Rodd v Hall

HIS HONOUR:

Unless otherwise indicated, I find the facts to be as follows.

The plaintiff was born in September 1958 and is now almost 61. She was an employee of the Commonwealth Bank for approximately 20 years from 1976 until 1996. She was an employee of Qantas airlines for 18 years until accepting a redundancy in 2012. In that year, she returned to reside in Wagga Wagga to assist and care for her mother who had been diagnosed with dementia.

In early August 2013, the plaintiff accepted a temporary position as a Customer Service and Information Manager with the Eurobodalla Shire Council in Moruya, New South Wales. On 12 August 2013, she travelled to Moruya and undertook her final orientation meeting with the Eurobodalla Shire Council.

On 12/13 August 2013, the plaintiff was a paying guest at the Moruya Motel located on the Princes Highway in Moruya. The plaintiff occupied room 4.

At all material times the defendants were the owners of the Moruya Motel and were responsible for the care, control and management of that enterprise.

At approximately 6.15am on 13 August 2013, the plaintiff took a shower in the bathroom of room 4. While doing so, a quantity of water made its way from under the shower curtain and onto the adjoining tiled floor.

The plaintiff’s evidence on this issue (which I accept) was as follows:

A number of photographs were taken of room 4 by the plaintiff’s liability expert, Mr Dohrmann. The following references are to the photographs in his report and the Court Book (CB), which the parties prepared.

Under cross-examination the plaintiff’s evidence (which I also accept) was as follows:

In her evidentiary statement of December 2018, the plaintiff described what happened as follows:

In support of the plaintiff’s claim, two reports by Mark Dohrmann dated 14 August 2014 and 22 July 2019 were tendered. The only difference between the reports is that the second report comments on a report of Dr John Cooke relied upon by the defendant. The second report also sets out some additional results of testing.

Mr Dohrmann was a professional Consulting Engineer with additional post graduate qualifications in ergonomics. He had post graduate qualifications in ergonomics and had practised in that field since 1976.

Mr Dohrmann travelled to Moruya on 26 June 2014 and made measurements, carried out tests and took photographs of room 4 in the Motel. He also photographed a manual provided for guests which included in its contents – “floors can be slippery when wet, please use mats provided”. That manual was in use at the time of his inspection. At trial there was no evidence as to when that information was placed in the manual and whether it was in the manual at the time of the plaintiff’s accident.

Mr Dohrmann made his assessment of liability by relying upon the following assumed facts.

None of those assumptions were challenged when the plaintiff was cross-examined, except to the extent set out in the extracts of evidence above.

In his report, Mr Dohrmann set out the relevant slip resistance standards and described the methods of measuring slip resistance used at the present time and in the past. When dealing with the current approach to assessing slip resistance, he said:

Relevant features of motel room 4 can be best seen from the photographs taken by Mr Dohrmann.

The photographs showed a single room with an adjoining bathroom/toilet/shower entered by a single door. The bathroom area and its access immediately outside its door was tiled in 100mm square, well grouted ceramic tiles. The shower was at the southern end of the recess. A photograph of the shower head showed it to be of variable height and angle and its outlet was situated 1.73m above floor level. There was a drainage hole in the floor of the shower, 53cm distant from the back. The single curtain on the shower was approximately 90mm short of the floor. The floor around the drainage hole sloped down from all directions towards the hole at 3 degrees. There was a bathmat provided on the wall of the shower. It was made of cotton and measured 50cm by 68 cm. The toilet and basin area were to the north of the shower recess immediately facing the shower. An unusual feature of the shower itself was that there was no hob or small step separating it from the rest of the tiles in that recessed area.

Based on the facts which he assumed and on his inspection of the premises, Mr Dohrmann expressed his conclusion as follows:

Mr Dohrmann set out the measures which the defendants could have taken to prevent exposing the plaintiff to a risk of injury.

In relation to the report of Dr John Cooke, prepared on behalf of the defendants, Mr Dohrmann said:

Additional assumptions made by Dr Cooke, which were not relied upon by Mr Dohrmann were:

Dr Cooke set out his conclusions as follows:

It should be noted that Dr Cooke did not visit the Motel, nor did he take any photographs. He relied upon the photographs taken by Mr Dohrmann and the tests which he carried out.

Before the trial a meeting of experts took place between Mr Dohrmann and Dr Cooke. They answered questions put to them and set out their responses in a report. The results of that meeting and their conclusions were tendered and were before the Court at CB 438 and following.

Amongst those responses were the following.

Dr Cooke’s opinion was that the above measures were unnecessary because it could be assumed that most people are conditioned to exercise some caution when using bathrooms: HP 197:1999 page 8.

Two of the assumptions relied upon by Dr Cooke were not made out on the evidence. I do not accept that the plaintiff was running late for a job interview and rushed into the bathroom immediately before the accident occurred and I do not accept that the plaintiff was wearing high heeled boots at the time of the incident. As the plaintiff explained in her evidence, she had already been successful in obtaining the job and the purpose of her visit to the Eurobodalla Shire Council was to complete a final orientation meeting. This took place on the previous day so there was no need for the plaintiff to rush into the bathroom on the occasion when the accident occurred. On this issue, I accept the plaintiff completely.

Similarly, I accept the plaintiff’s evidence that she was wearing boots with a square heel, as shown in Exhibit A, at the time of the accident. I do not accept that she was wearing high heeled shoes. This accords with the evidence of Ms Hall, who despite writing something different on the claim form, agreed in her evidence that when she came to the assistance of the plaintiff she did not see any high heeled shoes and observed that the plaintiff was wearing block heeled boots.

Evidence was given on behalf of the defendants by Peta Ann Hall, the first defendant. She identified her evidentiary statement prepared in May 2019. Ms Hall also identified an incident report which she said she completed for the insurer shortly after the accident. That incident report described the accident as follows:

Ms Hall said that this accurately recorded what the plaintiff had told her after the incident when the plaintiff was on the floor.

Ms Hall, who was also a qualified nurse, gave this evidence:

Under cross-examination Ms Hall gave the following evidence:

I found Ms Hall to be a generally unsatisfactory witness. Her manner when giving evidence was defensive and she was somewhat truculent in the way in which she gave her answers, particularly when under cross-examination.

In addition, I found that many of her answers were implausible. This was so when one has regard to the layout of the shower area and in particular, the positioning of the shower head, the 90mm gap between the floor and the shower curtain and the absence of a hob. As Mr Dohrmann explained, because of the layout there would always be a substantial flow of water from the shower onto the more central tiled area outside the shower. It would be almost inevitable that a small cotton shower mat, such as was used in the Motel, would become saturated very quickly. This places considerable doubt on Ms Hall’s evidence that in all the time she was cleaning the bathrooms that she never found a floor mat or a towel soaked on the floor.

There is a difficulty in reconciling Ms Hall’s evidence that the plaintiff told her that she was rushing in the wet bathroom wearing high heeled shoes when Ms Hall did not observe her to be wearing high heels and did not observe any high heeled shoes in the room. As already discussed, no reason has been identified as to why the plaintiff would have been rushing to the bathroom.

A further difficulty arises in reconciling Ms Hall’s evidence that when she entered the bathroom it was not wet and not slippery with the fact of the plaintiff’s fall. It is also difficult to reconcile Ms Hall’s evidence that the bathroom tiles were not slippery even when wet with the test results obtained by Mr Dohrmann. Her evidence on this issue is inconsistent with the contents of the manual at the time of Mr Dohrmann’s inspection.

I have concluded that Ms Hall is an unreliable witness and where her evidence is in conflict with that of the plaintiff, I prefer the evidence of the plaintiff. I found the plaintiff to be an honest witness who was doing her best to accurately describe not only how the accident occurred but the health problems which she had encountered following the fall.

This claim is governed by the Civil Liability Act 2002 (NSW) (CLA). The CLA does not, however, provide a general statement of circumstances in which the relationship between a plaintiff and a defendant will give rise to a duty of care. To this extent, the common law continues to apply to determine whether a duty of care exists.

Given the relationship between the defendants and the plaintiff, i.e. the plaintiff being a paying guest in a motel conducted by the defendants, I am satisfied that the defendants had an obligation to take reasonable care to avoid foreseeable risk of harm to guests such as the plaintiff who were using reasonable care for their own safety (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 (Adeels Palace)). When determining whether a defendant has exercised reasonable care, the actions of the defendant have to be assessed prospectively and not in hindsight (Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126]-[129]; Adeels Palace at [31]).

Once the content of the duty has been identified, it is necessary to consider the provisions of the CLA.

Section 5B requires as its start point the identification of the relevant risk of harm. In the circumstances of this case, I have concluded that the relevant risk of harm was the risk of slipping on wet tiles where water had accumulated in an unexpected location.

In her evidence, the plaintiff made it clear that she was well aware of the danger of slipping on wet tiles and as a result, had taken some precautions to prevent this happening. The problem arose when she encountered wet tiles in a location where such an event could not reasonably be anticipated.

That this was the circumstance which led to the plaintiff’s fall is clear from her evidence:

On the basis of the description of how the water streamed from the shower given by the plaintiff, the risk of the water travelling as far as the vanity was readily foreseeable by the defendants. This is supported by Mr Dohrmann’s description of the shower/bathroom layout and the photographs which he took. Despite her evidence to the contrary, Ms Hall as the person who regularly cleaned the bathrooms, would have been well aware of the capacity of water to travel from the shower towards the toilet/vanity area. She would have been well aware that the risk was not insignificant given the high level of slipperiness created by water coming in contact and remaining on tiles of this kind. I am satisfied that when running a motel of this kind, a reasonable person in the position of the defendants, particularly that of Ms Hall, should have taken at least some of the precautions identified by Mr Dohrmann. These precautions could have been implemented rapidly and at a low cost.

Given the test results obtained by Mr Dohrmann which established that a high level of slipperiness was created when water and the tiles combined, Ms Hall as the cleaner of the bathrooms would have been well aware of this fact and the dangers which it created. This is particularly so when water had a capacity to flow a considerable distance from the shower. Ms Hall should have been aware that there was a high likelihood of harm occurring by way of a slip if precautions were not taken by those running the motel. A slip and fall in a bathroom carries a high potential for serious injury. The cost and burden of taking precautions to avoid the risk of harm was modest and would not have adversely affected the social utility of the activity, i.e. having a shower.

In assessing whether breach of duty has occurred, regard has to be had to the provisions of s 5C CLA.

In this case, the foreseeability of the risk of harm and the likelihood of such a risk coming to fruition required the defendants to have taken at least one of the remedial steps recommended by Mr Dohrmann in respect of each of the bathrooms in the motel complex. Given the modest cost of the actions which could have been taken to eliminate or minimise the risk of harm, that was not an unreasonable requirement to impose on the defendants

The only evidence that there had been no previous falls of this kind in the Motel came from Ms Hall. Even if that evidence is accepted, it is not decisive given the readily foreseeable nature of the risk of harm. Alternatively, there may well have been falls but without serious consequences and therefore not reported to the defendants or if reported not acted on by them. It follows that I am satisfied that the plaintiff has established breach of duty on the part of the defendants.

Once it is established that there is a duty of care owed to the plaintiff and that the duty of care was breached to recover compensation the plaintiff must establish that the failure to exercise due care caused the harm or damage complained of. The requirements to establish causation under the CLA are set out in s 5D.

Once the defendants’ conduct has been found to give rise to a breach of duty, the conduct will be a cause of the plaintiff’s damage if it is a necessary condition of the occurrence of that damage. In other words, would the damage have occurred “but for” the breach of duty. If the damage would not have occurred “but for” the breach, then the breach of duty was a necessary condition of the occurrence of the damage. If on the other hand, the damage would have occurred even if the defendants had not breached the duty of care owed to the plaintiff, then the breach of duty will not be held to be a cause of the damage.

In this case, causation is established because had the water not accumulated on the tiles in an unexpected location the plaintiff would not have slipped. On her evidence, she was still conscious of there being water on the tiles an hour after her shower when she walked towards the vanity. What she was not aware of and alert to, was that water had accumulated in the vicinity of the vanity so that when she turned to collect her toiletries, she slipped. Accordingly, the unexpected location of a quantity of water on the tiles was a necessary condition for the occurrence of the accident.

The possible application of ss 5F, 5G and 5H CLA to the facts of this case was only lightly touched on by the parties. Those sections provide:

It is common ground that the plaintiff was aware of the risk of slipping on the tiles when they became wet. She took precautions to avoid this. Consequently, if the relevant risk of injury was simply slipping on wet tiles and nothing else, then ss 5F, 5G and 5H would apply. In this case, however, the risk of harm was somewhat different, i.e. the risk of slipping on wet tiles in circumstances where the tiles were located in a place where one would not normally expect them to become wet. In those circumstances, there may well be some scope for a submission that this was a risk which was not obvious because of the circumstance that it was not reasonable to expect tiles in this location to have become wet.

It is not necessary to pursue this issue any further in that the matter was not run as a failure to warn case but rather as a case where a reasonable person in the position of the defendants would have taken one or more of the remedial actions identified by Mr Dohrmann.

The CLA provides for contributory negligence as follows:

Section 5R gives legislative emphasis to the principle that the standard of care in determining both negligence and contributory negligence is the same. According to the Ipp Committee [at 8.10] this is the legal manifestation of the fundamental idea that people should take responsibility for their own lives and safety and that they should take as much care for their own safety as they expect others to take for them. Applying the same standard of care, however, does not require a court to ignore at least some of the particular attributes of the plaintiff. It is well recognised at common law for example that in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child. So much was acknowledged by McHugh J in Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [32]):

In this case the plaintiff was aware of the presence of water streaming in the direction of the toilet and the vanity and was also aware that the shower mat was “totally saturated” and that the floor was so wet as to require her to put down two towels. The plaintiff saw water apparently go beyond the point at which she placed the towels. The plaintiff was aware that the tiles could be slippery when wet.

When the plaintiff re-entered the tiled area, she was aware that it had been wet and the saturated mat and wet towels were still where she had placed them. The effect of her evidence is that she knew there was still water present but she did not expect it to be located near the vanity. She knew that there was a reasonable chance that parts of the floor were still wet even if she had soaked up most of the water. In those circumstances, in order to take reasonable care for her own safety, it was necessary for the plaintiff to keep a proper lookout for water when she was walking towards the vanity. She did not keep that proper lookout in that she did not see the water on which she slipped, even though she was being cautious. After she fell, she looked back and “I could see a black scuff mark on the floor where I had slipped, slipped and I could see water from the light because it was very light at that time in the morning” (T.16.27). Accordingly, I have concluded that the plaintiff did fail to take reasonable care for her own safety in that she did not keep a proper lookout for the presence of water on the tiles as she walked towards the vanity, albeit that she did not on the basis of her earlier observations expect water to have reached that point.

The relevant principles have been succinctly set out in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34. There the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said at 494:

Applying those principles and having regard to the plaintiff’s culpability and the causal contribution made by her failure to keep a proper lookout, I would assess her contributory negligence at 20 per cent.

Except as otherwise indicated, I make the following findings as to damages. The plaintiff was initially taken to Moruya Hospital and then transferred to Bega Hospital. The fall had caused a fracture of the neck of the right femur requiring immediate surgery. The plaintiff stayed in hospital for about a week recuperating from the surgery which was required to treat the fracture.

While in hospital, the plaintiff contacted her friend, Peter, who came to visit her regularly and made arrangements to remove her car from the motel. When the plaintiff was discharged from Bega Hospital, she went to live with him for a period of time. She was on crutches at the time and was unable to do very much for herself. She was unable to cook, wash or clean anything. These tasks were performed by Peter.

The plaintiff had been scheduled to commence work at the Eurobodalla Shire Council two weeks after the original fall but postponed her return to work by one week. Although what she could do was limited, the plaintiff worked for the following twelve months without any loss of time. She was still on crutches when she commenced her employment with the Council.

At some time after she commenced work, she went to live in a furnished granny flat in Moruya. She experienced considerable difficulty in looking after herself and in particular, cooking, cleaning and washing. Peter would visit and bring groceries for her and take her washing back to his place to wash. He would do that for her a couple of times a week. The plaintiff was initially on crutches and was non weight-bearing for approximately six weeks after the surgery following which she progressed to using one crutch and then a walking stick. She required the use of the walking stick for approximately 12 months due to ongoing pain and the challenge of walking. The plaintiff returned to work as soon as she could because she did not want to risk losing her job with the Council.

Following her return to work, the plaintiff underwent extensive physiotherapy but the pain in her right hip did not subside. She was in constant pain. The plaintiff continued to attend doctors for treatment and complained to them about her ongoing right hip pain. Things did not seem to be improving and she was becoming very stressed. In May 2014, she was referred for follow up x-ray scans on her right hip which revealed a vascular necrosis of the head of the femur with a collapse of the femur head. She was referred to an orthopaedic specialist who recommended a total right hip replacement.

The plaintiff was a member of HCF but was advised by that health fund that there would be a 12 month waiting period before it would pay for the surgery. The plaintiff was in such pain that she arranged to withdraw $25,000 from her home loan and superannuation fund to pay for the surgery and rehabilitation costs.

Her pain had become excruciating and continued to increase while she remained on the surgery waiting list. She ultimately underwent hip replacement surgery at Nowra Private Hospital under the care of Dr Davison, orthopaedic surgeon, on 20 August 2014. During that surgery, the metal plate, rod and screw components which were inserted in her first emergency surgery on 13 August 2013, were removed.

Immediately after the hip replacement surgery, the plaintiff was very unwell and did not recover for weeks after she was discharged. She suffered nausea and migraine headaches which her doctors attributed to a reaction to anaesthetic. She was unable to go back to work after utilising all her sick and other leave and spent most of the six weeks following the operation in bed or lying on a lounge recovering. She relied heavily on her friend Peter during that time to perform all domestic tasks, including cooking, cleaning, washing and assisting her with personal care. She was unable to afford her rental property in Moruya and had no income. As a result, she moved to Central Tilba to reside with Peter.

Due to her illness immediately after the hip replacement surgery, and her ongoing disabilities and restrictions as a consequence of that surgery, she had to resign from her fulltime position with the Eurobodalla Council. The hours of work combined with a one hour drive each way from Central Tilba to Moruya caused her significant pain. The resignation took effect in November 2014. The Council put her on a casual register in a different role but she did not get many shifts. At this time she was increasingly reliant upon Peter for both financial and domestic assistance.

The plaintiff before her injury on 13 August 2013, had enjoyed running, kayaking, horse riding, bushwalking, snorkelling, swimming and attending the gym. She has not been able to return to any of those activities in her pre-injury capacity. She attempted to stay fit and healthy but has had to significantly reduce her activities and modify her exercise to accommodate her pain and restrictions.

I accept that due to her ongoing pain, and the feelings of isolation, she was unable to participate in her pre-injury social, recreational and work activities and as a result became quite depressed. She said that she continued to feel frustrated with her physical restrictions. The plaintiff was taking anti-inflammatory pain medication for a period of time following the injury up to her hip replacement surgery. After that surgery, she reduced the use of chemical medication and utilised homeopathic support. At the present time she uses natural remedies and supplements as often as she can.

The plaintiff undertook a physical and emotional rehabilitation program of walking and swimming in the Narooma area and attended a psychologist in 2015. At that time, she was obtaining very limited casual work of a few hours per month with the council. In August 2015, the plaintiff moved from Central Tilba to Canberra in an attempt to find suitable work.

The plaintiff gave the following evidence:

The plaintiff gave evidence concerning her condition before she moved to Canberra:

After her move to Canberra, the plaintiff obtained two casual positions performing hotel agent and receptionist work. She found it difficult to cope with the work due to her right hip injury, as standing for long periods caused significant pain. She also worked as a Rental Sales Agent with Hertz for approximately 10 hours per week. At the end of the day, she was extremely tired and in pain from her lower back region. She could not sustain the work due to fatigue, pain and financial stress.

Financially she had difficulty living on a casual wage in Canberra and paying high rent. She had no funds left after payment of necessities for regular medical treatment. She attended a clinical psychologist while living in Canberra, Dr Justine Bannister, but could not afford to continue those consultations.

The plaintiff had difficulty performing hotel work because there were times when she had to lift suitcases and put them into storage, or take suitcases to the rooms. The first hotel where she worked did not have a lift. She had to negotiate a flight of stairs while carrying suitcases. The hotel did not have a porter. This resulted in the plaintiff leaving that job and finding employment in another hotel on the other side of Canberra which had a lift. Although the work was easier at that hotel, the plaintiff still had difficulties lifting suitcases. The plaintiff spent approximately seven months in Canberra.

In April 2016, the plaintiff returned to the NSW South Coast to take up a casual position offering almost fulltime hours at the Narooma Beachfront Resort as the office manager. The job involved taking cabin reservations, checking in and out resort patrons and compiling rosters. She worked in that role for approximately six months. Her duties included walking over a large unlevelled site and standing for long periods at reception, as well as daily laundry duties. These parts of her work aggravated her hip and lower back pain. Her employment was terminated when she took a sick day off from work.

The plaintiff described the work at the resort as follows:

The plaintiff was having difficulty coping with ongoing pain and living on her own. She found it difficult to perform cleaning and cooking tasks. As a result, she moved to Brisbane to be near her brother who could provide her with some support. She applied for many jobs and obtained a casual role in October 2016 as a customer service agent in the events section of Queensland Stadiums located at the Gabba. The plaintiff said that due to her injuries, she was only able to work for limited hours and income was limited. She was unable to afford to continue to live in Brisbane on the reduced income.

The plaintiff remained in Brisbane for approximately six months. She applied for jobs at Brisbane Airport because of her background in hotels and travel. Her efforts were unsuccessful so she moved back to Wagga Wagga in early April 2017.

After her return to Wagga Wagga, she was offered a position, initially as the hotel events co-ordinator, at the Pavilion Hotel. The work involving co-ordinating events held at the Hotel with some duties on reception. She was subsequently required to perform bar and waitressing duties which she could not perform due to her injuries. The plaintiff said that she found that the bar work did not appeal to her at that stage in her life and waitressing was simply too hard. The problem with waitressing work was that the Hotel used heavy pottery platters that had to be passed around. These imposed a lot of pressure on the plaintiff’s shoulders and hips and caused her pain.

The plaintiff gave evidence that her relationship with Peter had finished when she moved to Canberra. Thereafter, she was required to look after herself which she was able to do with considerable difficulty. When she was working at the resort in Narooma, she was living in a fully self-contained little granny flat, attached to a house owned by friends. She was paying a nominal rent.

On or about 15 April 2017, the plaintiff obtained a position at Wagga Wagga Airport with AusFlight Handling working for Regional Express (REX) and Jetgo Airlines. She worked on a permanent part-time basis approximately 25-30 hours per week. Her job involved some standing, however she was provided with a chair/stool to use while at the counter taking reservations and checking in passengers. She was also required to walk around the airport and onto the tarmac and to lift luggage. This involved twisting and bending movements which she had difficulty performing. Pushing wheelchair passengers out to the aircraft caused pain. At the end of a work day, and at the end of the week, she found her hip and lower back symptoms were aggravated and she had to rest rather than perform domestic duties at home. She said that she could not attend social engagements with friends due to pain and was unable to increase her working hours due to her pain.

In March 2018, the plaintiff was offered a permanent part-time position with REX in Melbourne at Tullamarine airport. The twelve months of regional airline and operational experience in Wagga Wagga assisted her with this job application and she was successful in obtaining the REX role. She has continued to work in that role on a part-time basis, living in Melbourne not far from the Airport until the present time.

The job involves shift work, including split shifts and double shifts. The job includes handling luggage and “things like that” which the plaintiff has found to be difficult.

The plaintiff said that on occasions she had to move bags and lift them for weighing purposes. She also had to push wheelchairs. She did not think she would be able to keep working into the future with that job. She was working approximately 35-36 hours per week at the present time.

The plaintiff complained of suffering the following symptoms at the time of the trial:

The plaintiff said that she continued to experience a loss of self-confidence. She was unsure of her future, both physically and emotionally. She found herself being tearful and anxious when she used to be a calm, independent and strong organised and collected person with a professional working career, surrounded by friends and family.

The plaintiff gave evidence concerning the possibility of a promotion while working with REX:

The plaintiff is currently living in Melbourne in another granny flat. She is looking after herself as best she can, doing the laundry, shopping and tasks of that kind. The plaintiff agreed that if a sum of money were available to enable her to receive some assistance with domestic duties, she would be prepared to pay for that assistance.

The plaintiff was extensively cross-examined to the effect that she did not make any complaint to doctors concerning low back pain until approximately the middle of 2015. There was no complaint of back pain to Dr Davison when he saw her in November 2014, nor to Dr Bodel when he saw her on 29 April 2015. It was on the basis of that material that the defendants submitted that any symptoms of back pain and pain in those parts of the body which were unrelated to the right hip were not caused by the fall in August 2013 and therefore could not be taken into account when assessing the plaintiff’s damages.

There are a number of problems with that submission by the defendants. The plaintiff was adamant that she did experience back pain following the fall. As earlier indicated, I found the plaintiff to be a reliable witness and I accept her evidence that she did in fact experience back pain following the fall. A probable answer for why the plaintiff did not make any complaint to her treating doctors concerning back pain until 2015 emerges from her evidence as follows:

The context in which that evidence was given is important. The evidence was not led from the plaintiff. Rather, she volunteered an explanation for why it was that she did not make an immediate complaint of back pain. What the plaintiff was in fact describing is a well known syndrome where one area of pain (in this case the right hip) can mask another type of pain such as back pain which then only emerges if and when the primary area of pain moderates.

I accept that explanation by the plaintiff which adequately explains why she may not have complained of back pain in the 12 months between the fall and the total hip replacement. The plaintiff’s evidence, which was unchallenged on this issue, was that she had never really been pain free from the time of the fall until after the hip replacement. It is significant that she only commenced complaining of back pain to the doctors following the amelioration and improvement in hip pain brought about by the hip replacement.

Dr Bodel in his concurrent evidence explained how the degenerative changes in the plaintiff’s back could have been aggravated by the fall so as to cause those changes to become symptomatic:

Dr Bodel explained how the plaintiff’s groin pain could be related to the hip injury:

When considering this issue, one also needs to keep in mind the evidence of the psychiatrists, Dr Selwyn Smith and Dr Robert Lewin.

When setting out his diagnosis of the plaintiff, Dr Lewin said:

What can be concluded from that unchallenged evidence from the psychiatrist retained by the defendants as to the existence of a Pain Disorder is that the pain felt by the plaintiff is genuine and is clearly disabling, both psychologically and physically. This is so even though Dr Lewin found it was not sufficiently disabling to prevent the plaintiff from working. However, as we know from the plaintiff’s own evidence, she is not able to work at all jobs and that pain does impose restrictions upon what she does, in particular on heavy lifting. Importantly, however, Dr Lewin found that the pain syndrome was caused by the psychological/psychiatric effects of the fall. In other words, to the extent that the back pain has disabled the plaintiff and imposed limitations on what she can do, it was caused by the fall. Put another way, the fall was the necessary condition for the development of the pain syndrome.

There is something of a non sequitur in the analysis of Dr Lewin in that he accepts that there are no “red flags” suggestive of exaggeration or symptom magnification in the plaintiff’s complaints. He also found that the resolution of her complaints of pain depends upon her underlying physical condition. Finally, on the issue of economic loss, he found that the plaintiff should be able to continue her work “despite a range of physical and emotional symptoms”. His conclusion was:

Dr Lewin does not explain how he reached those conclusions. Accordingly, it is not at all clear why, if the plaintiff is genuine in her complaints of pain (be the pain both physical and mental in origin) that pain is likely to resolve in the future and that the pain does not prevent her from working fulltime. It is clear from her evidence that she does have genuine pain and that the basis for this pain is both mental and physical. It seems clear to me from the findings by Dr Lewin that the plaintiff’s psychiatric based problems are having an adverse effect on her capacity to work and have done so in the past. This is not to ignore her physical problems which include an aggravation of degenerative changes in the low back.

Accordingly, contrary to Dr Lewin’s conclusion, I am of the opinion that both the plaintiff’s physical and psychiatric problems have had and are having an adverse effect on her capacity to work.

When considering non-economic loss, it needs to be kept in mind that the physical effects of the fall are still significantly affecting the plaintiff. She still experiences some pain in her right hip. While she is able to walk and perform light exercises, she has never returned to her pre-accident active lifestyle. She cannot run and has been warned against lifting heavy weights, i.e. in excess of 15kgs. For both physical and psychological reasons, her capacity to work has been reduced. Although she is able to look after herself, it takes her longer to perform household tasks and doing them can cause pain. Her psychological and psychiatric deficits have been set out above. Taking all those matters into account and having regard to the plaintiff’s age, I would assess her entitlement to non-economic loss at 35 per cent of a most extreme case, i.e. $222,250.

It has been agreed between the plaintiff and the defendants that past out-of-pocket expenses amount to at least $46,741.65. The plaintiff’s total claim is based on HCF and Medicare history statements and amounts to $54,341.00. I have been provided with no information as to what amounts and what treatment the plaintiff received to make up the difference. In those circumstances, there being insufficient evidence before me, I award the plaintiff the agreed amount, i.e. $46,741.65.

There is support for continuing psychiatric treatment. I allow 10 psychiatric sessions at $325 per session, i.e. $3,250.00. There is no basis in the evidence for a claim for “exercise” nor has a basis been provided for occupational therapy. No basis has been provided for personal care costs in the event of another surgery, removal costs, the provision of a shower chair and Vital Call.

Since the plaintiff has been successful in her claim, she should have available money to regularly attend her doctors in respect of both her right hip and back pain. The plaintiff has just turned 61 and accordingly has a life expectancy of 27 years (multiplier 783.0), I allow the plaintiff $30 per week for medical expenses, i.e. $23,490.00. I am not prepared to further reduce that amount to have regard for vicissitudes since the life tables have already made such an adjustment.

The unchallenged evidence of the plaintiff is that she has been able to manage all of her domestic activities, albeit more slowly than before the fall and with difficulty. Accordingly, the only claim put forward by the plaintiff in this category relates to services provided by Peter. Those services can be broken into two periods. The first followed the occurrence of the injury in August 2013 and the second covered the period following the total hip replacement when the plaintiff moved in with Peter so that he could care for her.

The problem with the first period is that we do not know over what length of time Peter provided assistance, we do not know anything about the assistance which he provided, other than when the plaintiff was living in a granny flat in Moruya, he would visit and bring groceries for her and take her washing back to his place. He used to visit the plaintiff a couple of times a week.

The only other evidence which appears to relate to this first period is as follows:

That evidence is not sufficient to make out the six month/six hour test required by the CLA. Apart from the reference to “groceries”, “laundry”, “cooking, cleaning, washing and shopping”, we have no information as to what else Peter did. Most importantly, however, we have no evidence as to the period of time over which this assistance was provided and for how long each day. Accordingly, the claim in respect of assistance provided by Peter following the August 2013 fall has not been made out.

More information is available concerning the second period, i.e. following the plaintiff’s discharge from hospital after the hip replacement surgery in August 2014. The plaintiff was discharged from the Nowra Private Hospital on 5 September 2014. The plaintiff had an adverse reaction to the anaesthetic and spent most of the first six weeks after discharge from hospital in bed. Peter performed all domestic tasks including cooking, cleaning, washing and assisting the plaintiff with personal care during that period. Because the plaintiff was unable to afford her rental property in Moruya, she moved to Central Tilba to reside with Peter. It was during this period that the plaintiff chose to resign from the Council.

Apart from the plaintiff engaging in her own rehabilitation, walking and swimming, there is again no information as to what exactly Peter did for her and over what period of time. All that we know is that in August of 2015, the plaintiff went to Canberra and this marked the end of her relationship with Peter. On that state of the evidence, as with the first period, it is simply not possible to assess for how many hours or weeks Peter assisted the plaintiff, what assistance was provided over how many hours each day.

It follows that I can award no damages for past domestic assistance.

The defendants were successful in adducing evidence that the amount of care calculated by Ms Ravagnani was excessive because it was based on the maintenance of a three bedroom house as distinct from a small granny flat which is where the plaintiff is currently living. Since the plaintiff has chosen to reside in granny flat accommodation in the past, a reasonable basis exists for concluding that she will do so in the future.

The plaintiff’s evidence as to the difficulties she has experienced in looking after herself is consistent and persuasive. As Dr Selwyn Smith and Dr Lewin accepted, the plaintiff’s perception of pain and difficulties in looking after herself are genuine. This is particularly so after a day’s work in a demanding job which is also associated with pain.

I accept the plaintiff’s evidence about the amount of pain she has suffered in the past and continues to suffer when performing domestic tasks and looking after herself. In any event, there is no doubt (and I so find) that both psychiatrists accepted that she has a Pain Disorder and Adjustment Disorder which adversely affects her capacity to look after herself even though she continues to do so.

As Dr Lewin said (CB 406):

Dr Smith accepted that:

Not only did the psychiatrists accept that evidence as credible, Dr Bodel had no difficulty in accepting that the plaintiff’s back symptoms could have been at least triggered, or aggravated, by the fall. I accept that the plaintiff experiences pain and discomfort in her day to day life which limits her ability to conduct her activities of daily living in a fashion that she might otherwise have preferred. No evidence was adduced to the contrary.

In those circumstances, I find that it is likely that the plaintiff will avail herself of her success in this case by engaging professional assistance to help her in performing domestic duties. I would assess three hours per week as an appropriate expenditure by her, i.e. 3 hours pw at $52 per hour with a multiplier of 783, i.e. $122,148.00.

The parties have agreed as to the amount of economic loss to which the plaintiff is entitled should she establish that her injuries have caused a loss of earning capacity. The defendants, however, have not agreed that the plaintiff has such an entitlement. It was the defendants’ position that as a result of her presentation to Dr Davison in November 2014 and on subsequent occasions, the plaintiff has largely recovered from the effects of the fall and that there has been no loss of earning capacity on her part since that date.

The defendant relies upon the plaintiff’s evidence that in the two years leading up to trial, she had only taken two days off work. The defendants submitted that given the nature of the work which the plaintiff has been performing, which involved some heavy lifting, if she were genuinely suffering from physical problems relating to the fall which adversely affected her earning capacity, she would have taken far more time off work.

The defendants submitted that although the plaintiff asserts some difficulty in performing her current job and made similar complaints concerning the work at Wagga Wagga Airport, she has in fact been able to do this work over the last two years with virtually no time off. On that issue, the defendants relied upon the evidence of Drs Anthony Smith and Bodel to the effect that she was capable of performing her present work and would be able to continue in that work at least until she turned 67.

I have already indicated that I accept the plaintiff as a witness of truth. It follows from that that I accept the plaintiff genuinely suffers pain. There is a basis for that pain established both in the reports of Dr Bodel and in the reports of Dr Selwyn Smith and Dr Lewin, the psychiatrist. What emerges clearly from the plaintiff’s evidence and medical history is that she is a stoic person who has managed to look after herself, albeit not as well as she would like, and to maintain employment, despite pain. There is no issue that a comparison between her earnings since the fall and that of a comparable employee with the Council show a clear economic loss having been suffered by her over the years.

The report of Dr Bodel when he assessed the plaintiff on 29 April 2015 is instructive. At that time he said:

Under “Current Complaints” Dr Bodel recorded “This lady is still left with an ache and muscle soreness in the right hip and thigh”. He noted that she could drive an automatic vehicle and was able to do housework as long as she did it slowly. His conclusion was:

When Dr Bodel saw her in December of 2017, her physical presentation had deteriorated. She had developed low back pain, in addition to the symptoms she was experiencing in her right hip. Dr Bodel summarised the position as follows:

I have already referred to the likely explanation for the onset of the back pain, i.e. degenerative changes in the low back which were aggravated and rendered symptomatic by the fall. Before the total hip replacement, the plaintiff did not make any complaint of back pain because the back symptoms were largely masked by the severity of the right hip problems. As the problems in the right hip improved, the plaintiff became increasingly conscious of the low back problem. That was the explanation given by the plaintiff as to why she may not have complained about back pain at an early point in time and her complaints in that regard are confirmed by the results of the CT scan and the degenerative changes in her low back revealed by that investigation. Dr Bodel’s opinion shows that he fully accepted the plaintiff’s complaints and their reasonableness.

Importantly, when Dr Bodel was in conclave with Dr Anthony Smith and when giving his evidence at the trial, he was of the opinion that the plaintiff should not engage in work which involved heavy lifting. That is fully consistent with the plaintiff’s evidence. She has no problem checking in customers, it is only when she is required to move cases that she experiences difficulty. Her complaints in that regard have been consistent over the years.

Accordingly, for the reasons which I have set out above, i.e. my acceptance of the plaintiff, the explanation for the onset of back pain which I also accept, and the fact that such pain would limit the plaintiff’s employment, particularly at an airport where she is required from time to time to do heavy lifting, provides adequate support for the differential which the parties have agreed to between what the plaintiff would have earned had she remained in employment with the Eurobodalla Shire Council and what she has actually been able to earn over the years. I am satisfied that this difference adequately reflects the loss of earning capacity suffered by the plaintiff as a result of the fall. Accordingly, in line with the agreement between the parties, I find that the plaintiff is entitled to the following amounts for past economic loss:

The above figures produce an amount for past economic loss of $115,760. When allowance is made for past superannuation at 9.5% pa, the plaintiff has a further entitlement for past economic loss of $10,997. This gives the plaintiff a total entitlement to past loss of earning capacity of $126,757.

In relation to future economic loss, the parties have agreed that if the plaintiff is entitled to economic loss for the future, her loss is $170 per week. The plaintiff turns 67 in approximately 6 years. Using a multiplier of 271.4 and deducting 15% for vicissitudes produces a figure for future economic loss of $39,217. If one then makes an allowance for superannuation at 11.5% pa, the plaintiff has a further entitlement of $4,510. This provides a total for future economic loss of $43,727.

Accordingly, my assessment of the plaintiff’s entitlement to damages is:

Accordingly, the orders which I make are: