Jackson v KAH Australia Pty Ltd t/as Bayview Boulevard Sydney

1. [1]

   HER HONOUR: The plaintiff seeks damages for personal injuries sustained on 21 July 2011 when she slipped and fell in the foyer of the Bayview Boulevard Hotel, Sydney (“the hotel”) injuring her left foot. The plaintiff also seeks damages for a fall she had at her home on 7 January 2013. The plaintiff alleges that this fall and her ongoing problems were a direct result of the first injury to her left foot. The Civil Liability Act 2002 (NSW) governs these proceedings.

Witnesses and reports

1. [2]

   The plaintiff gave evidence and was cross examined at length. Her partner, John Kleeman also gave evidence and was cross examined. Tony Boscarello provided two statements dated 26 March 2013 and 16 September 2015. His statements were admitted without objection. Mr Burn, civil engineer provided an expert’s report on liability dated 10 September 2014. (Ex C). Orthopaedic surgeons Dr Peter Sharwood and Dr Peter Endrey-Walder prepared a joint report dated 16 February 2017 (Ex 6) and gave concurrent evidence. Dr Sharwood provided a report dated 11 November 2013. Dr Endrey-Walder provided two reports dated 31 March 2014 and 13 January 2017. Dr Trevor Lotz a psychiatrist provided two reports dated 13 May 2014 and 16 November 2016. Mrs Lee-Anne Wilson an occupational therapist provided two reports dated 30 May 2014 and 8 November 2016. Ms Stephanie Johnson provided a report dated 10 March 2015. Ms Wilson and Ms Johnson also provided a joint report dated 2 March 2017. Dr Shelley Keane, a clinical neuropsychologist provided a report dated 30 April 2015. Dr Hunt, a general practitioner provided a report dated 12 August 2011. Dr Nihal, an orthopaedic surgeon provided a report dated 12 August 2011. Dr Lesley Smith, a general practitioner provided a report dated 17 November 2011.

Background

1. [3]

   The plaintiff was born in December 1969 in Brisbane. She is currently 48 years old. She attended school at Craigslea High School. The plaintiff left school at the end of Year 11.

2. [4]

   In 1995, she undertook a 12 month course through the Australian Institute of Applied Science in aromatherapy. Aromatherapy is a holistic therapy involving the use of essential oils, plants, massage and reflexology. (T15.41-42). She obtained a certificate in massage. During that course, she undertook training in a range of subjects including anatomy and physiology. (Ex B).

3. [5]

   In 1997, the plaintiff commenced working for Foxtel. The plaintiff states she was the Gold Coast manager for Foxtel and the second in charge in Queensland. The plaintiff says that she was the one that brought Foxtel to the Gold Coast. (T16.10-15).

4. [6]

   When the plaintiff was about 19, she completed a real estate sales certificate. In about 2002, the plaintiff started her own real estate business, Hindsight Realty Pty Ltd. (T17.1-5). She organised the purchase of multiple properties so that developers could then proceed with their plans. Hindsight Realty has been dormant since 2011.

5. [7]

   After her first child was born in July 2004, the plaintiff ceased full time work. In December 2006, her second child was born. She says that she continued to receive an income from the Hindsight Realty for some years after she ceased working. The plaintiff says that her ex-partner and father of her children, had a similar business and she says that she assisted him from time to time. The plaintiff says that she earned her largest income in 2007. (Ex B).

6. [8]

   Prior to the accident on 21 July 2011, the plaintiff planned to commence her own business working from home. Apparently her long term plan was to develop land that she had previously purchased and build a retreat. She intended to practice alternative medicine, subsidised by her income from the property development business which she hoped to build up once her children were older.

7. [9]

   On 21 July 2011, while attending a neuro-linguistic course at the hotel, the plaintiff slipped on water in the hotel foyer injuring her left foot.

8. [10]

   On 7 January 2013, the plaintiff suffered a further injury. She says that when she got up off her bed to assist her four year old daughter in the bathroom, her left leg gave way due to numbness of her left foot and she fell injuring her head. She says that the numbness in her left foot is a result of the accident on 21 July 2011.

Prior injuries

1. [11]

   At the age of 13, the plaintiff was bucked off a race horse and fractured her right middle finger, dislocated her left shoulder and fractured her left arm. (Ex B, [16]).

2. [12]

   When the plaintiff was about 21, her boyfriend was killed in a motor vehicle accident. When the plaintiff was 28, a friend was killed in a plane crash. She says that she experienced a form of depression after these two events. (Ex B, [15]).

3. [13]

   For some years prior to the accident on 21 July 2011, the plaintiff suffered from neck pain and had some visual disturbances. (Ex B, [14]).

Credibility

1. [14]

   It is convenient that I now record my observations concerning the credibility of the plaintiff and her partner John Kleeman. The plaintiff’s credibility is relevant to my findings on both liability and damages. Mr Kleeman’s evidence is relevant to the issue of damages.

2. [15]

   The defendant submitted that the Court should find that the plaintiff lacked credibility and that her evidence was unreliable. I carefully observed the plaintiff give evidence and while she was cross examined at length. Overall, I have reached the conclusion that the plaintiff was tailoring her evidence, so as to bolster her claim for damages. I shall refer to a number of examples where the plaintiff gave unsatisfactory evidence. I have reluctantly come to the conclusion that her evidence was unreliable and unless corroborated by independent evidence (other than her current partner John Kleeman) I have approached her evidence with caution.

3. [16]

   Some examples of the plaintiff’s unsatisfactory evidence are as follows.

4. [17]

   I shall refer to some other examples of her unreliable evidence when it becomes relevant.

5. [18]

   Mr Kleeman is the plaintiff’s current partner. I also carefully observed him give evidence and during cross examination. I formed the opinion that his evidence was also crafted to portray the plaintiff as being very disabled. At times Mr Kleeman’s evidence was almost verbatim to the very odd evidence given by the plaintiff. As with the plaintiff, I will approach his evidence with caution when it is not corroborated by independent evidence.

6. [19]

   In 2014, Mr Kleeman met Ms Jackson at a charity event (this took place after both of the alleged accidents). They formed a relationship, and in January 2015 they began living together. Mr Kleeman says that the plaintiff has difficulties with her short term memory. His evidence is that she has no recollection of any day to day events. He claims the plaintiff has poor concentration, no absorption, poor retention and that everything has to be written down for her. (T170.37-49). Mr Kleeman stated that because of the plaintiff’s lack of concentration and memory loss or lack of memory of conversations, he would advise and assist her with business negotiations. (T171. 23-25). He stated that he advises and proofreads the plaintiff’s emails and then authorises her to send them. (T172.23-25).

7. [20]

   According to Mr Kleeman most emails prepared by the plaintiff require many changes, such as the way they are written. There are some examples of such emails later in this judgment. He gave evidence that if the plaintiff had purchased the Mount Burrell property, his role in the business would have been organising the marketing, helping with the financial side of things and collecting money. (T172.33-37). However, he did not intend to make any financial contributions towards the proposed purchase of the Mount Burrell property. He is currently receiving a Newstart allowance. (T182.42-48). He says that he is also the plaintiff’s carer.

8. [21]

   As to the plaintiff’s physical limitations, once again Mr Kleeman’s evidence was almost identical to the plaintiff’s. He gave evidence that the plaintiff would show him where to plant trees on the Mount Burrell property known as the Silk Pavilions. For convenience, I shall refer to the property as the “Mount Burrell property”. The Mount Burrell property accommodation consists of a three bedroom, three bathrooms house on a 100 acre property. It is award winning luxury accommodation located in the Tweed Valley on the North Coast of New South Wales. It also consists of a number of eco pavilions, pavilions and accommodation. It marketed as “glamping” and a bed and breakfast. (T95-96). The property already had established fruit trees and the plaintiff and Mr Kleeman only planted seedlings. (T99). Mr Kleeman says he would dig the hole and then the plaintiff would plant the seed, which was a very basic task. (T174.10-11). The plaintiff would come to the verandah and point to where Mr Kleeman needed to do things. His evidence is that because of the location of the property she would very rarely walk out onto the grounds. (T188.15-25). He would drive the plaintiff around the property. (T189). Mr Kleeman’s evidence is that he carries out all the physical work. This evidence is at odds with the emails sent by the plaintiff to the Owners of the Mount Burrell property referred to later in this judgment.

The first injury on 21 July 2011

1. [22]

   On 21 July 2011, the plaintiff was attending a neuro-linguistics course run by Quantum Change Seminars at the hotel. Her aim was to work as a neuro-linguistics learning practitioner in a Quit Smoking Franchise. Her evidence is that she had already purchased a franchise for approximately $20,000. (FFASP and Ex 6, p 97). However, there is no documentary evidence to support this assertion. The course ran for five days. The last day of the course was 21 July 2011. As a result of completing this course, I accept the plaintiff gained a NLP Master Practitioner Certificate.

2. [23]

   At about 1.30 pm on 21 July 2011, the plaintiff was in the company of other course attendees returning to the hotel after having lunch. It is common ground that it had been raining all day. At about 2.25 pm upon her return from lunch, the plaintiff entered from the side door and walked across the foyer of the hotel towards the lifts. As she was about to get into the lift closest to the concierge, she slipped and fell injuring her left foot. She was looking where she was going, but was unaware of the presence of water on the floor until she slipped. As she slipped and fell she became aware of extreme pain in her left foot/ankle area. She was assisted up from the floor by other patrons. The surface of the foyer floor where the plaintiff slipped is a hard glossy tiled surface. Three photographs of the foyer floor are shown in Ex A. The plaintiff’s uncontested evidence is that the flooring shown in Ex A is the same as what she fell on the day of the accident. After she fell she returned to the lecture room, but departed the course three hours early and took a plane back to her home on the Gold Coast.

3. [24]

   The plaintiff’s evidence is that there were no warning signs advising guests of the hotel that the floor was wet. Nor were there any ropes or any items to cordon off the foyer area that was wet. There were no containers for patrons to put their umbrellas into to prevent water being left on the foyer floor. She says that she did not see any anti-slip mats placed on the foyer floor nor in the area where she fell. (Ex B, [19] to [23] and [24] to [27]).

4. [25]

   Tony Boscarello’s statements dated 26 March 2013 and 16 September 2015 were admitted into evidence without objection. (Ex E). He resides in Western Australia. He corroborates the plaintiff’s evidence. He was also attending the seminar and was an eyewitness to the plaintiff’s fall. His evidence is that on the day of the accident at about 2.20 pm he, the plaintiff and a group from the course were coming back from lunch. As he was waiting for the lift, the plaintiff approached the lift and slipped over on the wet floor. He observed she landed very heavily on the floor and that the plaintiff’s foot was immediately impacted and that she was in a lot of pain. He and a couple of other people helped the plaintiff up and assisted her into the lift. Mr Boscarello stated that the plaintiff was unable to walk and was in a lot of pain and in shock. He and other guests tried to comfort her and help ease the pain she was in.

5. [26]

   Mr Boscarello’s evidence is that there were no signs in the hotel foyer saying “caution wet floor” even though it had been raining heavily and there was water on the foyer floor. (Ex E, Statement 26 March 2013). Tony Boscarello did not recall seeing any cleaners in the vicinity of the accident nor does he recall if there were any containers provided for wet umbrellas. He saw people walking into the hotel with umbrellas that were dripping water on to the floor. His evidence is that there was a big puddle of water in front of the lift and in the general vicinity. Relevantly, he noticed some people sliding on the wet floor; however they were able to gather themselves and not fall over completely. Mr Boscarello himself also slipped on the wet floor but was able to stop himself from falling completely. (Ex E, Statement 16 September 2015).

6. [27]

   Mr Nihal Jayasinghe’s statement dated 22 March 2012 was tendered over objection pursuant to s 67 of the Evidence Act 1995 (NSW). His statement is annexed to the affidavit of Tanya Harris-Roxas dated 8 March 2017. (Ex 9). Mr Jayasinghe was the front office manager at the hotel at the time of the plaintiff’s accident. He has not been able to be located. Hence, his evidence was not the subject of cross examination.

7. [28]

   On 22 July 2011 (the day after the plaintiff’s accident), Mr Jayasinghe confirmed that the plaintiff had telephoned him and reported the incident and her subsequent injuries. She advised him that immediately prior to the accident she had entered the downstairs foyer of the hotel from the side entrance, which leads to the neighbouring Westfield building. She told him that she then walked towards the rear of the foyer and as she approached the middle lift she slipped in some water that was on the tiled foyer floor. She reported to Mr Jayasinghe that it was raining at the time and the water may have been rain water from an umbrella or similar. The plaintiff reported that she landed heavily on her foot when she fell and was then assisted to her feet by other guests. The plaintiff later advised him that at the time of the accident she had been wearing normal shoes that did not have heels. (Ex 9, [4] and [5]).

8. [29]

   On being advised of the incident, Mr Jayasinghe says that he viewed the CCTV footage of the hotel foyer around the time of the plaintiff’s accident but the CCTV footage was inconclusive. Mr Jayasinghe deposed that during wet weather there were three wet floor signs that were placed around the foyer to warn guests of the potential of a slippery floor. He also stated that there was also an umbrella basket placed at the side entrance to the foyer for use by guests to store their wet umbrellas. He deposed that they [the hotel] were not required to put out wet weather mats or similar during wet weather as there were permanent mats located at both entrances that performed this task. (Ex 9, [10] and [11]).

9. [30]

   So far as a system of inspection was concerned, Mr Jayasinghe stated that the cleaner’s duties were to clean the ground floor foyer at 6.00 am and 11.00 am each day. Then “usually” the floor was cleaned on three other occasions, the times of which are not specified. There was no checklist to confirm whether any of these inspections actually took place. (Ex 9, Statement [12]-[15]).

10. [31]

    Mr Jayasinghe then outlined the system of work for wet weather that had been in place for 12 years prior to the plaintiff’s accident. He deposed that at the time of the plaintiff’s accident wet floor signs were definitely in place around the foyer although he does not specifically say where they were located. According to Mr Jayasinghe this signage had been in place since the previous day as it had also been raining heavily then. According to him, the plaintiff had ample opportunity to observe this and be aware of the potential for a slippery floor surface. He deposed that there had been no previous incidents which had occurred in a similar manner and that this indicated to him that in his opinion their system of work during wet weather was effective. (Ex 9, [16]).

11. [32]

    As Mr Jayasinghe was not able to be cross examined, particularly in relation to evidence that conflicted with his, I accept and prefer the plaintiff’s and Mr Boscarello’s evidence over that of Mr Jayasinghe. I find that it is difficult to accept Mr Jayasinghe’s evidence that no previous accidents had occurred in a similar manner during wet weather, when on this particular day, not only did the plaintiff slip on the wet floor near the lifts but so did Mr Boscarello and others guests. Also Mr Jayasinghe’s evidence concerning the presence of wet weather signs and an umbrella basket is at odds with that of the plaintiff and Mr Boscarello. Once again I prefer their evidence.

Expert evidence on liability

1. [33]

   The plaintiff relied upon the report of Mr Burn dated 10 September 2014 in relation to the issue of liability which was admitted without objection. (Ex C). The defendant did not rely upon any expert evidence. Mr Burn holds a Bachelor of Engineering (Civil), March 1980 University of Sydney, Master of Engineering Science, March 1987 University of Sydney, Diploma of Environmental Studies, May 1988 Macquarie University, Masters of Business Administration (Technology Management) October 1997 Deakin University/APESMA and a Graduate Certificate in Safety Science, UNSW, September 2013.

2. [34]

   Mr Burn recorded that in order to aid in the selection of appropriate surface materials for installation under various uses Standards Australian in conjunction with the CSRIO published “HB: 1999 An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials”. This handbook gives recommendations as to the minimum pedestrian surface classifications for various use location. Depending of the classification the minimum acceptable pendulum testing rating for the floor used would need to class “X” or better for wet or class “Z” or better for dry. For a surface to receive a class “X” classification the British pendulum Number (BPN) test results obtained would need to be within the range of 35 to 44. Mr Burn reported that the test he performed resulted in a BPN of less than 25. On this basis Mr Burn stated that the floor would be a class “Z” surface so would need to be maintained dry at all times to be safe. (Ex C, Report, p 5). The BPN wet test resulted in a number of less than 12 therefore indicating that the surface of the foyer floor of the hotel had, at the very least, a very high contribution to the risk of a patron slipping when the floor was wet. (Ex C, Report, p 14). I accept his evidence that there was at the very least a very high contribution to the risk of a patron slipping when the floor was wet.

3. [35]

   Mr Burn concluded that there were a number of ways that the plaintiff’s fall could have been prevented. They include firstly, placing an umbrella wrap machine near the entrances; secondly, putting additional rubber backed floor matting in the premises; or finally, having a regular system of routine inspections of the floor.

4. [36]

   As previously stated, Mr Jayasinghe’s view was that the hotel was not required to put out wet weather mats or similar during wet weather as there are permanent mats located at both entrances that perform this task. However, if mats were placed near the lifts Mr Burns says this would have alleviated the presence of water on the floor.

Liability - duty of care

1. [37]

   It is common ground that the defendant owed the plaintiff a duty of care. The duty of care owed by the defendant to the plaintiff was the duty owed by an occupier to an entrant that is, a duty to take reasonable care in the circumstances for their safety: see Australia Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479; Jones v Bartlett (2000) 205 CLR 166; Sakoua v Williams (2005) 64 NSWLR 588. However, occupiers of property are in general entitled to expect that users of the property will exercise reasonable care for their own safety: see RTA of NSW v Dederer (2007) 234 CLR 330 at [45]; Jackson v McDonald’s Australia Limited [2014] NSWCA 162; Patrick Stevedores Operations (No 2) Pty Limited v Hennessy [2015] NSWCA 253.

2. [38]

   I accept that the obligation cast upon an occupier of premises is to make them as safe as reasonable care and skill could possibly make them, it is only to exercise reasonable care in the circumstances.

3. [39]

   As stated previously, these proceedings are governed by the Civil Liability Act 2002 (NSW).

Sections 5B and 5C of the Civil Liability Act

1. [40]

   Sections 5B and 5C of the Civil Liability Act (“the Act”) are relevant. I will deal with them in turn.

2. [41]

   Section 5B reads:

3. [42]

   Section 5C reads:

4. [43]

   In Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 (“Endeavour Energy”), Basten JA stated at [29]:

5. [44]

   As previously discussed, it is common ground that the defendant owed a duty of care to hotel patrons and that includes the plaintiff.

6. [45]

   The next question to be determined is whether the risk was not insignificant. In Endeavour Energy, Basten JA noted at [32]:

7. [46]

   In Endeavour Energy, Basten JA at [33] explained the third question raised by s 5B of the Civil Liability Act as follows:

8. [47]

   And finally, in relation to breach of duty of care, the Court of Appeal in CSR Pty Ltd v Wren (1997) 44 NSWLR 463 at 487 referred to the well known passage from Wyong Shire Council v Shirt [1980] HCA 12 (at 47-48) where Mason J stated:

9. [48]

   The plaintiff submitted that this Court should make a finding that there was a quantity of water, or a puddle of water, as stated by Mr Boscarello (Ex E, Statement, 16 September 2015) that caused the plaintiff to slip and fall as she sought to enter the lift on the far right of the foyer in the hotel. I have already accepted Mr Boscarello’s evidence.

10. [49]

    The defendant made a number of submissions in order to establish that it has not been shown that it acted unreasonably or negligently, within ss 5B and 5C of the Act. I shall deal with them in turn.

11. [50]

    Firstly, the defendant submitted that the opinion of Mr Burn in connection with the co-efficiency of friction has self-evident limitations because his testing was performed three years after the plaintiff’s fall. According to the defendant, Mr Burn simply assumed that the foyer tiles in 2014 “were basically the same as the foyer tiles in use on 21 July 2011.” There was no attempt to relate the area tested [“between the concierge desk and nearest elevator”] and where the plaintiff described her fall. The defendant says that this evidence does not permit a finding that the results of the tests performed by Mr Burn indicated the co-efficiency of friction of the surface of the foyer floor in 2011. The plaintiff’s evidence, which I have accepted, is that the flooring in the foyer shown in the photographs (Ex A) is the same as that upon which she fell on the day of the accident. The surface of the foyer floor at the time of the accident was a cream coloured hard glossy tiled surface that is also shown in the photographs. Hence, I accept that it is more likely than not that it was the same floor surface in 2011 and 2014. That floor surface in the hotel foyer was one that had high traffic movements and at the very least the surface made a high contribution to the risk of hotel users potentially slipping when it was wet. This submission fails.

12. [51]

    Secondly, the defendant submitted that it is a factual issue, in relation to what reasonable steps it could have taken in response to the foreseeable risk of harm. The defendant submitted it needs to be assessed not only by reference to the expert evidence but also taking into account the long and incident free use of the floor surface in all kinds of weather conditions: see Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705.

13. [52]

    According to the defendant, the only evidence is that at the time the plaintiff fell, there was a quantity of water on the surface of the foyer floor. The defendant says that there is no evidence that there was any quantity of water on the surface of the foyer floor on any other occasion, and assuming there was, that it remained there for an unreasonable period of time. According to the defendant the evidence is that not only was the rain heavy on the day of the plaintiff’s fall, but also the day prior, and the plaintiff had crossed the foyer floor many times during the course of each day. The plaintiff’s evidence was that she found the floor surface to be safe underfoot and again notwithstanding the heavy rain on the day of, and day prior to the fall, the plaintiff did not observe there to be any water on the floor surface. (T153- T154). The defendant submitted that even if the Court were to find that the foyer floor was potentially slippery to users when wet, the incident free use of the floor surface coupled with the extremely high traffic movements, establishes that the risk of slipping was, in practical terms, very low: see Sakoua v Williams (2005) 64 NSWLR 588 at [30]; Cruise Group Pty Limited v Fullard [2005] NSWCA 161 at [15]; and s 5B(2)(a) of the Act.

14. [53]

    I disagree with this. To my mind there is compelling evidence that the floor near the lifts was extremely slippery because at the time the plaintiff slipped and fell other guests who were waiting near the lifts also slipped on the floor but regained their balance without falling. It is my view that contrary to the defendant’s assertions the risk of hotel guests slipping and falling on the hard glossy tiled foyer floor when wet in the location of the lifts was low, is incorrect. In fact the risk was high. Further, as Mr Jayasinghe was unable to be cross examined I prefer and accept the plaintiff and Mr Boscarello’s evidence on this topic.

15. [54]

    Thirdly, the defendant submitted that the system in place dealing with water on the hotel foyer has not been shown to be unreasonable. Senior counsel for the defendant says that the prior incident free use of the hotel foyer demonstrated that a reasonable system was in place. According to Mr Jayasinghe that system involved (a) permanent mats placed at the entrance to each door; (b) an umbrella basket at the side entrance; and (c) routine cleaning and inspection of the hotel foyer as well as the cleaner or concierge putting out signs. This system had been in place for 12 years and according to Mr Jayasinghe, the system had worked well given the absence of any previous incidents. (Ex 9, [11]-[12]).

16. [55]

    So far as inspections are concerned, the plaintiff submitted that it appeared that three inspections covered the time between 11.00 am to 6.00 am the following morning. The inspections took place at roughly six hour intervals. The last rostered clean was at 11.00 am. The plaintiff fell at 2.25 pm. In circumstances where this was a highly glossy floor in the foyer of a busy hotel, the plaintiff submitted that one would have expected a significantly better system of inspection and cleaning than that which was provided.

17. [56]

    It is difficult to accept any of Mr Jayasinghe’s evidence on this topic as something appears to have gone seriously array at the time the plaintiff and other hotel guests approached the lifts in the hotel foyer. A number of guests had slipped on the wet tiled surface in the foyer at the same time. As stated earlier, Mr Jayasinghe was not able to be cross examined, so his evidence could not be tested. As I have said, I prefer the plaintiff’s and Mr Boscarello’s evidence.

18. [57]

    In my view, the likelihood of guests such as the plaintiff slipping and falling on the wet, glossy floor surface in the high traffic foyer area of the hotel, was high. I am also of the view that the risk of serious injury to hotel users slipping and falling on the foyer floor of the hotel was foreseeable and not insignificant.

19. [58]

    The next issue to be determined is what precautions a reasonable person would have taken in these circumstances. Overall, on this topic, the defendant submitted that alternate systems advocated by Mr Burn have not been shown to be reasonable because they are presumably based upon the conclusions of the testing he conducted in 2014. According to the defendant, the logic of this case involves a number of errors. The first concerns umbrella machines. This involves hindsight reasoning with attention only to this incident. The second is that it focuses exclusively upon the plaintiff’s accident and the particular risk at a specific location: see Vairy v Wyong Shire Council (2005) 223 CLR 422, at 461-462 per Hayne J.

20. [59]

    In relation to umbrella machines (as opposed to umbrella baskets) being placed at the side of the entrance of the hotel foyer, the defendant pointed to what he says is a shortcoming of Mr Burn’s report. I accept that Mr Burn does not say that the use of such machines was common or usual practice in 2011. According to the defendant, the suggestion can only be understood as based on hindsight reasoning to work out preventability: see Neindorf v Junkovic (2005) 222 ALR 631, at 361-362 per Hayne J. I also agree with the defendant’s submission that even if umbrella machines were in use in 2011, it is difficult to say whether guests with umbrellas would have used the umbrella machines, particularly when they were journeying to the lifts in order to travel to another floor. While it may have lessened the risk of harm, it is not necessarily true that the umbrella machine would have minimised or removed the risk of harm. Therefore it is my view that a reasonable person would not have taken this precaution.

21. [60]

    Secondly, the defendant submitted that in relation to a management regime to deal with inspecting the foyer floor, the evidence is that there was such a system. Mr Burn did not comment upon that system or its adequacy. According to the defendant, no sensible criticism can be leveled at it, particularly bearing in mind the incident free use of the floor. In any event, in connection with causation, Mr Burn says nothing about frequency of any such system of inspection. All that is said is that the foyer floor should be “routinely inspected at regular intervals, more frequently in peak use times.” (Ex C, p 8). I agree that Mr Burn did not address the management regime.

22. [61]

    However, I disagree with the defendant’s submissions for two reasons. The first is that I do not accept Mr Jayasinghe’s evidence on this topic of the routine inspections. The second is that while hotel guests with umbrellas were waiting for the lift to take them to another floor in the hotel, water would drip from their umbrellas on to the foyer floor causing it to become slippery. Even if I were to accept Mr Jayasinghe’s outline of the management regime (which I do not) during the period of wet weather, it seems that it was not adequate. It was raining and the hotel had high traffic. If the last routine inspections took place at 11.00 am and the plaintiff fell at 2.25 pm, this was not adequate as it was during this peak period.

23. [62]

    Finally, Mr Jayasinghe stated that the hotel was not required to put out wet weather mats or similar during wet weather as there were permanent mats located at both entrances that performed this tasks. This is not a reasonable precaution. While this may be his view, I do not agree with it. To minimise or remove the risk of harm in these circumstances something more is required.

24. [63]

    Mr Burn expressed the view that when it was raining and the foyer floor was wet, the defendant should have placed additional rubber backed floor matting in places where people with umbrellas and wet weather gear congregated at the lifts.

25. [64]

    The defendant submitted that this view should not be accepted. However, it is more likely that the placing of rubber backed floor matting in this area would have minimised or removed the high risk of hotel patrons, including the plaintiff, slipping or falling on water near the lifts and suffering serious injury. The burden of the defendant doing this is not an onerous one. This, in my view, is a precaution that a reasonable person in the defendant’s position should have taken.

26. [65]

    For these reasons ss 5B and 5C of the Act have been satisfied.

27. [66]

    I will now consider causation.

Causation - s 5D of the Act

1. [67]

   To establish causation, the plaintiff is required to prove on the balance of probabilities that had the defendant taken the steps identified, the injury to the plaintiff would not have occurred or would have been avoided. No submissions were made on this topic.

2. [68]

   For reasons set out earlier in this judgment, I am satisfied that the negligence was a necessary condition of the occurrence of harm (factual causation) and it is appropriate for the scope of the defendant’s liability to extend to the harm so caused (scope of liability). Section 5D of the Act is also satisfied.

3. [69]

   In summary the defendant has breached its duty of care owed to the plaintiff and is negligent. That negligence caused the plaintiff’s injury to her left foot.

Contributory negligence

1. [70]

   No claim is made by the defendant in relation to contributory negligence.

Medical treatment and evidence after the first accident

1. [71]

   On 22 July 2011, the day after the accident, the plaintiff consulted her general practitioner Dr Lesley Smith at the Bundall Medical Centre. The general practitioner’s clinical notes record “a tender mid foot with no swelling.” On 12 August 2011, the plaintiff consulted Dr Andrew Hunt a general practitioner also at the Bundall Medical Centre who referred the plaintiff to an orthopaedic surgeon Dr Aneel Nihal. (Ex D, Tab – Treating, pp 17 and 21).

2. [72]

   In his report dated 12 August 2011, Dr Nihal reported that he had reviewed the x-ray and MRI and that the MRI revealed that the plaintiff had sustained an undisplaced fracture of the plantar aspect of the medial cuneiform, lateral cuneiform cuboid associated with severe bone bruising and increased signal changes on T2 images. Dr Nihal noted that these changes were consistent with severe bone bruising, bone marrow oedema and a small fracture on the plantar aspect. On examination he recorded that the plaintiff was tender over the cuboid and midfoot bones but had good range of ankle and subtalar joint motion but was non tender over the calcaneum or on talus or on metatarsal done. (Ex D, Tab – Treating, pp 4-5).

3. [73]

   On 9 September 2011, 21 October 2011 and 30 November 2011, the plaintiff was reviewed by Dr Nihal. On 9 September 2011, Dr Nihal reported that the plaintiff’s foot was better. He suggested that she could start weight bearing and physiotherapy was arranged. (Ex D, Report 9 September 2011, p 9). At the plaintiff’s consultation on 21 October 2011, Dr Nihal again reported that her foot was better. On 30 November 2011, Dr Nihal commented that her progress was satisfactory and that the recent x-ray revealed good alignment. He noted that at this time the plaintiff was walking without a moon boot. Dr Nihal recommended that the plaintiff arrange an appointment for a review in two months time should she have any problems. The plaintiff did not make another appointment. (Ex D, Tab –Treating, p 9).

4. [74]

   The plaintiff’s evidence is that she did not recall complaining to Dr Nihal about numbness in her left foot. This is consistent with Dr Nihal’s notes and reports.

5. [75]

   On 14 October 2011, 18 October 2011, 25 October 2011, 1 November 2011 and 23 November 2011 the plaintiff attended Mr Scott Clark a physiotherapist. (Ex D, Tab – Treating, pp 39-41).

6. [76]

   Like Dr Nihal, Mr Cook’s clinical notes do not make any reference to the plaintiff experiencing numbness in her left foot. Mr Cook’s clinical notes dated 14 October 2011, record that the plaintiff felt her foot had started to feel better in the last two to three weeks. Mr Cook also noted that the plaintiff found it difficult to sleep due to the weight of the blanket on her foot during winter. On 25 October 2011, Mr Cook recorded that the plaintiff was able to weight bear more with her foot. On 1 November 2011, his clinical notes record that the plaintiff no longer used crutches and could walk with a moon boot. (Ex D, Tab – Treating, p 39).

7. [77]

   The plaintiff gave evidence that during the course of Mr Cook’s treatment of her left foot she did not notice any improvement whatsoever and as it was pointless she stopped going to see him. (T34.9-11). The contents of Mr Cook’s clinical notes are at odds with the plaintiff’s evidence. In the extract of the transcript below the plaintiff changed her evidence and agreed that she was progressing well when she saw Mr Cook on 23 November 2011.

8. [78]

   In cross examination the plaintiff gave the following evidence (T33-T36):

9. [79]

   The plaintiff says that once she was no longer using the crutches or the moonboot, she noticed that she was unstable when walking on her left foot and had a number of falls and near falls. She also says that she was aware of pins and needles in her left foot and continued to have pain in her left foot. She took medication as required. (Ex B [30]).

10. [80]

    Between September 2011 and 23 November 2011, the plaintiff did not mention the presence of pins and needles in her left foot to either her treating orthopaedic surgeons or her treating physiotherapist but as I understand her evidence, she experienced pins and needles in her left foot once she was no longer using crutches and that occurred after 23 November 2011.

Medico legal orthopaedic opinions

1. [81]

   Dr Endrey-Walder an orthopedic surgeon, was retained by the plaintiff. Dr Sharwood an orthopedic surgeon was retained by the defendant. Dr Sharwood prepared a report dated 11 November 2013. (Ex 6, Tab 1). Dr Endrey-Walder prepared two reports dated 31 March 2014 and 13 January 2017 (Ex D, Tab - Medico-legal, pp 1-12).

2. [82]

   Both doctors prepared a joint report dated 16 February 2017 (Ex 6, Tab 8) and gave conclave evidence. Both doctors agree that the plaintiff:

   1. (1)

      sustained undisplaced fractures of the medial and lateral cuneiform bones and the cuboid bone on the left foot that have healed;

   2. (2)

      that her capacity to work as a result of her fall on 21 July 2011 was a temporary incapacity that lasted for the period she was unable to walk unaided; and

   3. (3)

      that as a result of the accident on 21 July 2011 the plaintiff will have difficulty with prolonged standing, squatting, walking on steps or uneven ground.

3. [83]

   I accept this evidence and I will refer to it again later in this judgment.

Period between first accident and second accident

1. [84]

   In 2012, the plaintiff says that because of her inability to perform housework and look after her children properly, problems arose in her marriage. The plaintiff says that she and her daughters experienced domestic violence. In 2012, the plaintiff and her partner separated. The plaintiff and her children moved into rented premises. She says that while on crutches, after her left foot injury but prior to her head injury, she was working in her home office when she fell over the filing cabinet drawer. She says that she fell over several times due to her left foot injury but prior to her head injury because of the numbness in her left foot leading to a loss of balance. Around about this time, the plaintiff says she started using a walking stick to maintain her balance as she continued to fall forward. The plaintiff says that she continued to experience pain and numbness in her left foot.

2. [85]

   Prior to the first accident, the plaintiff says that she employed a cleaner for two hours per week. After the first accident, family members and her friend Samantha Rashad provided domestic assistance. Ms Rashad did not provide a statement. Hence, she did not give evidence and nor was she the subject of cross examination. Ms Rashad helped about one day per week making the beds, cleaning the bathrooms, bedrooms, kitchen, hanging out the washing, vacuuming and mopping the floors. The plaintiff says that at this time she could no longer afford a cleaner.

3. [86]

   Throughout this period between the first and second accident, the plaintiff says she was still feeling unsteady on her left foot and was experiencing pins and needles. She did not seek treatment for these complaints as she did not know if there was any treatment that would help. Also during this time, the plaintiff says that she became depressed because of the chronic pain and the breakup of her relationship. She was prescribed anti-depressant medication. (Ex B [31]-[33]).

The second accident – 7 January 2013

1. [87]

   The plaintiff gave evidence that after the first accident, she had problems moving her left foot after she had been lying down. Normally she says that when she wanted to get out of bed, she would move her foot to overcome any numbness or instability problems. On 7 January 2013 at about 10.00 am, her youngest daughter called out from the bathroom. The plaintiff says that before she got off the bed she did not undertake the “wriggling” exercise that she would normally undertake but simply got out of bed to attend to her daughter who was on the toilet.

2. [88]

   The plaintiff says that when she got off the bed her left foot had pins and needles and a numb sensation that caused her to fall. She says that she fractured her skull. The plaintiff gave evidence that she did not fall down steps (as alleged in her first statement of claim) and explained that this was a misunderstanding between her lawyers and her version of events which was given by way of telephone conference. She says that she fell in her bedroom that had tiles on the floor and a wide clear walkway through a large wardrobe which led to the bathroom. The plaintiff says that she does not remember what happened, but understands that her children found her. She believes that she lay unconscious for about 10 minutes and was positioned about two metres from the bed in the tiled walkway. She understands that she was on her back with her head at the bathroom door and her feet facing towards the bed.

3. [89]

   Later her ex-partner attended her home, called an after-hours doctor and took the children with him. The plaintiff says that the doctor gave her some injections to stop the vomiting and at this time she was aware of severe headaches, blurred vision and pain when she moved her head. (Ex B [35]).

4. [90]

   On 9 January 2013, the plaintiff attended Bundall Medical Centre. She was seen by Dr Dallys McCombe in relation to the fall and her head injury. The clinical notes record a different explanation for the fall and states:

5. [91]

   On 10 January 2013, the plaintiff was admitted to the emergency ward of Pindara hospital. While she has very little memory of what occurred, she was aware that she was admitted to hospital at about 6.00 am although the hospital records state that the plaintiff was admitted at 21.05.

6. [92]

   The nursing clinical notes of Pindara hospital at 21.05 record (Ex 10, Tab 5, p 42):

7. [93]

   At 22.30 pm the clinical notes record (Ex 10, Tab 5, p 43):

8. [94]

   I accept that the history the plaintiff provided two days after the fall made no mention of the fall being caused by problems with her left foot. As she suffered a period of unconsciousness I do not place much weight on the fact that she did not mention it. The plaintiff conceded this when she was cross examined. (T59.42-45). The plaintiff told the doctors about her fall and that she had ongoing dizziness and headaches. The hospital organised various investigations including an MRI of her brain. On 11 January 2013, the plaintiff was discharged.

9. [95]

   Contrary to the plaintiff’s assertions, the results of the MRI scan did not reveal that she had a fractured skull. She says that she had headaches, intermittent confusion and was forgetting names. Eventually the vomiting stopped and she was given Panadol and Endone for pain for about three months. (Ex B [38]).

10. [96]

    On 15 January 2015, the plaintiff consulted Dr Lesley Smith at the Bundall Medical Centre. She gave evidence that she did not recall attending the Bundall Medical Centre on that day but it was possible. Nor did she recall discussing the results of her MRI scan with Dr Smith. (T152.21-50; T153.1-3).

11. [97]

    On or about 5 February 2013, the plaintiff says that she was treated for fluid leaking from her right ear. She attended her brother-in-law Dr Rob Pitt and he ordered some antibiotics and a repeat MRI. She was also prescribed Xanax for her depression and anxiety. (Ex B [39]). Her brother-in-law did not provide a statement nor did he give evidence.

12. [98]

    On 8 April 2013, the plaintiff says that she had a further MRI scan of her brain. She says that she was still aware of twitching while she slept which would wake her up.

13. [99]

    For the remainder of 2013 and into the first part of 2014, the plaintiff says that she was very stressed and depressed as she was about to be thrown out of her rental accommodation at the Mount Burrell property. Her ex-partner would not let her or the children live in the family home. She commenced taking Zoloft. The plaintiff says that she still required a lot of assistance as she was not coping from a mental or physical perspective. (Ex B [40]-[42]).

14. [100]

    The plaintiff referred to two further falls she says she had but has not specifically claimed damages in the statement of claim for them. She says that they occurred on 16 September 2015 and 2 November 2015.

Jones v Dunkel inferences?

1. [101]

   On 30 April 2015, the plaintiff was seen by Dr Campbell a neurosurgeon at the request of the solicitors for the defendant. This report has not been served.

2. [102]

   Senior counsel for the plaintiff submitted the most likely reason why Dr Campbell’s report has not been served is because it deals with the issue of the relationship between the first and second falls. According to the plaintiff there is a serious Jones v Dunkel (1959) 101 CLR 298 issue raised by the non service of that report. The plaintiff submitted that the report of Dr Campbell clearly was not going to assist the defendant’s case that the second fall was unrelated to the first fall. Further, that Dr Campbell may well have dealt with the issue of proprioception in relation to the plaintiff’s ability to maintain balance as a result of her left foot injury.

3. [103]

   Senior counsel for the defendant submitted that if the report went only to the second issue there would be little point in not serving it. Dr Lee, the psychiatrist retained on behalf of the defendant, concedes that the plaintiff has ongoing problems as a result of an acquired brain injury. The defendant submitted that any opinion of Dr Campbell would be unlikely to make things worse for the defendant in that regard.

4. [104]

   In Fabre v Arenales (1992) 27 NSWLR 437, Mahoney JA (with whom Priestly and Sheller JJA agreed) at 449 stated:

5. [105]

   This proposition arises from Jones v Dunkel at 320, per Windeyer J.

6. [106]

   The defendant served orthopedic, psychiatric and neuropsychological evidence. The medico legal orthopedic specialists agreed as to the plaintiff’s injuries and disabilities that arose from the first accident but they disagreed about the role of the sural nerve in the second accident. The neuropsychologists agreed as to the reasons why the plaintiff was unable to work after the second accident but that those reasons were unrelated to that accident. It is my view that Dr Campbell’s report would probably not have added anything. In these circumstances, I do not draw a Jones v Dunkel inference.

7. [107]

   While I am referring to the topic of Jones v Dunkel inferences, senior counsel for the plaintiff in opening submissions stated that he had been informed by letter by the defendant’s instructing solicitor that the plaintiff ex-partner was to be called to give evidence. (T5.9-11). He did not give evidence. The plaintiff and her ex-partner are involved in highly contested custody proceedings. When the second accident occurred he did not reside with the plaintiff but turned up some hours later to take their children. He did not witness the alleged fall. Hence, he could not shed light upon what occurred so I do not draw a Jones v Dunkel inference.

8. [108]

   On 7 November 2013, the plaintiff was examined by Dr Peter Sharwood. The plaintiff told Dr Sharwood that in January 2013 she had a fall at home and sustained a head injury. She believed this fall was due to the numbness of her left foot. She told Dr Sharwood that she still had ongoing symptoms related to her left foot. (Ex 6, Tab 1, p 2).

9. [109]

   On 31 March 2014, the plaintiff was examined by Dr Endrey-Walder. She complained that:

10. [110]

    The plaintiff also told Dr Endrey-Walder that she believed her fall at home which cause the head injury was on account of her occasionally being unable to fully feel her left foot on the ground. (Ex D, Tab - Medico legal, p 4).

11. [111]

    On 13 January 2017, the plaintiff was again examined by Dr Endrey-Walder. She complained of numbness and loss of balance which was a result the injury to her left foot. (Ex D, Tab – Medico Legal, p 9).

12. [112]

    While Dr Endrey-Walder and Dr Sharwood largely agree in relation to the plaintiff’s injury to her left foot, disability and capacity for work in relation to the 21 July 2011 accident, they disagree as to the cause of the second fall on 7 January 2013. While the fractures were undisplaced, both Dr Sharwood and Dr Endrey-Walder’s opinion is that the factures have healed.

13. [113]

    The main area in dispute is the role of the sural nerve. Dr Sharwood’s opinion is that any supposed sural nerve injury would not provide a medical explanation for collapse that occurred on 7 January 2013. Dr Sharwood’s evidence was to the following effect:

14. [114]

    Both doctors agreed that they have not seen a sural nerve injury in connection with undisplaced fractures. Dr Sharwood had not seen this in 40 years of clinical practice and nor had Dr Endrey-Walder. (T227.1-20).

15. [115]

    There was no clinical evidence of this kind of injury when the plaintiff was examined either by Dr Sharwood or Dr Endrey-Walder (T220.40-44) and no evidence of neurological deficit. (T221.25-28).

16. [116]

    In terms of the impact such an injury might have on the ability of a person to stand and walk, the sural nerve is sensory and on the top of the foot and when a person stands on their foot they rely on the sensation of the sole of the foot not the top. (T221-T223).

17. [117]

    While Dr Endrey-Walder was unable to give the precise reason for the fall in January 2013 he says that “given her long term symptom of incomplete sensation, a sense of numbness in the lateral third of the left foot, it may very well be that getting up off the bed she fell because the foot had let her down.” (Ex D, report 31 March 2014, p 6). His opinion is reaffirmed in his second report dated 13 January 2017 but these opinions are based on the plaintiff’s history she gave to them. Dr Endrey-Walder also gave evidence that the plaintiff may have suffered aggravation of early arthritic changes in her foot when she had the fall on 21 July 2011, making those changes symptomatic. (T229).

18. [118]

    As I have recorded, the sural nerve is located on the very top edge of the foot, past the bones of the small toe. (T219.35-37). Dr Endrey-Walder is of the opinion that the rolling of the foot caused a traction injury to the sural nerve. (T227.23-27). Dr Endrey-Walder explained that the residual numbness lateral aspect of the plaintiff’s left foot could have caused instability causing her to fall. (Ex 6, Tab 8, p 171). He further explained that the nerve damage is not due to the fracture, but rather suggested that the nerve damage was due to the injury which is a traction injury, a soft tissue injury, quite apart from the fracture of the small bones. (T225.21-24). Dr Sharwood agreed, numbness over the lateral part of the foot can be caused by a traction injury generally.

Chronic pain

1. [119]

   In their joint report, both doctors were of the opinion that the plaintiff suffers from chronic pain in her left foot. (Ex 6, Tab 8, p 171). During their conclave evidence Dr Sharwood clarified that chronic pain cannot be described as a diagnostic test as it is subjective reporting by the patient and it cannot be determined as an impairment. Dr Endrey-Walder agreed with this statement. Dr Endrey-Walder agrees with Dr Sharwood but added that the plaintiff has sensory changes and suffers from psychiatric conditions. Once again, the doctors in forming their opinions relied upon the plaintiff’s history. Due to the plaintiff’s unreliability in giving evidence, I do not accept that the plaintiff suffers from chronic pain. However, I do accept that after she had the first injury she suffered chronic pain for a while and then some further pain while she remained on crutches.

Plaintiff’s submissions

1. [120]

   According to senior counsel for the plaintiff, the most obvious reason why the plaintiff fell in January 2013 was because she was having problems with her left foot as a result of the injuries that she sustained in July 2011.

2. [121]

   The plaintiff submitted that a combination of any or all of the opined problems in her left foot, being the three fractures, soft tissue injury, arthritic changes and sural nerve damage could easily explain, and in Dr Endrey-Walder’s opinion do explain, why the plaintiff had ongoing problems with her left foot at the time of the second fall.

3. [122]

   Senior counsel for the defendant submitted that the Court should find that the plaintiff’s fall on 7 January 2013 was not medically or factually related to the injuries that the plaintiff suffered in the July 2011 fall.

4. [123]

   Senior counsel for the plaintiff made lengthy submissions to explain the difficulties in the plaintiff’s evidence. He referred to Mason v Demasi [2012] NSWCA 210 where the Court of Appeal has cautioned against placing too much reliance upon such histories, they having been taken for purposes other than the forensic dissection undertaken in a Court. According to senior counsel for the plaintiff, the failure of medical records to record complaints made by the plaintiff of numbness in her left foot should not be seen by the Court as persuasive.

5. [124]

   The plaintiff’s evidence is that she did not slip but rather fell as a result of the numbness in her left foot. (T56.1). The plaintiff does not recall attending the Bundall Medical Centre on 9 January 2013. Her only recollection is attending Pindara hospital on 10 January 2013. (T52-T56). Those medical notes (two days after the fall) record that the plaintiff tripped and fell in the bathroom.

6. [125]

   Senior counsel for the plaintiff submitted the Court should place little weight on the doctor’s note recording that the plaintiff slipped and fell over hitting her head rather than her foot giving way rather than her foot giving way and falling over and hitting her head.

7. [126]

   As previously stated, the Pindara clinical notes record that on 10 January 2013 at 21:05 the plaintiff presented with (Ex 10, Tab 5, p 42):

8. [127]

   According to senior counsel for the plaintiff the fact that the entry is preceded by a question mark is significant and no weight should be placed on the reference to her having tripped and fallen. There is an entry recording that the plaintiff presented complaining of headaches and dizziness from a fall and head injury four days ago associated with loss of consciousness. (Ex 10, Tab 5, p 46). Hence, senior counsel for the plaintiff submitted that little weight should be placed on the fact that the plaintiff made no mention of her left foot going numb or giving way because the plaintiff did not attend Pindara hospital for problems with her foot she was there because of the headaches and dizziness following a fall.

9. [128]

   The plaintiff was cross examined about histories given to doctors as to her recollection as to what occurred. She agreed that she told Dr Endrey-Walder that she got up and that was the last thing she remembered. She agreed she did not tell him that she had any problems with her left foot giving way. (T61.3-26). However, the plaintiff did say (Ex D, Dr Endrey-Walder medico-legal report, 13 January 2017) that she gets numbness on the top and lateral side of the foot.

10. [129]

    On 8 January 2013, the day after the fall, the plaintiff saw her acupuncturist, Mr Deare and noted that she had been unstable on her feet. Senior counsel for the plaintiff says that this was hardly a statement that was likely to have been made unless that was what had occurred to her on the day before.

11. [130]

    Overall, senior counsel for the plaintiff submitted that plaintiff was obviously struggling to do her best to answer questions in relation to matters that occurred some years ago and that clearly, some of the answers she gave were due not understanding the question. According to the plaintiff an example of this was in cross examination when she was asked the following questions (T63.15-21):

12. [131]

    However, the plaintiff had mentioned that she was unstable on her feet when attending Dr Endrey-Walder. (Ex D, Medico Legal Tab, Report 13 January 2017, p 8).

Defendant’s submissions

1. [132]

   Senior counsel for the defendant submitted that putting to one side the plaintiff’s credibility and reliability, there are two issues of fact need to be resolved by the Court. The first is a medical question. Did the plaintiff’s injury to her left foot account for a possible numbness or loss of sensation and whether those symptoms caused the plaintiff to lose her balance and fall on 7 January 2013? The second is a factual question. Was the fall on 7 January 2013 a result of the consequence of those symptoms?

2. [133]

   Further he submitted that in light of the objective material and logic of events, the inherent probabilities and admissions made by the plaintiff, that the Court should conclude that the fall did not arise as a consequence of any problem with the plaintiff’s left foot. Senior counsel for the defendant says that in light of the plaintiff’s evidence, the medical records and hospital notes of Pindara hospital there can be no question as to the accuracy of what is recorded.

3. [134]

   The defendant submitted that to the extent that the plaintiff in the context of the ‘medical’ evidence in the proceedings, tried to relate the fall to problems with her foot, the plaintiff in fact had no memory of why she fell. In the Functional and Vocational Capability Report of John Raue and Gillian Stewart, the plaintiff accepted that she told Mr Raue that she “could not recall what happened.” (Ex 6, Tab 6, p 152; T66.20).

4. [135]

   During cross examination the plaintiff stated:

5. [136]

   I accept that during 2013 and 2014, the plaintiff attended the Bundall Medical Centre. The medical records for this period do not record the plaintiff attending the medical centre for her left foot.

6. [137]

   Senior counsel for the defendant submitted that the reports of Dr Sharwood and Dr Endrey-Walder do not report any objective clinical evidence that there was some sural nerve injury to the plaintiff’s left foot and nor does the report of the Vocational Capacity Centre by John Raue and Gillian Stewart. (Ex 6, Tab 6).

7. [138]

   The defendant drew this Court’s attention to an affidavit sworn by the plaintiff on 11 June 2015 in support of family court proceedings involving the custody of her children and whether she was physically and mentally capable of looking after her children. While that affidavit does make mention of her fall in January 2013 there is no mention of her having any problems with her left foot. (Ex 5). Senior counsel for the defendant submitted that in cross examination in these proceedings the plaintiff was fully aware that when she swore that affidavit of the importance of honestly explaining in her affidavit the true state of her health. (T67-T68; T163.38-50). However, I do not think that her failure to refer to the fall was significant here. I do not place any weight on this submission.

8. [139]

   Finally, senior counsel for the defendant submitted that there is no evidence to support a finding that the injury to the plaintiff’s left foot was attributable to her fall on 7 January 2013.

Consideration

1. [140]

   On 7 January 2013, the plaintiff fell and suffered headaches and dizziness. The histories given to Pindara hospital refer to a trip and fall, but not to her left foot giving way. It is possible that the focus of the hospital note taking was on the plaintiff’s injuries rather than a fuller explanation of her left foot giving way. So far as the orthopedic evidence is concerned, on the balance of probabilities, I accept and prefer the opinion of Dr Sharwood over that of Dr Endrey-Walder for these reasons.

2. [141]

   The fractures to the plaintiff’s left foot had healed. So far as the sural nerve is concerned, it is a sensory nerve - meaning it carries information from the skin and does not control muscle. (T219.9-12). The sural nerve runs on the outside of the foot (from the heel) to the top of the little toe (not other toes) and the tendons can be harvested. The loss of sensation that might be occasioned by an injury would only be on the outside of the foot and the top of the little toe. The fractures are not proximal to the sural nerve and there is 12mm of tendon, two of them separating the bones from the nerve.

3. [142]

   In terms of the impact such an injury might have on the ability of a person to stand and walk, the sural nerve is sensory and on the top of the foot and when you stand on your foot a person relies on the sensation of the sole of the foot. (T221-T223).

4. [143]

   In my view it is more likely than not that the sural nerve had no role to play in the plaintiff’s alleged pins and needles and numbness in her left foot. There is no real explanation as this being the cause of her fall. Therefore, it is my view that the injury she suffered to her left ankle on 21 July 2011 did not contribute to her fall on 7 January 2013. Hence, assessment of damages is only in relation to the first accident that occurred on 21 July 2011.

5. [144]

   Before I assess damages it is necessary that I refer to the plaintiff’s evidence concerning the Mount Burrell property where she proffers a different explanation in relation to economic loss. I will also refer to her unreliable evidence in relation to the ownership of the property at Bonogin.

Mount Burrell property

1. [145]

   In January 2015, the plaintiff and her current partner John Kleeman commenced living at the Mount Burrell property. The plaintiff gave convoluted evidence regarding her plans in relation to the Mount Burrell property. The owners of the property were overseas on a holiday during the time the plaintiff occupied the property. The plaintiff had discussed purchasing the Mount Burrell property with the owners for approximately $1,600,000. (T91.48-50). The plaintiff says it was her intention was to turn the property into a health retreat centre. (T92.20-22).

2. [146]

   No contract or agreement was formulated before the owners departed for overseas. The plaintiff agreed to pay rent in the sum of $5,000 per month until settlement. (Ex 3, p 2). According to emails exchanged between the plaintiff and the owners, a number of disputes arose between them. The plaintiff had stopped paying rent, which ultimately led to her and Mr Kleeman being evicted from the property.

3. [147]

   The plaintiff blames the owners for not being able to establish her businesses thereby resulting in a in loss of income. She says the reasons for her loss income were due to the owners’ lack of due diligence, duty of disclosure and duty of care. While the plaintiff wrote numerous emails to the owners regarding these issues, I shall refer to a few where she details the loss to her business and details how much physical work “we” (that infers herself and her partner) performed on the property.

4. [148]

   Some of the following emails contained emjois. I have omitted them.

5. [149]

   On 17 May 2016, the plaintiff emailed to the owners (Ex 3, pp 11-12):

6. [150]

   On 26 May 2016, the plaintiff emailed the owners stating (Ex 3, p 15):

7. [151]

   On 10 June 2016, the plaintiff wrote to the owners (Ex 3, p 22):

8. [152]

   On 11 June 2016, the owners replied (Ex 3, p 25):

9. [153]

   On 13 June 2016, the plaintiff emailed the owners (Ex 3, pp 24-25):

10. [154]

    On 21 June 2016, the plaintiff emailed the owners (Ex 3, pp 27-29):

11. [155]

    In these emails, the plaintiff did not mention any disability to her left foot but rather blamed the condition of the Mount Burrell property as the reason that she could not conduct her business.

12. [156]

    During 2015 and 2016, the plaintiff emailed the owners saying that she would be launching her organic head lice business in March 2016. She would be holding retreats at the property. She had organised the following retreats (Ex 3, pp 1-2):

13. [157]

    The plaintiff also told the owners that she would also be organising a retreat with her friends (Ex 3, pp 2-3):

14. [158]

    The plaintiff did not mention organising these events in her statement.

15. [159]

    In her emails the plaintiff told the owners that she had planted a fig tree, gourmet capsicums and tomatoes, a sugar plum tree and avocado tree, which she was establishing in pots first. The plaintiff in her emails also told the owners that “I” have carried out physical labour on the property. She advised that she and Mr Kleeman had been working like “Trojans”. According to the emails she had cleared and pruned the trees. She and Mr Kleeman had maintained the grounds and widened the walking track to three metres. The plaintiff also asked the owners for their postal address in the UK so she could post them an album so they could see the work they had done to the grounds, inside the house and the repairs they had undertaken. The plaintiff told the owners that she and Mr Kleeman had been working over 40 hours a week maintaining the property. This creates a very different impression to the one she portrayed in court and when asked to explain the reference in the emails to “I”. In cross examination the plaintiff gave the following explanation (T116.7-14):

16. [160]

    In cross examination the plaintiff gave the following evidence in relation to the termination of the lease before NCAT (T93-T95):

NCAT proceedings

1. [161]

   On 18 May 2016, the owners of the Mount Burrell property served a notice to terminate tenancy agreement on the plaintiff pursuant to s 87 of the Residential Tenancies Act 2010 (NSW).

2. [162]

   On 1 July 2016, NCAT made the following orders (Ex 10, Tab 18):

3. [163]

   The plaintiff gave evidence regarding court proceedings between her and her ex-partner involving property at Bonogin. She brought an application against her ex-partner and his companies in relation to a mortgage over the Bonogin property that she maintained had been fraudulently obtained in the Supreme Court of Queensland.

4. [164]

   On 19 and 20 November 2015, the proceedings were heard in the Supreme Court of Queensland. On 17 March 2016, Philip McMurdo JA handed down his decision: Jackson v Arawak Holdings Pty Ltd [2016] QSC 133. His Honour dismissed the proceedings and cross application and ordered that the caveat lodged by the plaintiff over the Bonogin property be removed.

5. [165]

   When giving evidence in this Court, the plaintiff denied that the proceedings had been dismissed. She was adamant that the proceedings were “still under litigation, it’s all under appeal and still being investigated.” (T87.1-22). Almost a year has passed since that judgment was handed down and the plaintiff has not lodged an appeal yet. However, she says that she has a document ready to file. The plaintiff also gave evidence that there are ongoing investigations into her ex-partner’s activities for fraud and forgery. She says investigations are being carried out by the CIB, ASIC and Interpol. When it was put to her that this was not true, the plaintiff replied “No, it is definitely true. It’s under – I’m actually under confidentiality.” (T88.38-39).

6. [166]

   Mr Kleeman’s evidence corroborated that the plaintiff’s case against her ex-partner involving the Bonogin property has not been finalised. During cross examination he gave the following evidence:

Alleged fall on 16 September 2015

1. [167]

   On 16 September 2015, the Pindara hospital notes record that the plaintiff was taken by ambulance to Pindara emergency centre suffering from vomiting, diarrhoea, dehydration and convulsions. The plaintiff agreed that she did have those symptoms and attended Pindara hospital but she did not know the dates because she has been to Pindara hospital three times by ambulance. Later in cross examination the plaintiff gave conflicting evidence. She gave evidence that she was not having a convulsion and has medical evidence being two EEG’s proving this. (T129.20-48).

Fall on 2 November 2015

1. [168]

   On 2 November 2015, the plaintiff appeared in her family law proceedings in Southport Federal Circuit Court. The plaintiff says that when she was outside the courtroom she felt numbness in her left foot and left leg. She says that her left leg gave way, she hit her head on the lift, fell backwards then hit her head on the tiled floor and was rendered unconscious.

2. [169]

   The plaintiff was taken to Pindara hospital by ambulance and while there did not complain that her fall was due to her foot. (Ex 10, Tab 15.119 and 125). It should be noted that the plaintiff’s partner, who was with her at Court on that day, was not asked any questions about this fall when he gave evidence.

3. [170]

   In Perry v Jackson [2015] FCCA 3530 (Ex 10, Tab 7) (the family law proceedings) Purdon-Sully J at [10] referred to the plaintiff having a seizure outside of the Court and an ambulance having to be called. His Honour at [14] noted that the plaintiff “has obvious health issues not just today”. Purdon-Sully J stated that both the plaintiff’s mental and physical was a concern in the proceedings regarding custody of the children. Further to this, Purdon-Sully J at [52] made an order that the plaintiff undergo hair follicle, drug and alcohol testing. This was an order that had been made previously but had not yet been complied with by the plaintiff.

4. [171]

   The plaintiff asserts that her fall on 2 November 2015 was the reason the Court decided to give custody of her children to her ex-partner because at that time “they suspected that she had epilepsy because of previous falls and current fall.” (Ex 3, [45]). The plaintiff’s driver’s licence was suspended. She could no longer drive her children to school. She asserts that this was another contributing factor towards her not being granted custody of her children. The plaintiff says that she has since been cleared of having epilepsy. She continues with the process of seeking custody of her daughters. It is her intention to have the case brought forward so it can be heard as early as possible.

5. [172]

   The plaintiff gave the following conflicting evidence regarding the drug and alcohol testing:

6. [173]

   In re-examination the plaintiff gave the following evidence as to why she had not undertaken alcohol and drug testing:

Medico-legal neuropsychological evidence

1. [174]

   Dr Lee a consultant medico legal psychiatrist prepared a report dated 17 February 2015. Dr Lee stated that it was difficult to provide a diagnosis as he could not exclude the proposition of abnormal illness behaviour. (Ex 6, Tab 4, p 111).

2. [175]

   Dr Shelley Keane a clinical neuropsychologist prepared a report for the plaintiff dated 30 April 2015. She recorded the plaintiff as being extremely anxious and commented that the plaintiff shook throughout the assessment and cried frequently. Dr Keane reviewed the MRI scans of 10 January 2013 and 6 April 2013 and suggested that the deficits demonstrated by the plaintiff in verbal memory function and executive functioning were consistent with a head injury. Dr Keane indicated that the plaintiff would benefit from a referral to a clinical neuropsychologist for treatment of her adjustment disorder. (Ex D).

3. [176]

   Dr Wendy Roberts a neuropsychologist was retained by the defendant. She prepared a report dated 24 June 2016. (Ex 6, Tab 2). She recorded that the plaintiff was experiencing debilitating levels of anxiety. Dr Roberts noted that on the current evidence it was likely the plaintiff had significant pre-existing problems with anxiety and depression. In addition, the plaintiff described to Dr Roberts the stress over a disagreement with her siblings regarding an enduring power of attorney for her mother. The plaintiff also told Dr Roberts of the bitter and prolonged family court proceedings, which resulted in the care of her daughters being taken away from her in November 2015. Dr Roberts opined that these factors contributed to a significant worsening of the plaintiff’s emotional state since July 2011. (Ex 6, Tab 2, p 45).

4. [177]

   Dr Roberts formed the conclusion that despite some abnormal findings on the MRI brains scans in January and April 2013, there was no evidence of organic dysfunction attributable to the incident in January 2013 where the plaintiff hit her head. Dr Roberts did not believe the plaintiff required treatment from a neuropsychologist. (Ex 6, Tab 2, p 46).

5. [178]

   Dr Roberts in her supplementary report dated 8 February 2017, formed the opinion that the plaintiff was a very unreliable historian. (Ex 6, Tab 2, p100). The plaintiff told Dr Roberts that prior to her left foot injury she had periods of being “a bit depressed or grief or something” but was “in a good place” and that the only emotional symptoms that she had prior to her left foot injury were “a bit of depression but not anxiety or anything like that”. The plaintiff states her anxiety and depression “really trebled after the foot injury and got progressively worse”. She blamed her left foot injury for the problems in her relationship. (Ex 6, Tab 3, p 98). Dr Roberts’ conclusion was that while the plaintiff’s emotional functioning deteriorated following the July 2011 accident, her problems were unlikely to be related to her left foot. She also found no evidence of cognitive dysfunction attributable to the incidents leading to this claim.

6. [179]

   In their joint report dated 10 February 2017, (Ex 6, Tab 7) Dr Roberts and Dr Keane both agreed that the plaintiff’s reported psychological problems were explained by factors unrelated to the fall at the hotel or the fall at her home. While they believe that the plaintiff has emotional issues that will adversely affect employability they both held the view that these issues are not related to the incidents. (Ex 6, Tab 7, p 167). Both these doctors were not called for cross examination. I accept the views expressed by Drs Roberts and Keane.

Damages

1. [180]

   An assessment of damages is to be done in accordance with the provisions of Part 2 of the Act. The burden upon the plaintiff to establish matters on the balance of probabilities is a reference to the legal onus of proof: see New South Wales v Doherty [2011] NSWCA 225 and Hirst v Sydney South West Area Health Service [2011] NSWSC 664.

2. [181]

   Damages are awarded as compensation for the damage suffered. It is accepted, and clearly understood, that it is impossible to use money to restore to a condition of physical wholeness a person who has suffered great personal injury. Therefore, all the law can do is to restore the person who has suffered so far as money can do.

3. [182]

   Damages cannot be perfect. In Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1, Dixon J stated at 13-14:

4. [183]

   Damages are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff may possibly have sustained: see Pamment v Pawelski [1949] HCA 43; (1949) 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 562 at 585 per Gibbs and Stephen JJ.

5. [184]

   Actual loss must be determined, but determination of actual loss is made even more difficult when the disabilities consequent upon the injuries suffered by a plaintiff are not clearly defined: see Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665 at 676.

6. [185]

   The plaintiff seeks damages for non economic loss, past and future economic loss, past gratuitous care, past and future medical expenses.

(1) Non economic loss

1. [186]

   The assessment of non economic loss is governed by the provisions of the Act. The definition of a most extreme case pursuant to s 16 of the Act was discussed in Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 at 68,014; Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 at 433.

2. [187]

   Non economic loss means any one or more of the following, pain and suffering; loss of amenities of life; loss or expectation of life; and disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.

3. [188]

   The plaintiff submitted that her non economic loss is at 33% of a most extreme case in the sum of $199,500: s 16(1) of the Act. The current maximum amount is $594,000: s 17 of the Act and s 3 of the Civil Liability (Non-economic Loss) Order 2010 (NSW).

4. [189]

   The defendant submitted that it is unrealistic to think that the plaintiff’s injury to her left foot is 33% of a most extreme case and any assessment of non economic loss should be modest and at best the plaintiff’s assessment of a most extreme case should be no more than 15% to 20% of a most extreme case. This assessment should take into account the plaintiff’s other concurrent conditions and the plaintiff has to prove the relationship between her pleaded injuries and her symptoms and disabilities.

The plaintiff’s life pre and post accident

1. [190]

   In about 2002, the plaintiff started her own real estate business, Hindsight Realty Pty Ltd. She says that she organised the purchase of multiple properties so that developers could then proceed with their plans. After her first child was born in 2004, the plaintiff ceased full time work. In December 2006, her second child was born. She says that she continued to receive an income from the Hindsight Realty for some years after she ceased working. The plaintiff says that her ex-partner, the father of her children, had a similar business and she says that she assisted him from time to time. Hindsight Realty has been dormant since 2011.

2. [191]

   Prior to the accident, the plaintiff claims that she was in the process of going back into real estate as this was where the majority of her income had always come from. I accept as a result of her left foot injury on 21 July 2011, she suffered pain and was unable to walk unassisted until November 2011. After November 2011 her incapacity to work as a result of her fall on 21 July 2011 was only a temporary incapacity. However, as a result of that injury I accept that the plaintiff had and still has difficulty with respect to prolonged standing, squatting and walking on steps or uneven ground.

3. [192]

   The plaintiff says that her whole life has fallen apart and that she is totally dependent on other people. She claims she is constantly in a state of anxiety and depression. She has lost her beautiful home on the waterfront and her children no longer attend private school. Her relationship had broken up and she is now dependent on her present partner to provide care and assistance. While the plaintiff attributes her problems to her left foot injury, in my view she had multiple emotional problems that led to her change in circumstances. She complains of constant memory loss and requires people to remind her on a daily basis of what she needs to do. She says that she has to make lists to remind herself to do things throughout the day. Her current partner corroborates her memory loss problems. While the plaintiff may blame her accidents for her “brain damage” and memory problems, the medical evidence does not support this claim.

4. [193]

   The plaintiff also says that she was a proud and happy mother, but all of this has changed. Since the accident she is always depressed and weeping around her children. She is aware that this must have a negative impact on them. She says that her whole life has changed and she will never get back to the position she was in prior to the injury to her left foot. She has lost custody of her children. Once again, her emotional problems are not due to the injury to her left foot.

5. [194]

   The plaintiff says that it was her intention to build up a business again once her children were securely at school and that has now been dashed. She says that she is not capable of concentrating on anything at the moment and cannot see any bright future work wise.

6. [195]

   So far as the plaintiff’s psychological and psychiatric problems are concerned, her lay evidence does not accord with the medical evidence. Drs Roberts and Keane agree that those problems are unrelated to either the first or second fall. It is more likely than not that these psychological and psychiatric problems were not caused by either accident. I make no allowance for them in my assessment of non economic loss.

7. [196]

   After the first injury on 21 July 2011 to the end of November 2011, the plaintiff was on crutches. After that she used a walking stick. She had difficulty cooking meals and doing housework, such as making beds and doing the laundry. Her left foot was in pain and she took medication. She says that she continued to experience chronic pain in her left foot but I do not accept this evidence as the plaintiff’s evidence is unreliable. However, I do accept that as a result of her first injury to her left foot, she experienced a temporary incapacity between 21 July 2011 and 30 November 2011 where she was unable to walk unaided. I also accept that she continued and will continue to have difficulty with prolonged standing, squatting, walking on steps or uneven ground.

8. [197]

   Taking all of these factors into account, I assess the plaintiff’s non economic loss at 20% of the most extreme case. This equates to $21,000.

(2) Past out of pocket expenses

1. [198]

   The parties had agreed on past out of pocket expenses in the sum of $2,733.05. This sum includes the Medicare payback.

Economic loss

1. [199]

   Section 12 of the Act provides for damages for past or future economic loss. It reads:

2. [200]

   In Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, the Court expressed the general principle in relation to an award for economic loss at [7] as follows:

3. [201]

   Also in State of NSW v Moss (2000) 54 NSWLR 536 at 559, Heydon JA at [87] said:

Past economic loss

1. [202]

   Senior counsel for the plaintiff conceded that it is difficult, if not impossible, to establish what her earning capacity would have been but for the accident in 2011, but given the plaintiff’s obvious skill in real estate, she would not have been earning anything less than the average weekly wage. Further, he says that given the opinions of the Drs Keane and Roberts the plaintiff’s economic loss should be based on two factors. Firstly, the fall in 2011; and secondly, the emotional problems that have arisen from the breakdown of her relationship with her ex-partner. (T285.18-24).

2. [203]

   According to senior counsel for the plaintiff, the starting point in the breakdown of the plaintiff’s relationship is the plaintiff’s fall in 2011 and the effect the injury to her left foot had on her relationship with her ex-partner. Senior counsel for the plaintiff submitted that if the Court were to find that the 2011 left foot injury was the straw that broke the camel’s back then the emotional liability and problems the plaintiff has suffered since should form part of her claim for economic loss and therefore result in the plaintiff obtaining a bigger buffer. (T287.14-20).

3. [204]

   In all of these circumstances, the plaintiff submitted that she is entitled to significant damages for the loss of opportunity to be able to run her real estate business because of the physical problems which she suffered. Prior to the left foot injury, the plaintiff gave evidence that she was working in the third largest real estate business on the Gold Coast that employed about 500 people. (T16.49). While she was working there, she states she won the number one real estate agent award. (T16.33). She then set up her own company, Hindsight Realty and was clearly someone with significant ability and prospects in real estate.

Defendant’s submissions

1. [205]

   Senior counsel for the defendant submitted that in relation to the self employed neurolinguistics business, the claim is a “loss of opportunity claim” and the Court needs to approach this task by evaluating the chance: see Malec v J C Hutton Pty Limited (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; and Fightvision Pty Limited v Onisforou (1999) 47 NSWLR 473. Senior counsel for the defendant also submitted that no damages should be awarded as any alleged chance was either speculative or negligible or both: (Malec at 638 and 643 and Sellars at 332 and 335). According to the defendant in order to establish economic loss the Court needs to consider and evaluate the nature of the business, the nature of the market, likely returns and fundamental matters of this kind. The defendant says that no commercial opportunity has been established by the plaintiff and therefore there is no loss or medical evidence to support the view that the plaintiff was unable to physically have undertake this work.

Consideration

1. [206]

   Firstly, I shall refer to the plaintiff’s financial documents that relate to both before and after the first accident.

2. [207]

   The plaintiff provided notices of assessment for the financial years ending 2008, 2009, 2010, 2011 and 2012. (Ex C, Tab - Economic loss). The assessments of the plaintiff’s taxable income as follows:

3. [208]

   The plaintiff also provided a letter from ASIC dated 20 February 2004, welcoming her to her new role as director of Hindmarsh Reality; ANZ business cash management statements, addressed to the director of Hindsight Realty, for the period 22 March 2004 to 20 October 2006, showing the plaintiff's largest deposits as being $100,870 on 8 April 2004 and $494,560 on 2 June 2005. However, these financial transactions do not record the source of these funds. On 14 April 2004, the sum of $80,696 was withdrawn and on 3 June 2005, four withdrawals were made totaling $44,516. Centrelink payment summaries for the period 15 August 2013 to 30 June 2016 total $20,774 gross.

4. [209]

   St George statements in the name of the plaintiff for the period 9 September 2007 to 8 September 2011 were also provided. (Ex C, Tab - Economic loss). These St George statements show 23 deposits totalling $191,800. There was also a total of $189,704.76 in withdrawals leaving an overall balance of $2,096. (The bank statement for the period 9 March 2008 and 9 June 2008 was not supplied).

5. [210]

   Past economic loss is for a period of nearly six years from 11 July 2011 to 23 June 2017 being 311 weeks.

6. [211]

   I accept that the plaintiff was totally unfit for work from the date of the accident, 21 July 2011 to 31 October 2011, a period of 15 weeks. However, it is difficult to discern the success of the plaintiff’s earlier real estate business because firstly, her evidence is unreliable and secondly, she had not been working in that occupation since 2004 when she left work to raise her two children.

7. [212]

   In July 2011, the plaintiff says that she was planning on re-entering the workforce. In order to do so she was reskilling by undertaking courses such as the neurolinguistic course. She says she had purchased a Quit Smoking Franchise for approximately $20,000. I have examined the plaintiff’s financial records for 2010 and 2011. While she paid a sum of $13,000 paid to “nlp quit Egypt sharelord” on 19 October 2010 it is unclear what it is for. It may have been for the three courses she undertook namely NLP certification training, quit cigarettes in 60 minutes certification training and NLP master practitioner training. The sum of $13,000 is not the sum of “$20,000” that she says that she paid for the Quit Smoking Franchise. The onus is on the plaintiff to provide clear documentation to show that she paid for the Quit Smoking Franchise. On the balance of probabilities, I am not satisfied that she had, in fact, purchased the Quit Smoking Franchise.

8. [213]

   In assessing both past and future economic loss, I take into account the joint opinions of Drs Keane and Roberts that there are emotional issues which would adversely impact of the plaintiff’s employability but these were overwhelmingly unrelated to the plaintiff’s left foot injury on 21 July 2011 and her fall at her home on 7 January 2013. Dr Keane and Roberts are of the opinion that “there are no cognitive issues adversely impacting on her employability (past, present and future) … cognitively, there is no reason why [the plaintiff] could not be in employment.” (Ex 6, Tab 7, p 167). In my view, the plaintiff’s emotional problems that have arisen from the breakdown of her relationship with her now ex-partner are not related to the first injury to her left foot.

9. [214]

   Also in assessing both past and future loss, I take into account the joint opinions of Drs Endrey-Walder and Dr Sharwood that the plaintiff sustained undisplaced fractures of the medial and lateral cuneiform bones and the cuboid bone on the left foot that have healed; that her capacity to work as a result of her fall on 21 July 2011 was a temporary incapacity that lasted for the period she was unable to walk unaided (that is until November 2011); and that as a result of the accident on 21 July 2011 the plaintiff will have difficulty with prolonged standing, squatting, walking on steps or uneven ground.

Work, study and plans after the first accident

1. [215]

   After the first accident the plaintiff organised two seminars. The first occurred in November 2011 when she organised a four day seminar on the Gold Coast for Ian R Crane a pan-geopolitical analyst from England. In September 2012, the plaintiff travelled to London to have a vacation and to meet with Hemal Radia who runs a business called Manifesting and Law of Attraction. She arranged a second conference when Hemal Radia came to Australia to speak at a seminar on the Gold Coast. She organised his flights, accommodation and function centres. She also organised the online advertising, the sale of tickets and the event website. She was required to be present at the Gold Coast seminar as she was the event coordinator. (T46-T50). There is no evidence as to her earnings in relation to these conferences.

2. [216]

   In 2014, she completed a Certificate IV in Business with difficulty. This was a one day a week course over a period of four months. The plaintiff gave evidence that she had she had trouble understanding and with her memory while doing the course. She was assisted with the computer skills and course details that she could not comprehend. (T26.50; T27.1-3). While she may have had these difficulties, they are not attributable to the 2011 injury to her left foot.

3. [217]

   The plaintiff’s evidence is that she intended to purchase the Mount Burrell property (previously described) for $1,600,000 and turn the property into a health retreat centre. This was an aspirational desire but it is not based on a financial reality.

4. [218]

   Since November 2011, I find that the plaintiff was capable of undertaking paid employment as this accords with the opinions of the orthopaedic surgeons and is borne out of the fact that she had organised her first seminar. I accept that there are some limitations as to the type of work she can perform. Those limitations involve prolonged standing, squatting, walking on steps or uneven ground. If the plaintiff returned to the real estate business, I accept that she would have difficulties inspecting properties that required her to walk up and down steps and on uneven ground. As I stated earlier, despite the plaintiff’s oral evidence which I have found to be unreliable, without the benefit of Hindsight Reality’s financial records, or an accountant’s report based on these records, I am unable to assess the plaintiff’s past economic loss should she have returned to the real estate business by reference to a weekly sum. If she decided to establish a Quit Smoking Franchise or event management business or some other business it would also have taken time to be financially productive. Therefore, I cannot assess her diminution of earning capacity in terms of a weekly sum.

5. [219]

   Overall, it is not clear what the plaintiff’s working life would have been but for the first accident. It is unclear whether she would have worked fulltime, part time, on a casual basis or with some period of unemployment or a mix of all. In my view, in these circumstances, the appropriate approach to past economic loss is to assess it by way of a buffer.

6. [220]

   I make a finding that the plaintiff was totally incapacitated and unable to work due to her left foot injury for the period from July 2011 until November 2011. After that the plaintiff had some physical limitations that diminished her earning capacity that may have resulted in financial loss. As I have said it is certainly not clear when or if the plaintiff had attempted to start her own business. If she did so, it is not known how long the business would have taken to establish, what financial outlay would have been incurred and whether the business would have been profitable. Taking these findings and assumptions into account, I assess the plaintiff’s past earning capacity of 310 weeks as a lump sum of $20,800.

Future economic loss

1. [221]

   The plaintiff submitted that the assessment of future economic loss should be based on a diminution in earning capacity which is or may be productive of a loss: see Graham v Baker (1961) 106 CLR 340; Medlin v SGIVC (1995) 182 CLR 1. When assessing future loss of earning capacity, regard must be had to s 13(1) of the Act.

2. [222]

   Claims for future economic loss are governed by s 13 of the Act. It reads:

3. [223]

   Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99 concerns the award of a “buffer” or as it sometimes is known, “a cushion”. Basten JA (with whom McColl and Macfarlan JJA agreed) stated at [84]:

4. [224]

   It is also appropriate that I assess the plaintiff’s future economic loss by way of a buffer as it is not possible to assess her future loss of earning capacity on a weekly basis based on the assumptions that I have set out under past economic loss. The plaintiff is 48 years old and she has 19 years of working life left. In the future she will have a small impairment in her earning capacity that may result in financial loss. I assess a lump sum of $50,000 for future economic loss.

Attendant care services

1. [225]

   Section 15 of the Act reads:

Past gratuitous attendant care

1. [226]

   For past gratuitous care the plaintiff claims 13.5 hours per week at $28 per hour from 22 July 2011 to 9 January 2013,13.5 x $28 x 72 weeks = $27,216. From 10 January 2013 to 23 June 2017 the plaintiff claims 9 hours per week at $28 per hour. This equates to 9 x $28 x 232 = $58,464. The total sum claimed by the plaintiff is $27,216 + $58,464 which equates to $85,680.

2. [227]

   Before the injury to her left foot in 2011, the plaintiff was a fulltime mother and house carer. She says that she attended to all of the household needs including preparing breakfast, her daughters’ lunches, driving them to school, cooking dinner, cleaning, and carrying out grocery shopping. Before July 2011 the plaintiff had a cleaner who provided two hours of cleaning per week. (T146.5-6). She was and still is totally independent in her self-care. After the July 2011 accident the plaintiff told Ms Wilson (an occupational therapist) that she required moderate assistance for the first 6 months after her first injury and she was required to hire private services for cleaning 8 hours per week for the first 3 months and then once per week for 4 hours per week. (Ex D, Report 30 May 2014, p 19; T144-T145).

3. [228]

   The plaintiff gave a contradictory account of her mother’s involvement in her domestic care. The plaintiff told Ms Wilson that after the first fall until January 2013, her mother visited one a week to assist with shopping and laundry. (Ex D, Report 30 May 2014, p 19). However, in cross examination the plaintiff gave the following evidence (T146.18-37):

4. [229]

   This is another example of the plaintiff’s unreliable evidence.

5. [230]

   Initially, Dr Sharwood expressed the view that the plaintiff would not require any domestic assistance. (Ex 6, Report 11 November 2013, p 6). Dr Endrey-Walder was provided with the report by occupational therapist Ms Wilson who recommended that the plaintiff would require approximately 3 hours per week for domestic assistance. (Ms Wilson’s recommendation relates to a period from January 2012 to March 2014). Dr Endrey-Walder agreed with this assessment. (Ex D, Tab - Medico Legal, p 11). However, in their joint report, Drs Sharwood and Endrey-Walder agreed that the plaintiff might need assistance with household cleaning.

6. [231]

   Drs Kearne and Roberts expressed the opinion that there was no need for care based on psychological, cognitive grounds. (Ex 6, Report 15 February 2017)

7. [232]

   Until she met Mr Kleeman, the plaintiff was provided with assistance by friends or family members (other than her mother). Once again, there is no evidence from friends or family members to substantiate this claim. She says that she required family members to assist her in all areas of household cleaning and shopping. She says also says that she needed assistance with laundry, changing of bed linen and garden care. The plaintiff says that she has a reduced tolerance to sit or stand for long periods due to the residual disabilities to her left foot. I accept that she has a reduced tolerance to standing for long periods. The doctors did not say that the plaintiff had reduced tolerance to sitting for long periods. While I accept that during this period the plaintiff had the need for some attendant services commercial and/or gratuitous, the onus rests on the plaintiff to establish on the balance of probabilities who helped her, what they did and for how long. There is no other affidavit evidence or any documentary evidence (other than that of the plaintiff) to support this claim. Hence, I disallow it.

8. [233]

   The plaintiff’s occupational therapist, Ms Wilson and the defendant’s occupational therapist, Ms Stephanie Johnson provided a joint report dated 2 March 2017. They agreed that for the period from 21 July 2011 to 30 November 2011, the number of hours required by the plaintiff for assistance was 13 to 14 hours per week.

9. [234]

   This was the period when the plaintiff was on crutches and her fractures were healing. I accept that she would have required domestic care during this period that would have included household cleaning, shopping, assistance with laundry and changing of bed linen. This is a period of 15 weeks when the plaintiff had the need for 13.5 hours of domestic care at $28 per hour had she provided some evidence from those who performed the work. Hence, I do not allow this amount.

10. [235]

    From 30 November 2011 to 30 January 2012, the plaintiff would have required some domestic care but not as much as she was recovering and using a walking stick to ambulate. The occupational therapists disagreed regarding the amount of care required by the plaintiff for this period. Ms Wilson is of the opinion that the care required over this period would have been 13.5 hours per week. Ms Johnson maintained her opinion that the plaintiff’s requirement for domestic assistance would have been reduced to 6 to 8 hours per week. (Ex 6, Tab 9, pp 181-182).

11. [236]

    Overall, for the period from the date of the first accident on 21 July 2011 to 30 January 2012, both occupational therapists recommend a number of hours greater than 6 hours per week. Had the plaintiff provided some reliable evidence as to who provided care, for how long and what they did for this period the plaintiff would have fulfilled the 6 hours per week for 6 months continuous threshold and would be entitled to gratuitous domestic care had she provided some evidence.

12. [237]

    Both occupational therapists agree that for the period from the end of January 2012 to January 2013, the plaintiff’s requirement for domestic assistance was three to four hours per week for vacuuming, mopping and low level cleaning in relation to the first accident. (Ex 6, Tab 9, p 183). 3 to 4 hours falls under the threshold set out in s 15(3) of the Act. Therefore I make no allowance for past domestic care after January 2012.

13. [238]

    The occupational therapists disagree in relation to the amount of care required by the plaintiff after the second injury on 7 January 2013. Ms Johnson was of the view that there was no additional domestic assistance required by the plaintiff as a result of that accident. Ms Wilson was of the view that the plaintiff’s brain injury continued to affect her daily as a result of ongoing issues with memory and concentration as well as increased anxiety. Ms Wilson reported that the plaintiff relied on her partner on a daily basis for support with activities of daily living for a total of 9 hours per week. As I have already made a finding that the defendant is not liable for the injuries suffered on 7 January 2013, I accept and prefer the opinion of Ms Johnson of 3 to 4 hours per week as it accords with my finding. The plaintiff has not met the 6 hour threshold for past gratuitous assistance for this period. Hence, no allowance is made for gratuitous attendant care for the period 7 January 2013 to January 2015.

14. [239]

    After January 2015, Mr John Kleeman the plaintiff’s partner, provided the plaintiff with attendant care services. He gave evidence that he performs all the daily domestic duties, all the driving and household maintenance. His evidence is that he cooks meals almost seven days per week and this takes 30 minutes per meal. 30 x 7 (210 minutes) = 3.5 hours per week. He performs all the general cleaning, vacuuming, cleaning the bathroom and he cleans the house generally twice per day and the bathroom every evening. He spends about 10 minutes performing these tasks. (T177-178). That is 20 minutes per day x 7 days per week (140 minutes) = 2.3 hours per week. He vacuums the carpets twice a week which takes approximately 15 minutes each clean. He mops the floors twice a week, taking 10-15 minutes for each clean. Mr Kleeman performs a daily load of washing, which takes 5-10 minutes. He also does the shopping, which takes about half an hour. He also does a big shop on a weekly basis. He purchases fresh fruit and produce on a Tuesday and Thursday of each week. He spends three hours per week on shopping. He also assists with the household maintenance and the heavy household tasks. The assistance provided by Mr Kleeman from the beginning of February 2015 to date averages 9.8 hours per week. Half of these services are for his own benefit. Some of the tasks that he performs do not relate to the plaintiff’s physical restrictions caused by her left foot injury. The plaintiff should be able to perform household tasks, such as cooking, washing up and washing clothes. I accept Ms Johnson’s opinion that there is a need for the plaintiff to have 3 hours of gratuitous care per week. This falls under the threshold required by s 15(3) of the Act. Hence, no allowance is made for gratuitous domestic care.

Future attendant services - commercial

1. [240]

   The plaintiff claims 9 hours per week at $40 per hour x 924.8 for future commercial care in the sum of $332,928. The plaintiff submitted that any future care should be allowed on a commercial basis as Mr Kleeman gave evidence that he gave up his work in order to look after the plaintiff. He stated that if he did not have to look after her, he would be back in the workforce. On that evidence, the plaintiff submitted that she is entitled to commercial care. The occupational therapists agree on $35.00 per hour as a rate for commercial care. If the Court were to award money for paid commercial care the plaintiff says that she would avail herself of it. She estimates her needs are presently about 7 hours per week.

2. [241]

   Claims of this kind are not required to meet the threshold pursuant to s 15 of the Act: see Miller v Galderisi [2009] NSWCA 353; Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343. The authorities make clear that a plaintiff needs to demonstrate not only a need for the services, but also that “gratuitous assistance to satisfy the need was unavailable”: see Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [148] per Tobias AJA. The defendant submitted that the plaintiff’s evidence was inconsistent with the prospect of there being any commercially paid care.

3. [242]

   In relation to future care, Ms Johnson is of the view that the plaintiff requires one hour per week for assistance with low level cleaning, such as cleaning the bath tub, shower recess, under the bench oven and the lower level of the refrigerator skirtings. I accept Ms Johnson’s opinion.

4. [243]

   I note that prior to the first injury, the plaintiff paid for two hours of commercial care. Mr Kleeman gave evidence that he was the managing director of a licensed truck dealer and then a chairman of a charity for 12 months. He ceased working in 2015. He is currently receiving a Newstart allowance which requires him to look for employment. (T182.11-49). There is no evidence to support Mr Kleeman’s working history. The plaintiff says she would like to have commercial care. On the balance of probabilities, Mr Kleeman would not provide one hour per week of gratuitous assistance to the plaintiff. One hour per week of gratuitous attend care falls below the threshold. Hence, I make no allowance for commercial care or gratuitous care.

Future medical expenses

1. [244]

   The plaintiff seeks a buffer for future medical expenses. For ongoing psychological, neurological, orthopaedic and acupuncture treatment the plaintiff claims a buffer of $50,000 and for ongoing analgesia and medication for depression a buffer of $20,000. This equates to the sum of $70,000. The defendant submitted that aside from the treatment in the immediate post injury period, the plaintiff has no injury related need for any treatment.

2. [245]

   The plaintiff currently takes the following medication, Sertraline 50mg, Temazepan 10mg, and Alprax 1mg. She attends Drs Lesley Smith, Jone Gregor at the Bundall medical centre. She sees these doctors quite often for treatments and referrals to specialists and also medical certificates as required. She continues to take anti-depressant medication at a cost of $10 per week.

3. [246]

   Dr Sharwood is of the opinion that no further treatment is required whereas Dr Endrey-Walder suggested that nerve conduction studies be performed. (Ex 6, Tab 8, p 172). However, if nerve conduction studies showed a problem with the sural nerve the defendant says that as the evidence made clear, that would only aid diagnosis as there is no treatment. Hence, there is no utility in making an allowance for this test.

4. [247]

   Drs Keane and Roberts agree that cognitively, no treatment was required, then or now. The doctors did not specifically deal with the need for treatment for any emotional issues, but in light of their opinions that they were “overwhelmingly unrelated” to the plaintiff’s left foot injury in July 2011 and her fall in January 2013 there is no need for such treatment. (Ex 6, Tab 7, pp 167-168). I make no allowance for future medical expenses.

5. [248]

   The result is that I enter judgment in favour of the plaintiff in the sum of $94,533.05. (See Schedule attached).

6. [249]

   Costs are discretionary. Costs follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.