented upon the adequacy of the soles of the shoe to prevent any slipping. However, that was not attended to. What is quoted by Dr Culvenor, however, shows that injuries amongst women attributed to wearing high heels are increasing, according to studies made of US hospital data, that is, there is some epidemiological evidence that the wearing of high heels may increase the risk of injury. Whether that is here significant or not, I do not know. 1. The CCTV footage does not, in my view, suggest, let alone prove or substantiate, the existence of any contaminant upon the floor at the site where the plaintiff fell on 14 June 2016. Rather, in my view, the CCTV footage speaks in exactly the opposite direction. I can turn to other matters, including, for example, contemporaneous histories and contemporaneous findings. Evidence of the employees at the mall 1. The first employees on the scene were the security guards. The male security guard was Mr Muhammad Mehdi. The female security guard was a lady known as Ashli. Mr Mehdi made a report of the incident, the original which is exhibit 5.1, a more recent copy of it is exhibit 5. I refer only to exhibit 5.1. The narrative provided by Mr Mehdi is this: "At around 12.15 when [Ashli] and I were dealing with a shoplifting incident in Lonsdale, I received a call from [supervisor Eli Kanaan] asking me to provide medical assistance outside Cosmo Cosmetics in Target hall area. Upon arrival I saw a female customer named Klaudette Kalache sitting on the floor. I asked what happened, and she replied 'I slipped and twisted my ankle on the metal joint.' Security Officer Ashli ran to get the wheelchair and first aid kit. We asked if she needed an ambulance, but she refused and rather asked us to take her to medical centre. I took her to medical centre inside the Chemist Works on a wheelchair and applied ice pack. After she got a referral for an X-ray and I then took her to the imaging centre in Polding Street. Meanwhile her daughter Georgia arrived and took her for an X-ray whilst I waited there. Her daughter said the X-ray reveals a fracture in her right ankle. Upon reviewing the footage, I can see she was walking with shopping bags in her hands. When she stepped on the metal concrete divider she slipped and twisted her ankle resulting in a fall. There was no substance involved and it's apparent that her heel got stuck in the concrete divider resulting from twisting her ankle. Around 14.30 I returned the wheelchair back to the customercare desk." Further parts of the report indicated that the lighting level was adequate, the surface type were tiles, the surface angle was level, this occurred in a covered area, and that the ground condition was "dry". 1. Mr Mehdi gave evidence. Mr Mehdi was not an employee of the defendant. At the time that he gave evidence, he was a security guard employed by New South Wales Health at the Gosford Hospital. He was working at Stockland Wetherill Park in June 2006, and he was working for a company which had contracted to do the security work for the occupier of the Stockland mall. He commenced working there in October 2015 and stopped working there in July 2016. His evidence was criticised by Mr Lynch, for the plaintiff, because he maintained steadfastly what he recorded in exhibit 5.1. However one would expect him to do that, especially when one considers that the document was almost contemporaneous. 2. I have no hesitation whatever in accepting Mr Mehdi's evidence. In essence, he was independent. He was not an employee of the owner or occupier. He had been the employee of a contractor, but that contractor was not involved in this litigation and he had left that contractor's employment and is now working for the State of New South Wales. There is no reason for him to have any partiality at all. According to him, the plaintiff told him that she slipped when she put her foot on the metal joint which is a clear reference to the expansion joint. However the fact is that the slipping commenced prior to the plaintiff's reaching the expansion joint. 3. The plaintiff gave a history to one of her general practitioners to the same affect. On Friday 24 June 2016, that is ten days after the event, the plaintiff attended upon Dr S Aran at the Cecil Hills Medical Centre. The plaintiff lives in Cecil Hills. This is her local medical centre and the plaintiff has been attending at that medical centre since October 2013. On 24 June 2016 the plaintiff went to see Dr Aran to have a new plaster applied to her right leg below the knee. The history recorded by Dr Aran is this: "The patient slipped on the metal strips in the Stockland Mall-Wetherill Park on 14/06/2016." 1. The plaintiff must have given the same history to her solicitor, because until the first day of the hearing before me on 14 August 2016, par 6 of the statement of claim was this: "On 14 June 2016, the plaintiff with her husband, were lawfully upon the premises for the purpose of shopping. As she walked within the common area of the premises she walked upon an expansion plate, she slipped on a liquid substance, causing her to fall." The plaintiff now maintains that she never told anybody she slipped on the expansion plate or the metal strips. Unfortunately I cannot accept that as being reliable evidence. 1. I must point out that evidence was also given by Mr Bikash Ghimire, who was at the relevant time, a cleaner working at Stockland mall at Wetherill Park. He was an employee of a subcontractor to the defendant. He was working at the mall on a full-time basis six days a week on various shifts. He identified himself from the CCTV footage as one of the cleaners shown in the CCTV footage. He also identified another cleaner as Mr Sidat Sharma, who was his site manager at the time of the plaintiff's fall. Mr Sharma was known by the nickname "Sid." According to Mr Ghimire, Mr Sharma returned to his native India, to his native State of the Punjab in 2017 where he now lives permanently. 2. Mr Ghimire was able to identify himself by his watch on the CCTV footage. He was shown film of the movements of cleaners, both before and after the plaintiff's fall. He remembered the event, he remembered a lady fell down and "broke her ankle." He recalled attending the scene, following upon the security guards. This evidence was given: "Q. Did you remain at the scene? A. Yeah, for a while, just to make sure is there any hazard to cause her fall or no and then I left from there." 1. Further video film was then played to him and he identified himself as the person pushing the cleaning trolley away from where it had been pushed, close to the plaintiff after her fall. He agreed that he was in the area of the fall for a minute or less, a very short time. This evidence was given: "Q. When you went to where the lady was on the ground wasn't she? A. Yes. Q. Did you speak with anybody? A. I just - a quick check of the floor, I didn't see anything. I confirmed with the security, I asked question with Mehdi and another lady." He went on to say that he spoke with the security guard and asked the security guard to confirm whether there had been a spillage and was told, obviously by Mr Mehdi, that there had been no spillage. A little later the witness said this: "I spoke with the Mehdi to confirm more about that, cause of fall and he said to me, it's nothing really with the cleaning and I walked from there." 1. He then said that he had a conversation with Sid in which they discussed whether they needed to make a report about the plaintiff's fall, and the witness was told by Sid that there was no need to make any report because there was nothing done or not done by the cleaners which caused the fall, in other words, that the contract cleaners had no responsibility for the plaintiff's fall. The inference from the film is that both Mr Ghimire and Sid had a quick inspection of the scene of the plaintiff's fall and did not perceive anything which would constitute a contaminant on the floor, did not discern any spillage or the like, or anything that needed to be cleaned up. 2. One thing that it does do, however, is point out this. If Mr Mehdi, the security guard, perceived that there had been a spillage, he would have drawn it to the attention of the contract cleaners because the cleaning up of spillages was their responsibility. However, he did not. That, in essence confirms or corroborates his statement that he perceived that there was no spillage, and the cursory examination of the incident site by Mr Sharma and Mr Ghimire clearly corroborates the assertion that there was no spillage they could see. That, of course, does not negate a possibility that there was some spillage, and that it was wholly covered by the plaintiff's person as she was sitting on the floor. However, it does not suggest that there was any spillage. Husband not called 1. I return to other potential sources of evidence, which might suggest that there was a spillage. One person who was at the scene of the fall, prior to the plaintiff's being taken from the situs in the wheelchair, was her husband. He has not been called, nor has his absence been explained. The inference to be drawn is that he must not have perceived any contaminant on the floor. If he had perceived a contaminant or anything that might support the presence of a contaminant, one would expect him to have been called by the plaintiff, but he was not. Contemporaneous histories. 1. The plaintiff was taken to a general practice in the Stockland mall and that practice is known as the Wetherill Park Medical Centre and is contained in shop 101 of the mall. The plaintiff saw, at the Wetherill Park Medical Centre, Dr Xin (Daphne) Ye. The history recorded by Dr Ye is this: "Plaintiff had a fall in shopping centre today about 12pm in front of Coles, came with security guards. Can't weight bear, transferred to clinic with wheelchair. Complains of right foot pain. On examination, no obvious swelling. Pain when press right achilles tendon area. Range of motion of ankle slightly restricted in plantar flexion, inversion, eversion." 1. The doctor records the purpose of the visit as a "right ankle injury." She referred the plaintiff to have an X-ray of her right foot. Firstly, there is no record made by the doctor of the plaintiff's saying that she slipped on a contaminant on the floor, or any reason for her fall. Secondly, there is no complaint about any injury to any part of the plaintiff's body other than her right ankle. Thirdly, there is no complaint of extreme pain, which is what the plaintiff asks me to accept she felt at the time of the fall, which impeded her memory of complaints that she may have made, inter alia, to Mr Mehdi. There is no finding of the doctor of any evidence as to what may have caused the fall. 2. The plaintiff went to the Wetherill Park Imaging Centre, which is in suite 1 of the Stockland Medical Centre in Polding Street, Wetherill Park. It is out the front of the mall that is to the north of Big W tenancy. The clinical indication made by Dr Nirangan Ganeshan is this: "Fall today. Can't weight bear." Dr Ganeshan recorded these findings: "There is a Weber Type C fracture associated with the ankle. There is a spiral fracture above the level of the ankle joint, with a transverse fracture of the medial malleolus which is undisplaced. There is no widening of the syndesmosis nor the ankle mortise. The possibility of syndesmotic injury however is raised." Fortunately, any suggestion of any injury to the syndesmosis is not mentioned subsequently. 1. The plaintiff may or may not have been accompanied to the doctor's surgery and the X-ray centre by her husband. Her husband had phoned their daughter and their daughter attended upon her mother at the X-ray centre. That is confirmed by Mrs Kalache, by her daughter Georgia and by Mr Mehdi. Mr Mehdi wheeled the plaintiff back to the mall, in particular, the car park of the mall, after the X-ray had been performed and it appears that the plaintiff was placed not in the car in which she had been driven to the mall by her husband, but into her daughter's vehicle. They then drove to the Cecil Hills Medical Centre. 2. The Cecil Hill Medical Centre contains a note made by Dr Fadi Metti at 5.28pm. However, it is clear that the note was written after the event and in fact is recorded as being "in retrospect". The note is this: "Slipped early morning in the shopping centre. Seen by another [GP] in Stockland Medical Centre. Referred for X-ray. Came with X-ray hard copy and report. X-ray review, X-ray review..: sustained multiple fractures to fibula and medial malleolus. Diagnosis explained. NV [I do not know the significance of these initials] intact distally. Advised needs urgent orthopaedic surgical intervention. Referred to Liverpool Emergency Department." 1. The plaintiff's daughter then took the plaintiff to Liverpool Hospital. The plaintiff's arrival at the hospital was registered as occurring at 3.56pm. The plaintiff was seen by the triage nurse, Ms Lauren Nicole Keen, at 4.03pm. The triage comment is this: "Fall and painful right ankle. X-ray shows Weber C fracture. On examination swollen right ankle and distal lower leg. Pedal pulse present. Limited movement to toes. Medical history non-insulin-dependent diabetes mellitus." The hospital records indicate that the plaintiff was seen by an emergency physician, Dr Sunny Chi Yoo. The records suggest that that consultation happened at 4.34pm and that the doctor made his notes at 4.44pm. The notes made by the doctor are these: "62 year old female had a slip and fall at the shopping centre. No head injury or loss of consciousness. Right ankle swelling and unable to weight bear due to pain - GP sent for X-ray and has shown 'Weber C' fracture." The doctor then recorded the plaintiff was treated for diabetes type 2 with tablets, had a history of hypertension and hypocholesterolaemia which was controlled by diet and exercise. The plaintiff had no known allergies. The plaintiff declined to have any analgesia given to her. There is no suggestion that any analgesia was given to her at the mall by the security guards even though they had a first-aid kit. There is no suggestion that Dr Ye provided any analgesia and when offered analgesia at the hospital the plaintiff declined it. Therefore she could not have been in any great pain. That would indicate that she could easily give a history of what had happened to her. 1. On examination Dr Yoo found mild diffuse swelling of the right ankle in particular over the medial malleolus which was tender. There was also tenderness in the distal fibula but no tenderness or deformity of the proximal fibula. There was no foot pain, swelling or deformity. The skin of the plaintiff that the doctor examined was intact. There was no neurovascular problem identified. The plan made by Dr Yoo was that a short leg backslab ought be applied and that there should be a review by the orthopaedic registrar. The note made by the doctor at 16:44 indicates that the plaintiff was attending the orthopaedic registrar at that time. 2. The hospital records contain notes made by the orthopaedic registrar but they are timed to commence at 5.15pm. The notes made by the orthopaedic registrar are these: "62 year old female with right ankle injury. Rolled ankle in shopping centre today. On examination closed injury. Plus plus tenderness medially and laterally. Negligible tenderness over distal tibiofibular joint. No proximal fibular tenderness. X-rays demonstrate Weber C type fracture right fibula. Undisplaced medial malleolar fracture. No widening of syndesmosis. Below knee, back and U-slab applied. X-rays discussed with Dr Laird. Plan, reconsider operation need. Aspirin 150 milligrams per day. Review with Dr Laird next Tuesday with X-ray." 1. All three sources of intelligence from the hospital, that is the triage notes made by Ms Keen RN, the notes made by Dr Yoo the emergency physician, and the notes made by the orthopaedic registrar refer only to complaints made about the right ankle and to no other injury. They also record no mechanism of injury such as a slipping on a spillage or the like, and they all indicate that the plaintiff was capable of giving a lucid history, that she was not affected by any medication and the level of pain was such that she did not require medication. It is clear that the orthopaedic registrar thought the plaintiff could be treated with Aspirin. However, it is clear that the backslab and U-slab were applied probably by 5.15pm. The hospital records appear to indicate that the plaintiff was discharged at either 5.18pm or 5.22pm. 2. The next doctor to see the plaintiff was the orthopaedic surgeon Dr Martin Laird to whom the plaintiff had been referred by the orthopaedic registrar. Dr Laird saw the plaintiff on Tuesday 21 June 2016. Dr Laird's history is this: "Klaudette is a 62 year old woman who had a slip and fall injury to her right ankle. She had an undisplaced bimalleolar fracture with a high Weber fracture all sitting in good position. She was placed in a backslab and today at one week, there has been no loss of position and I am happy to continue non-operative management. She is a type 2 diabetic currently on tablets, and therefore I will probably continue her immobilisation for a bit longer. But at this stage, I am happy to change her to a full below knee cast, and I will see her next week with repeat X-rays." An X-ray was performed on 21` June and is reported thus: "The facture of the distal shaft of the right fibula and the facture of the medial malleolus are noted in satisfactory position in plaster of Paris. The talar mortise is intact." 1. On 24 June, the plaintiff attended upon Dr Aran and gave him the history that I have already referred to. The doctor was the one who put the plaintiff in the full plaster cast below the knee. However, the consultation with Dr Aran happened at 10.32pm. There was an earlier consultation on 24 June with Dr S.L. Jee. Dr Jee saw the plaintiff at 8.31am. Dr Jee's notes are these: "With daughter and husband. Fracture of the right ankle and fibula. Came here for a full cast. Diabetic, but stopped all tablets seven months ago and tried Chinese herbal medications. FBS with that treatment was down to 7 millimoles per litre. Lost 10 kilograms with acupuncture at Bella Vista Dr Luo. But since she caught the flu and had the fall she cannot do the Chinese treatment and she recommenced all her tablets on 14 June after the fall. Taking Diabex 100 milligrams ..(not transcribable).. [twice a day]." The doctor went on to list a number of other medications that the plaintiff was taking to maintain her blood pressure. The doctor then noted the plaintiff was feeling weak and lethargic and was sweaty at night time. He also recorded that the plaintiff had had a cold for three weeks, and that there was pain in the right maxillary sinus, as well as dark yellow phlegm being discharged through her right nostril. The doctor diagnosed sinusitis. It would appear that the plaintiff's health at the time of the fall was not the best, because she had been having flu like symptoms, or symptoms of upper respiratory tract infection or sinusitis for about three weeks before 24 June 2016. 1. The next consultation recorded by Dr Jee was on 27 June 2016, but the plaintiff did not actually attend upon him. The plaintiff's husband went to see the doctor to obtain the results of the blood tests ordered by Dr Jee on Friday 24 June 2016. The doctor noted that a number of readings were high, in particular the reading which indicates whether her diabetes was under control. 2. On 28 June, the plaintiff was seen by Dr Laird two weeks after the fall. The doctor said this: "Her X-rays look great and the cast is lovely. I am now happy to see her in four weeks with the weight bearing film, but she should continue to non-weight bear until that stage. At that point, I will start letting her weight bear in the cast and at some point change it to CAM boot." The X-ray performed at that time showed the fractures were in a satisfactory position. 1. The next medical attendance was upon Dr Laird again on 26 July 2016, six weeks after the fall. On that occasion, the doctor thought that the X-rays were satisfactory and therefore he was "happy to convert her below knee cast to a CAM boot." He thought the plaintiff could weight bear as well as she could from that day forward, and commence doing a gentle range of motion exercises in a months' time. He thought that she could then begin weaning herself from the boot to a supportive shoe, and that he would see her in a further six weeks' time. An X-ray performed on that day showed a healing oblique fracture through the distal fibula shaft, and the alignment was anatomical, and there had been no relevant change since the previous X-ray. 2. The plaintiff next attended upon a doctor, Dr Metti, on 5 August 2016, but that was merely to renew her scripts for the medication she was taking for diabetes mellitus type 2 and hypertension. 3. The next event which might be relevant can be gleaned from the records of Dr Ye at the Wetherell Park Medical Centre. On 16 August 2016, Dr Ye received a request from solicitors acting for the plaintiff to provide a report to them, or a copy of her records to them. In other words, the plaintiff consulted solicitors by 16 August 2016. That is within two months of the event in question. 4. The plaintiff returned to see Dr Laird on 6 September 2016, three months after the fall. Dr Laird's report is this: "Klaudette is now almost three months post fracture and doing fine. She has weaned the boot off but is still reluctant to lose the crutches mainly due to the apprehension rather than pain. She is complaining of some global pain around the foot. Her X-rays look good and I am happy for her to continue to wean the crutches and work on her range of motion with no strict limitations at this stage. I will see her again in two months' time." According to the plaintiff's evidence, she was in the plaster cast for six weeks, then the CAM boot for six weeks. That is consistent with that history recorded by Dr Laird. 1. On 14 September, just over a week later, the plaintiff went to see Dr Jee at the Cecil Hills Medical Centre. Dr Jee's notes are these: "Right ankle better now. On crutches. Not seen any Allied Health since her last care plan. Now asking what she can do to use it. Saw Dr Martin Laird on 6 September and advised physio for her ankle." Dr Jee made a referral to Greenfield Physiotherapy. The plaintiff commenced physiotherapy with Greenfield Physiotherapy at Greenfield Park on 19 September 2016, she had five sessions of physiotherapy which she completed on 12 October 2016. The physiotherapy was solely to the right ankle. 1. On 19 September 2016, that is after completing the physiotherapy, the plaintiff attended upon Dr Metti for two reasons, the first was about the control of her diabetes mellitus type 2, the second complaint recorded was this: "Low back pain radiating to right buttock and leg. No S+M symptoms in lower. No urine or bowel issues. Thinks started since fall in Stockland. Worse now. Already under the care of physio." Dr Metti referred the plaintiff to have a CT scan of her low back, which was performed on the following day. The scan was between T12 and S3. The radiologist, Dr Richard Evans, said this: "The alignment of the visualised lumbar sacral spine is normal. Vertebral body height and intervertebral disc space height is maintained. There are no fractures or pars defects. There is no disc bulge, canal stenosis or nerve root compression identified. There is multi-level bilaterally facet joint hypertrophy. There is an L4 vertebral haemangioma, which is not likely to be clinically significant. Conclusion. Bilateral multi-level facet joint hypertrophy. There is no significant disc bulge, canal stenosis or nerve compression identified." The evidence before me does suggest that the haemangioma is in fact of no clinical significance. The only abnormality shown on the X-ray is the bilateral facet joint hypertrophy, that is degenerative disease of the facet joints. 1. This in a lady who was then 62 years old is hardly surprising. The spine generally degenerates as soon as a human body reaches maturity, that is about the age of 27 or 28, thereafter bony joints tend to degenerate and the fact that the plaintiff has bilateral degenerative disease of her facet joints at the age of 62 is hardly surprising. However that might cause some low back pain. To suggest, as it claimed in these proceedings, that the low back pain is related to the fall in question is absolutely absurd. The only way one could link the two would be an immediate or almost contemporaneous complaint of low back pain, but there was no contemporaneous complaint. The first complaint of low back pain was that recorded by Dr Metti on 19 October 2016, four months after the event. Much of the plaintiff's case is based upon the fallacy post hoc ergo propter hoc. That this not only a fallacy in logic, it is also a fallacy in law and in medicine. With an underlying degenerative condition which is what Dr Y Kai Lee, the plaintiff's qualified doctor now accepts, symptoms can arise at any time. To link the symptoms of the underlying condition to an injury there must be some contemporaneity so that one can find the aggravation or exacerbation of the condition, but here no such finding is available. 2. On 21 October 2016, the day after the CT scan of the low back was performed, the plaintiff was reviewed by Dr Metti with the results. He told her the results were "unremarkable" and reassured the plaintiff, presumably of the fact that there was no reason to be concerned about her low back. However there was a further complaint raised on 21 October, the doctor's notes in that regard are these: "Wants mental health plan, feeling anxious, depressed and stressed. Issues with sleep. Broken sleep, occasional difficulty falling asleep. Tearful at times. Appetite variable. No delusions or hallucinations. Lack of energy. Occasional focusing issues. No smoking, alcohol, drugs. Lack of sexual interest." A DASS 21 survey was completed by the doctor, which he thought was consistent with severe depression, very severe anxiety and severe stress. He arranged a referral to a practitioner known as Shirin Steev. He also prescribed psychotropic medication, Escitalopram. 1. There was no evidence the plaintiff saw Shirin Steev. Indeed on 19 December 2016, a new referral was made to Mr Vlado Svigir. I know from exhibit N that the plaintiff was seen on four occasions by Mr Svigir between 16 February and 13 July 2017. As I understand it, Mr Svigir is a psychologist. There is nothing in evidence from Mr Svigir, so I do not know whether the treatment that he gave to the plaintiff was related to the fall in question, or not. 2. The next doctor to see the plaintiff was Dr Martin Laird on 15 November 2016. That was five nights after the injury. X-ray was performed on that day and is reported, thus: "There has been complete interval healing of the oblique fracture through the distal fibula. No change in alignment. The bones are osteopaenic." In other words, the fracture had completely healed, but the bones X-rayed were showing signs of disuse. Dr Laird's report of 15 November 2016 is this: "Klaudette is now five months post fracture and she looks good. She's out of the boot and off crutches. She has been seeing physio and has a near normal range of motion. There is some slight swelling, which is expected at this stage, and may take many months longer to go away completely. She said she is not walking or returning to the gym, but it is not entirely clear why she has not. I think she is again continuing to be cautious. I have encouraged her to gradually return to all normal activity, including these things, and perhaps some walking in the pool, and I will see her again only as required." 1. In other words, as far as Dr Laird was concerned, the plaintiff had radiologically recovered from her fractures. There was a full range of movement and although there was still some swelling, he thought that there was no reason to stop the plaintiff doing any walking that she needed to do, or anything to stop her returning to the gym. He thought that the plaintiff may have been apprehensive of causing herself pain if she did anything such as walking or going to the gymnasium. Nevertheless, he encouraged her to return to all normal activity. 2. The plaintiff admitted in cross-examination that she has made no further appointment to see Dr Laird about her right ankle. There is no further evidence from Dr Laird before me. The only other medical evidence before me from a specialist is Medico Legal assessments by Dr Y Kai Lee, an orthopaedic surgeon qualified by the plaintiff's solicitors, and Dr Richa Rastogi, a psychiatrist qualified by the plaintiff's solicitors. I have also been provided with a psychiatric opinion for the defendant from Dr Doron Samuell. Each side has also provided me with a report concerning the plaintiff's need for home help or assistance, and the report tendered by the defendant contains much evidence of the opinion of Dr Seamus Dalton, a rehabilitation physician who had been qualified by the defendant, but to the tender of whose report the plaintiff successfully objected. Nevertheless, the plaintiff did not object to those parts of Dr Dalton's report quoted by the defendant's occupational therapy assessment maker, Mr Peter Williamson. He clearly used Dr Dalton's opinion to support his own opinion and insofar as he quoted the opinions of Dr Dalton, or his findings on examination, that has become evidence before me. 3. As it approaches the luncheon adjournment, I shall say this, I have not lost sight of the fact that I have not yet definitively made any finding about the question of liability. However, I am dealing with the evidence concerning damages thus far, merely to point out histories which may support or not support, the plaintiff's version of liability and for certain other reasons relevant to liability. 4. The next medical help obtained was from Dr Jee, who saw the plaintiff on 24 November 2016. The note made by Dr Jee is this: "Came to fill in Carer Payment Form from Medicare for her recent right ankle fracture. She is now mobile and walks normally. Was in a wheelchair earlier. Can take care of herself but wants to apply for her son, Rabih to be carer." In evidence is the form that Dr Jee completed at that time. The person being cared for was the plaintiff and the carer was the plaintiff's son, Rabih, who spells his surname K-A-L-A-C-H, that is without the terminal E used by the plaintiff. When asked to describe the disability or medical conditions of the person being cared for, Dr Jee stated, "multiple right ankle fracture." He did not state that it included the low back. The next two questions I find curious in their answers. The next question is this, "Did the disability and/or medical condition(s) for which the person requires additional care commence more than 12 weeks ago?" The doctor answered that question, "Yes," but failed to include the date of the commencement. The next question is this, "Are the current care needs attributable to an acute onset of the disability and/or medical condition(s)?" To which the doctor answered, "No." Insofar as the right ankle fracture was an acute fracture occurring on a fixed date of 14 June 2016, the doctor ought to have stated that. 1. The next question was, "Does the person require help on a daily basis because of their disability and or medical condition(s) to carry out routine, personal activities OR because they may be at risk to themselves or to others?" That question was then answered, "No." The next relevant question is, "Is this care required for a significant period of each day (at least equivalent to the normal working day)?" The answer to that question is, "No." The doctor went on to describe the plaintiff's disability or medical condition as "temporary," and he thought it might continue for between 6 and 12 months. A questionnaire then follows which can be summed up thus: The plaintiff was continent in both bladder and bowel; the plaintiff was independent in grooming, toilet use, feeding, transfer from bed to chair and back, being able to sit and stand; she was independent in her mobility, independent in dressing, independent in using stairs, both up and down. Independent in bathing and was not cognitively impaired; the plaintiff had never suffered from memory loss or aggression, or disinhibition but had sometimes shown signs of depression and withdrawal from social contact. This report does not paint a picture of a lady of having any major disability of any significance. LUNCHEON ADJOURNMENT 1. Before the luncheon adjournment I had discussed the plaintiff's attendance upon Dr Jee on 24 November 2016 concerning the request for a carer payment form being made to enable the plaintiff's son Rabih to become her carer and what the report says about the plaintiff's condition. Within a week on 30 November 2016 Dr Jee recorded this: "Daughter Georgia came back to ask that her forms [be] corrected. Forms corrected as per daughter, Georgia's, wishes. Says she needs constant daily care for a full day, she cannot stand for long." In other words, the plaintiff's daughter returned to see Dr Jee on 30 November 2016 and wanted the social security form changed to state other than what it had stated on 24 November 2016. Of whatever form was issued by Dr Jee on 30 November 2016, no copy was kept in the records of the Chester Hill Medical Centre. The only other attendance recorded by Dr Jee in 2016 was one on 22 December 2016, when the plaintiff's husband came to obtain a script for the Escitalopram on behalf of the plaintiff. 1. The plaintiff's next attendance at the medical centre was on 10 March 2017. The plaintiff told Dr Aran on this occasion that she still had pain in her right ankle. The reason for her attending upon the doctor was for the preparation of a "medical report", I presume for the purposes of the current litigation. 2. The next attendance at the medical centre was on 17 May 2017, when the plaintiff saw Dr Sylvia Ham. The plaintiff attended for three reasons. The first was to have a pap smear. The second was for her diabetes condition. The third was for "chronic right ankle pain since her traumatic fracture." Dr Ham recorded the plaintiff had ongoing anxiety and apprehension when walking, that she might fracture her leg again. The only other entries made by Dr Ham in her notes were that the plaintiff had only seen a psychologist once, which appears to be inconsistent with the records relating to the treatment by Mr Svigir between February and July 2017, and that the plaintiff took Lexapro intermittently. I understand that Lexapro may be a drug that is used for treating conditions such as anxiety and depression. However, there is no direct evidence to that effect before me. 3. The plaintiff returned to see the practice on 12 July 2017. On that occasion the plaintiff saw Dr Jee. The plaintiff went for the results, presumably of the tests organised by Dr Ham on 17 May 2017. The plaintiff told Dr Jee that she was going to Lebanon for two months, and wanted to take her medications with her, which led to a further issuing of prescriptions and letters no doubt referring to the medication. 4. The next medical attendance that I know of was upon Dr Y Kai Lee, orthopaedic surgeon, on 19 October 2017. The history recorded by Dr Lee is this: "She fell down in Stocklands Wetherill Park on 14 June 2016. There was something slippery on the floor and she slipped. She tried to protect with the right hand and the right leg twisted. She landed on the buttock. Security came and helped her up. A crack was heard in the right ankle. They took her to the medical centre. Ambulance took her to Liverpool Hospital. She had an X-ray but did not have operation. She was referred to Dr Martin Laird in Liverpool. She had a slab on and then a proper plaster for six weeks. It was later changed to a boot. She had physiotherapy and hydrotherapy afterwards. She was a carer for her husband and could not care for a number of months after the injury." There is clearly an averment to Dr Lee that there was something slippery on the floor, but what it was was not identified, which is of little assistance. Furthermore, the plaintiff told me that because she slipped, there must have been something slippery on the floor, and that appears to be the history that Dr Lee may have been given. 1. Under the heading "Current complaints", Dr Lee recorded this: "There was still pain in her right hand and wrist, which was bruised at the time of injury. The right ankle is still painful and swollen. The pain wakes her up at night. She can walk about 15 minutes and has to stop because of the pain. Her right knee also hurt. Her back is painful. The right hand sometimes feels numb." This is the first occasion on which there was a complaint about the right hand. This is also the first occasion on which there was a complaint about the right knee. Neither of those areas of the body had been the subject of any earlier complaint to any medical practitioner of whom I know. 1. The plaintiff saw Dr Jee again on 13 November 2017. According to Dr Jee, the plaintiff came for a blood test. The notes continued: "Wants to check for everything. She is [diabetic] and hypertensive. She declined blood pressure check. Wants a script for Karvea. No more left." The doctor organised tests for glucose, lipids, urate, iron studies, vitamin B studies and vitamin D studies. 1. The plaintiff returned to the Cecil Hills Medical Centre on 12 December 2017, and on that occasion saw Dr Yara Chehade. The first discussion was about the results of the testing organised by Dr Jee on 13 November 2017. There was a change in one medication. There was a discussion about the plaintiff's hypertension and the blood pressure readings which the plaintiff was taking at home. Dr Chehade noted worsening diabetic control. She then noted that the plaintiff had never seen a podiatrist, even though she had been diagnosed as a diabetic ten years earlier. The doctor questioned whether the plaintiff had ever seen an optometrist, and noted that the practice did not have any record of any attendance upon an optometrist. It is likely that Dr Chehade was concerned about diabetic retinopathy. The doctor went on to note that the plaintiff's diet was poor, and there was a lengthy discussion concerning diet, exercise and the role of medications. In essence, that was not a consultation about any problem referrable to the current proceedings. 2. The next attendance at the general practitioner's clinic was on 26 February 2018 when the plaintiff went for a drivers medical licence check up. In essence, the plaintiff had to have an eye check up to ensure that she could have her driver's licence reissued. 3. The next attendance was on 29 March 2018, when the plaintiff attended because of a superficial laceration over the left thenar eminence which had occurred 24 hours earlier. That unfortunately became infected and there was also cellulitis about a site where a injection had been administered on 29 March. The plaintiff attended for treatment for the cellulitis and the continuing problem in the left hand on 31 March 2018. The clinic's records indicated the plaintiff saw a doctor on 3 October 2018, but for what condition the notes do not disclose. 4. She went back to see Dr Jee on 5 October 2018, accompanied by her daughter. The doctor noted that the plaintiff had applied for a disability support pension from Centrelink. He noted that the application was still pending. The plaintiff wanted a medical certificate to give to Centrelink. The notes continue with a complaint about the right ankle where the double fracture was transmogrified into a triple fracture and was said to be still causing pain and swelling. The plaintiff told the doctor that she now had osteoarthritis in the ankle, which had commenced since 14 June 2016. I am unaware of any radiological investigation made up until this time which shows the plaintiff did have osteoarthritis of the ankle. The next attendance at the clinic was again to see Dr Jee on 12 October 2018. The plaintiff went with her husband on that occasion to get the results of the investigations ordered by Dr Jee on 5 October. On this occasion the plaintiff told Dr Jee that since the fall at Stocklands Wetherill Park, she was having pains in her right knee and right hand and she needed ultrasounds and investigations for those problems. That is the first occasion on which the plaintiff complained to her general practitioner about her right knee and right hand. That complaint was two and a half years after the fall with which I am concerned. 5. An ultrasound of the right hand was made on 18 October 2018. There was noted to be a small sheath effusion of the second compartment of the right wrist, that is over the extensor carpi radialis longus and brevis with minimal to mild sheath thickening, suggestive of mild tenosynovitis. There appeared to be also a small wrist joint effusion. The radiologist noted that the median nerve at the carpal tunnel appeared enlarged with the surface of 0.2 centimetres which could be related to a carpal tunnel syndrome. 6. A right ankle ultrasound was also performed on 18 October. The only abnormal finding was that the deltoid ligament was mildly heterogeneous and thickened which the radiologist thought could be related to a healed partial tear or sprain of that ligament. However there is no suggestion that the ligament was in fact damaged in the investigations performed in 2016 and 2017. 7. An ultrasound of the right knee was performed on the following day, 19 October. That is reported thus: "Bony spur formation noted at the patella attachment of the quadriceps tendon. The patella tendon is intact. Trace of fluid noted in the supra patella recesses of the knee joint, is within physiological limits. Medial and lateral collateral ligaments are intact. No significant popliteal cyst." The conclusion made by the radiologist was this: "Intact extensor mechanism and collateral ligaments. If there is clinical suspicion for a meniscal or cruciate ligament injury, further evaluation with an MRI scan is suggested." There was no such further investigation. A bony spur formation at the patella attachment or the quadriceps tendon is probably a local reaction of some degenerative problem. The trace of fluid in the supra patella was clearly of no significance as it was within normal limits. Essentially there was nothing traumatic shown up by this ultrasound of the right knee. 1. I have omitted to point out that on 28 May 2018, the plaintiff was seen by Dr Richa Rastogi, a psychiatrist retained by the plaintiff's solicitor. The plaintiff attended upon Dr Rastogi with her daughter and an Arabic interpreter. The history recorded about the event relied upon by the plaintiff is this: "On 14 June 2016 at 11.30am, she was walking in Stocklands Mall in Wetherill Park when she felt something slippery on the floor, causing her to slip on the right side. She tried to move her right hand to protect herself and in the process twisted her right ankle. She landed on her buttocks and heard a crack in her right ankle. She was unable to weight bear and was sitting on the floor. A security officer came to help her while she contacted her husband straight away. Her husband came to her aid and with the help of the security officers tried to remove her boot but was extremely painful and she was screaming in pain. The management stated that her family would have to call an ambulance and pay for the transport. They provided her with a wheelchair and she was taken to the medical centre within the shopping centre. She saw the local GP who advised her to have further X-rays and scans. She was taken in a wheelchair through the outside of the shopping centre, for X-rays. She had X-rays of the right ankle that showed comminuted triple fracture of her right fibular and medial malleolus. She was advised to transfer to Liverpool Hospital for ongoing management. She had a back slab on her right ankle as she had severe swelling and was discharged on crutches and wheelchair. She had a full plaster for six weeks and then changed to CAM boot for six weeks. She was being supervised by the orthopaedic surgeon Dr Martin Laird regularly for months. When the CAM boot was removed, she was partially weight bearing on crutches and was unable to weight bear fully even after 12 weeks. She commenced massage, physiotherapy and hydrotherapy on ongoing basis until now. She experienced sharp pain and numbness in the right ankle. She has swelling in the right ankle and has difficulty with weight bearing for long periods of time. She has referred pain in the right knee and she reported pain in the right hand. She can only walk for 15 minutes and has to rest and stop. She is unable to stand, even for five minutes without having back pain. She reports sharp, shooting pain in her right ankle and has pins and needles in her right leg. The physical injury is being managed conservatively with regular acupuncture and massages at least two-three times a week." The history goes on to record symptoms that might be of significance to a psychiatrist and about a history of her general medical condition and her personal circumstances. Again there is a history of slipping on something, but the identity of that upon which the plaintiff slipped is not disclosed. Daughter's evidence 1. None of the histories that I have canvassed assist in determining what, if anything, was on the floor which may have caused the plaintiff to fall. What is relied upon by the plaintiff is evidence from her daughter Georgia. As I have already mentioned, the plaintiff was taken to the Liverpool Hospital by Georgia. In chief Georgia told me that her mother was seen by the triage nurse and then was taken inside the hospital and was seen by a male doctor. This evidence was then given: "Q. What occurred in that room [examination]? A. The doctor at that time was feeling mum's ankle and telling her, 'Where do you feel pain? Where do you feel this?' And she was advising him what she felt and then he told her to lay down stomach-first, on the bed there. Q. Now, once your mother lay down, you say on her stomach, then what happened then? A. Then the doctor asked her to lift her right lower half where her calf is all the way down, so lift it facing either - her foot facing the top of the ceiling and that's when they said, sorry, that they had to do the - sorry, I apologise. I forgot a section there. They advised that they wanted to do a temporary plaster. Q. Did they proceed top fit the temporary plaster? A. Yes. Q. Did you observe that process? A. Yes, I did. Q. Approximately what time did this occur? A. I would say approximately about maybe about 2.30pm, 3pm, maximum, around that time, between 2.30 and 3, I would say. Q. You observed the temporary plaster being applied to the right leg? A. Yes. Q. What did you observe as they applied the plaster? A. As they - before they applied the plaster, they had to actually cut my mum's pants off, the lower half, to put the plaster on. As he was cutting it, I noticed on the back of .. the top half of the leg, I noticed it looked wet. I didn't understand what it was at the time, but it did look wet. That's all I observed." That evidence can be found on p 207 of the transcript. On the following page, the witness said that this area that she observed was oval in shape on the plaintiff's right thigh and was about 14 centimetres long and its greatest width was about 10 centimetres. This, I am asked, to accept was a patch of clothing that had been made wet when the plaintiff fell at 12:11:48 on that day. 1. Further evidence about this was given in cross-examination. The witness, Georgia, indicated that the observation that she made of what was on the plaintiff's right posterior thigh occurred around 2.30pm. She said she was a hundred per cent sure that that was the case. This evidence was then given: "Q. If the records at Liverpool Hospital say that your mother arrived at the hospital at about 4pm, you'd accept that that's correct? A. I don't recall it being 4pm. It was, it was earlier than 4pm. HIS HONOUR Q. Look, the records before me say that your mother reached the hospital at 4 minutes to 4, [seen] at triage at 3 minutes past 4, right? A. No. Q. She arrived at the hospital at 4 minutes to 4 and was seen at triage at 3 minutes past 4. You dispute the accuracy of those records? A. If that's what they said [then], obviously they're accurate. Q. She saw the doctor at 5.15? A. Possibly. I'm not sure about times, your Honour, I'm not sure, sorry. I don't know exactly times. It was a shock at the time. Q. But your evidence is that they only cut the leg off her pants when they went to apply the plaster? A. Plaster, that's right. Q. So, it was after she saw the doctor? A. It would have been, yes." 1. As I sought to mention earlier, the plaintiff saw the orthopaedic registrar at the time said to be 5.15. However it is likely that the plaster may have already been applied then, from the language used in the records. But the records certainly seem to indicate that the plaintiff saw Dr Yoo at 4.34pm. In other words, the application of the plaster may have been between, say, 4.30 and 5pm. In essence, the plaster was applied nearly four hours after the fall. It was only then that Georgia noticed a wet patch on her mother's posterior thigh, a wet patch on her pants. Consideration 1. I am asked to accept that that wet patch had been there since 12:11:48 for over four hours, and that it was not noticed by anybody, including the plaintiff herself, her husband, the two security guards, the cleaners, Dr Ye, the radiologist, Dr Metti at the Cecil Hills Medical Centre, or that it had been mentioned to or noted at the hospital itself by either the nurse, Dr Yoo, or the orthopaedic registrar. Even accepting that Georgia's recollection be accurate, it flies in the face of common human experience for a wet patch on a piece of clothing to remain that long without being noticed by anybody, in particular, by the wearer of the clothing. One would think that the leg of the pants against the plaintiff's thigh was something that she would feel. Furthermore, there are many ways in which the plaintiff could to have acquired moisture on her posterior thigh. She had been sitting in the wheelchair. She had been to the doctor's surgery at Wetherill Park, then to the radiologist, then she was returned to the wheelchair. Then she sat in her daughter's car and went to the Cecil Hills Clinic. She then was driven from the Cecil Hills Clinic to the hospital and waited probably, at least, half an hour to see Dr Yoo. Anything upon which she sat could have been wet and cause the wetting of her posterior thigh. Furthermore, the size of the wet area noted by Georgia indicates a not insignificant amount of fluid or water, and the larger the spillage, the more likely it would be to cause somebody else to fall or to be inconvenienced, that is, to have to try to step around the spillage, and the more likely it is to have been noted by somebody prior to the plaintiff's coming into contact with it. 2. In essence, I am asked to infer from the mere fact that the plaintiff fell, that she must have slipped on something, and that something was related to the wet patch noted by Georgia some four hours or more after the event. The plaintiff has the onus of proof. The plaintiff must establish on the balance of probabilities that the floor of the mall at the area where she fell was contaminated by a spillage which caused the fall. In light of the evidence before me I am not so persuaded. The evidence is extremely tenuous. One would expect, in the normal course of events, that a wet area on a trouser leg, especially the back of the thigh when a person was sitting on it for four hours or more, would be dried by the natural heat of the body and the friction between the flesh of the thigh and the trouser leg and the surface upon which the plaintiff was sitting. Four hours is a long time and is a time within which an area would easily dry. 3. As the defendant has submitted the plaintiff's case must fail in limine. I am not persuaded on the balance of possibilities that there as any liquid substance on the floor of the Stockland mall at Wetherill Park which led to the plaintiff's fall. I am not persuaded of the allegation to that effect made in par 6 of the statement of claim. The plaintiff's claim must therefore fail. I do not need to consider the very careful submissions put to me by Mr Lynch as to how, if I made that finding, the defendant could be held liable to the plaintiff in the tort of negligence. 4. Even if that were established a question of contributory negligence would then arise because the plaintiff did not see what is alleged to have been the cause of her fall. However, the fact the plaintiff did not see it and none of the 55 persons mentioned by Dr Culvenor, or the 88 that I saw last evening when reviewing the film, or the 384 identified by Mr Lynch in his written submissions, noticed any spillage, proves, if there be any need to prove, the point that it is highly unlikely that there was any spillage on the floor of the mall. I do not know why the plaintiff fell. That was the conclusion reached by Dr Culvenor, the expert qualified by the defendant, in what to me was a very carefully and logically drafted report, or at least such as remains after various objections that were made by Mr Lynch. 5. There are a number of other matters which also have to be considered. I do not accept the plaintiff injured her right hand or wrist. There is just no contemporaneous report about that area of her body. In fact as I pointed out the first mention of any problem with the right hand or wrist was to Dr Y Kai Lee on 19 October 2017 and no mention was made to a general practitioner until the mention was made to Dr Jee on 12 October 2018, two and a half years after the event. I have already found that the plaintiff's low back condition is unrelated to the fall for the same reason, that is a lack of any contemporaneous complaint. It is impossible to link any problem in the plaintiff's right knee to the fall now in question, especially when the only abnormality shown radiologically appears to be of a local bony formation which speaks of some perhaps degenerative or reactionary process. That is a reaction to friction between two anatomical structures. That could not be caused traumatically. 6. There is a suggestion that the plaintiff's use of crutches may have led to the problem with the hand. However the plaintiff had discarded the use of crutches by the time she last saw Dr Laird on 15 November 2016 and the first complaint about the right hand was on 19 October 2017 some eleven months later when she was seen by Dr Y Kai Lee. I do not know what sort of crutches the plaintiff used. Were they Canadian crutches or were they long or sub-axillary crutches? How the hand interacts with each of those crutches is different. How it would cause carpal tunnel syndrome has not been explained by anybody, or for that matter any other problem in the wrist or hand. 7. Another area which causes concern is an implicit suggestion that it may be the stoicism of the plaintiff which caused her to fail to complain much earlier than she did about various other areas of her body. However, the evidence before me strongly indicates that the plaintiff's reaction to this event was the antithesis of stoicism. As Dr Laird himself pointed out the plaintiff appears to have been incommoded by apprehension of pain rather than pain itself. A relevant consideration are observations made by Mr Peter Williamson, the occupational therapist, who prepared a report dated 11 February 2019 which is exhibit 4 in these proceedings and was designed to address the need for past and future personal care and domestic assistance. In [1.7] Mr Williamson said this: "Ms Kalache moved with a slow but smooth gait throughout my assessment including when walking on paved and grassed surfaces. Her gait pattern on stairs was observed to be slow, step over step pattern relying heavily on a handrail particularly when descending stairs." After describing the home environment Mr Williamson said this: "Ms Kalache was observed to be able to access all areas of her home without difficulty. Heavy reliance on a handrail is not considered to be necessary as a consequence of injury sustained in the subject accident. No housing requirements are considered to exist as a direct consequence of any injury sustained in the subject accident." When discussing pain in [6.3] of his report Mr Williamson said this: "Ms Kalache reported that she experienced a pain at a level of nine on a Verbal Analogue Scale that had a maximum score of ten. However her presentation during my assessment was not consistent with this report. There was no facial grimacing, shifting of position, guarding of body parts, rubbing of body parts, sharp intakes of breath or avoidance of activity on request. She reported pain in her right hand and wrist, the medial side of her right knee only, and pain around the site of the fractures of her right ankle. She advised that she experienced lower back pain which travelled down the right side to the rear of her right leg." In other words when he was interviewing the plaintiff she said that her pain level was severe, nine out of ten. That was quite inconsistent with her presentation to him. 1. Mr Williamson also quoted the report of Dr Dalton of 30 July 2008 as containing this statement by Dr Dalton: "Overall I found Ms Kalache to be a rather vague historian. She constantly referred to pain and her daughter was frequently interjecting to try and clarify what her mother's symptoms are. Ms Kalache simply indicated that she had a number of pains, but could not identify any aggravating or relieving factors. She stated that her foot and hand pain stops her from doing things around the house, and that her back aches with stationary postures. Her daughter stresses that the acupuncture seems to be giving her mother the most relief, but is only of short-term benefit and occasionally she goes to see the acupuncturist up to four times a week, although both her daughter and Ms Kalache confirmed that there had been no overall improvement and this only provides very short-term temporary relief of her symptoms. She occasionally does some cooking, but her 45 year old son is now doing all of the household tasks and domestic chores…Essentially examination of this lady was unremarkable. I could find no joint restriction in her upper or lower limbs, no neurological deficit no reproducible pain or guarding, and the only finding was that she was quite deconditioned with poor core stability and some restriction in squatting." In other words, what was said verbally by the plaintiff at times was quite inconsistent with the underlying physical reality. Rather than being phlegmatic or stoic, the plaintiff is in fact prone to hyperbole and exaggeration. Therefore, the plaintiff's late reporting of symptoms cannot be assigned to a stoic or phlegmatic approach to her injuries. 1. Earlier today, I quoted the history recorded by Dr Rastogi. In that history, the plaintiff said "Her husband came to her aid and with help of the security officers, tried to remove her boot but it was extremely painful and she was screaming in pain." The boot was in fact removed by the female security guard Ashli. There is nothing to suggest that the plaintiff was in discomfort at the time. In fact, none of the CCTV footage suggest that at any time was the plaintiff in distress, that she was crying out, screaming, writhing in pain or the like. That is also consistent with having no pain relief given to her at any time prior to the application of the plaster at the hospital. In fact, when first seen at the hospital, she declined any pain relief and some was only prescribed by the orthopaedic registrar, and that was the application of aspirin. Quantum 1. Lest the matter go further, I am required to assess damages. The assessments urged upon me are quite different. The defendant submits that there should be an award of damages for the plaintiff for $7,809.39 being 15% of a most extreme case for noneconomic loss, a sum of $6,500, and past out-of-pocket expenses of $2,309.39. The plaintiff urges upon me an award of damages of $146.050.92. Mr Lynch submitted that I should award the plaintiff 27% of a most extreme case which is $66,000. He also claimed $32,137.96 for past gratuitous assistance and $31,586.85 for future paid domestic assistance. He also asked for $6,360.90 for past out-of-pocket expenses, and $9,965.21 for future out-of-pocket expenses, which includes buffers for things such as future travel and future radiological investigations. 2. As I have said, I accept that the plaintiff in the fall in question sustained an undisplaced bimalleolar fracture with a high Weber B fracture as identified by Dr Martin Laird and for which he treated her. I accept that the plaintiff was required to wear a plaster below the knee for six weeks, and then a CAM boot for a further six weeks, and that she was then on crutches for a further two months. All told, there was a period of five months treatment, which included some physiotherapy. If there had been a complete recovery by that time, I would not allow the 15% of a most extreme case that was urged upon me by Ms Dinkha for the defendant. But I accept the plaintiff's bones were osteopenic which indicates that there was disuse for some considerable time after the fracture, which may have been due to apprehension by the plaintiff of the possibility that she might again suffer pain or might again fracture the leg. I accept that that does increase the plaintiff's damage for noneconomic loss to the 15% urged upon me by Ms Dinkha. Equally, I would allow the out-of-pocket expenses that the defendant submitted I should give to the plaintiff, in the event that she were successful in her action. 3. I do not accept that the plaintiff injured her right wrist or hand, or that she developed carpal tunnel syndrome as a result of her injury or any sequelae thereof. I do not accept the plaintiff injured her low back or coccyx or right knee as a result of any injury which she sustained in the fall, or as the necessary sequelae of that injury. 4. I accept that the plaintiff was entitled to claim for past domestic assistance. I accept the assessment of that made by Mr Williamson in exhibit 4. Mr Williamson would allow 15 hours and 15 minutes per week during the period from 15 June 2016 to 6 September 2016, a period of 12 weeks, and then would allow two hours and 45 minutes per weeks for a period of six weeks between 7 September 2016 and 19 October 2016. However, he would not allow any other past domestic assistance, nor would he allow any future domestic assistance. Mr Williamson's assessment does not allow the plaintiff to pass the statutory threshold imposed by s 15 of the Civil Liability Act 2002. 5. In making that finding, I should draw attention to this. This is a further quotation made by Mr Williamson from the report of Dr Dalton. This quotation commences at the bottom of p 16 of Mr Williamson's report: "I note that Ms Lethbridge [the plaintiff's expert] has not carried out a clinical examination of Ms Kalache and does not rely on medical evidence to support the disabilities and loss of function which is claimed by this lady. She appears to have based her report and recommendations solely on the subjective reporting of symptoms and disabilities by Ms Kalache, which, in my opinion, is not a reliable assessment of this lady's functional capacity, having regard to the marked discrepancy between her subjective complaints and objective clinical findings on examination. In my opinion Ms Lethbridge has not given due consideration to the fact that Ms Kalache's alleged complaints, avoidant behaviour and requirements for commercial assistance are not consistent with physical injuries sustained in the subject accident. Suffice to say that the objective medical evidence regarding injuries sustained by Ms Kalache did not support Ms Lethbridge's recommendations for past, present or future care and assistance." Mr Williamson goes on to make this further quotation on Dr Dalton's report: "Ms Kalache is independent in all aspects of self-care and activities of daily living, given her presentation at this assessment and examination findings, I do not consider that there is any requirement for domestic and household assistance arising from injury sustained in the subject accident…other than would have been needed for a period of three months during the time that she was mobilising in a cast and in a boot. Ms Kalache has not required any assistance with domestic and household tasks. There is no present or future need for domestic and household assistance arising from injuries sustained in the subject accident and such a claim is not supported by the contemporaneous medical records or her current presentation and objective clinical findings." The criticisms made of Ms Lethbridge's assessment made by Dr Dalton are in my view completely valid. 1. No-one needs any further reasons do they? DHINKA: No your Honour. RICKETTS: No your Honour. 1. For those reasons I give verdict and judgment for the second defendant against the plaintiff. ********** Amendments 03 December 2019 - Amended hearing dates to "14-16 August, 10 September, 21-22 October 2019" Amended "O. Dinkha (Defendant)" to "O. Dinkha (Second Defendant)" Amended"HBA Legal (Defendant)" to "HBA Legal (Second Defendant)" 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: 03 December 2019